HomeMy WebLinkAbout00-02211
McGRAW-LOCK BUILDERS
Plaintiff
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO.Q:')-:2<11 S e,ollT~
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vs.
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M. JOSEPH GILL
Defendant
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CIVIL ACTION - LAW
NOTICE TO DEFEND AND CLAIM RIGHTS
YOU HAVE BEEN SUED IN COURT. If you wish to defend against
the claim set forth in the following pages, you must take action
within twenty (20) days after this Complaint and Notice are
served, by entering a written appearance personally or by attorney
and filing in writing with the Court your defenses or
objections to the claims set forth against you. You are warned
that if you fail to do so, the case may proceed without you and a
judgment may be entered against you by the Court without further
notice for any money claimed in the Complaint or for any other
claim or relief requested by 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 FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
COURT ADMINISTRATOR
CUMBERLAND COUNTY COURTHOUSE
ONE COURTHOUSE SQUARE
CARLISLE, PA 17013
(717) 240-6200
McGRAW-LOCK BUILDERS . IN THE COURT OF COMMON PLEAS
.
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
.
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vs. NO. tHJ - .22 J I ~ Cu;u
M. JOSEPH GILL . CIVIL ACTION - LAW
.
Defendant
COMPLAINT
AND NOW, comes Plaintiff McGraw-Lock Builders, by its
attorney, Herschel Lock, Esquire, and files its Complaint as
follows, to wit:
I. Plaintiff McGraw-Lock Builders is a general partnership
having as its principal place of business 301 Market Street,
Lemoyne, Cumberland County, Pennsylvania.
2. Defendant M. Joseph Gill is an adult individual residing
at 104 Fairway Drive, Dillsburg, York County, Pennsylvania.
3. At all times relevant hereto Plaintiff was engaged in
the business of constructing, inter alia, singe family dwellings.
4. On or about October 18, 1999, Plaintiff and Defendant
entered into a Construction Agreement which called for Plaintiff
to erect and construct a single family dwelling on Defendant's lot
located at Lot No. 7 of Irish Glen, Deihl Road, Upper Allen
Township, Cumberland County, Pennsylvania (see Exhibit "A"
attached hereto).
5. In Paragraph 3 of their aforesaid Construction Contract,
Plaintiff and Defendant agreed, inter alia, that if Plaintiff
encountered a "special excavation" situation during its
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construction of Defendant's house the costs thereof would be born
by Defendant.
6. Plaintiff did in fact encounter a "special excavation"
situation on Defendant's lot as a result of the presence of a
large amount of rock thereon.
7. At the time this situation was discovered, Defendant was
apprised of the situation by Plaintiff and instructed Plaintiff to
do the excavation work now required after deciding that he,
Defendant, would have his own blaster dynamite the rock present.
8. The cost of the special excavation and hauling of debris
resulting therefrom was Three Thousand Seven Hundred Sixty-three
Dollars and Seventy-five Cents ($3,763.75) (see Exhibit "B"
attached hereto) which, in accordance with the aforesaid
Construction Contract, was the responsibility of Defendant to pay.
9. Despite repeated requests therefore by Plaintiff,
Defendant has refused to pay the aforesaid cost engendered by the
special excavation required on his lot.
WHEREFORE, Plaintiff prays your Honorable Court to enter
judgment in its favor and against Defendant in the amount of Three
Thousand Seven Hundred Sixty-three Dollars and Seventy-five Cents
($3,763.75) .
Respectfully submitted:
DATED:
4/10/00
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HERSCHEL LOCK, ESQUIRE
Attorney for Plaintiff
3107 North Front Street
Harrisburg, PA 17110
(717) 238-6661
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VERIFICATION
I verify that the statements made in the foregoing Complaint
are true and correct. I understand that false statements made herein
are subject to the penalties of 18 Pa. C.S. Section 4904 relating to
unsworn falsification to authorities.
DATED:
1-1-10- t?O
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CONSTRUCTION AGREEMENT
THIS AGREEMENT made this 1'iS' day of October
, 1999,
between M
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of
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Pennsylvania, hereinafter "Owner", and McGraw-Lock Builders of
Harrisburg, Pennsylvania, hereinafter called "Contractor".
WITNESSETH, that the parties, for the consideration
hereinafter set forth, agree as follows:
I. Contractor shall furnish the material and perform the
work required to erect and construct a single family residence,
hereinafter called "Structure", at the location known and
numbered as Lot ~, Diehl Road, Upper Allen Township, Cumberland
County, Pennsylvania hereinafter called "Premises".
2. The structure shall be erected in accordance with the
plans and specifications which are attached hereto and made a
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part hereof. The exact method of construction and the structural
configuration shall be that which the Contractor deems necessary
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for the proper execution and completion of the work. The
Contractor shall have the unilateral right to make such
adjustments to structural components during construction as the
Contractor may find necessary in the course of construction or
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Which are required by government regulations and to make
substitutions of materials of substantially equal quality to
EXHIBIT "A"
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those originally specified when the Contractor finds it necessary
or expedient.
3, The Contractor shall, at its expense, stake out the
foundation on the premises and shall obtain Owner's approval of
placement of the structure thereon prior to the commencement of
construction; shall excavate and erect a foundation; shall
machine backfill the foundation with materials excavated from the
site and rough grade the site, and; shall complete the structure
within one hundred twenty (120) days from ,the date of the
stakeout of the foundation. These obligations of the Contractor
shall be limited as follows:
a, Should additional fill be required to adequately
backfill the foundation of the structure and rough grade the
site, the Contractor shall supply equipment, labor and materials
so required, with the cost of such equipment, labor and materials
to be borne by the Owner and payable by them to the Contractor
immediately upon the completion of the backfill of the foundation
and rough grading of the site,
b,
In the event the Contractor encounters either
solid or machine rock, quicksand, sinkholes, water, springs or
other unusual conditions during the course of construction and in
Contractor's sole judgment it is necessary to remove said rock by
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blasting, drilling or
or to install special
footings, sub-base, foundation walls, or drainage systems, and
such work is not now set forth in the plans and specifications,
or to take any other measures not set forth in the plans and
specifications necessary to minimize or eliminate such unusual
conditions, or to perform any other work as may, in the judgment
of the Contractor, be required by the law or regulations of any
local, state or federal government unit or agency, the Owner
shall have the option of ordering such work done by the
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Contractor, with the expense of such equipment, labor and
materials necessary to complete such work to be borne by the
Owner, or of terminating this Contract, The Owner shall furnish
the Contractor with written notice of their election within (10)
days after Contractor notifies them of the need of such work. In
the event Owner elect to terminate the Contract, Owners shall pay
the Contractor within ten (10) days of such election Contractor's
cost of equipment, labor and materials furnished to the date of
delivery of such written notice of such election to Contractor
and this Contract shall thereafter be null and void.
c, If the Contractor is delayed at anytime in the
progress of construction on account of any act or neglect of the
Owner or their agents, any separate Contractor employed by Owner,
changes ordered in the construction, labor disputes, fire unusual
delay in transportation, adverse weather conditions, unusual
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ground conditions as set forth in the preceding, subparagraph,
unavoidable casualties, arbitration, or any cause beyond the
Contractor's control, the time of completion shall be extended
accordingly.
4. The Contractor shall execute a stipulation against
liens, executed as a waiver of its rights to file a mechanics'
lien, which shall be filed by the Owner in the Prothonotary's
Office prior to commencement of construction.
5. The Contractor shall purchase and maintain insurance
for protection from the claims set forth herein which may arise
out of or result from the Contractor's operations under this
Agreement:
a, Claims under workers' compensation, disability or
similar employees benefits acts;
b, Claims for damages for bodily injury, occupational
sickness or disease, or death of contractor's employees;
c, Claims for damages insured by personal injury
liability coverage which are sustained by any person as the
result of an offense directly or indirectly related to the
employment of such person by the Contractor or by any other
person;
d. Claims for damages, other than to the structure
itself because of injury to or destruction of tangible property,
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The Owner shall pay Contractor or shall cause to be ~
paid to Contractor the sum of Eighty Eight Thousand Three Hundred
including loss of use resulting therefrom.
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6,
Fifty ($88,350,00) Dollars in consideration for Contractor's
construction of the structure set forth in the accompanying plans
and specifications. Such payments shall be made at times listed
in the specifications but in no event, shall be made later than
five (5) days after written request by the Contractor therefore:
a. Changes, alterations or variations in the
accompanying plans and specification may be made by the Owner
after consultation with the Contractor without additional
compensation being paid to the Contractor, provided that such
changes, alterations or variations do not increase the labor to
be expended by the Contractor and do not increase the cost of
materials, Changes, alterations or variations which increase
labor to be expended by the Contractor or increase the cost of
materials shall result in Owner paying the Contractor additional
sum for labor furnished by Contractor and the increase cost of
materials. The cost for such changes shall be paid by the Owner
contemporaneously with the execution of the change order,
otherwise no such changes shall be claimed by Contractor. Any
such changes and the costs thereof shall be set forth in writing
and executed with the same formality as this document prior to
such work being done.
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7, The Contractor shall be responsible for securing all
required building, zoning, subdivision, water system, and/or
sewage disposal permits as may be required by any local, state,
or federal governroental unit or agency and shall do so at its own
expense.
8. The Owner shall, prior to the commencement of
construction, procure and maintain fire insurance with extended
coverage and coverage for theft, malicious mischief and insurance
upon all materials in or adjacent to the structure and intended
for user therein, to the full insurable value thereof, with loss
payable to the mortgagee, banking institution, Contractor, or
otherwise all such damage to said premises and structure by fire,
windstorm or other casualty, and liability to the public is
hereby assumed by the Owners,
9. The Owner covenants, represents and warrants that their
land conforms to all zoning, planning, subdivision regulations
and other building requirements applicable to the premises or
will conform prior to the start of construction; that the
premises is suitable for the construction proposed under this
agreement; that they are the Owner of record of the premises;
that there are no unrecorded deeds; that Owner has good and
marketable title to the premises; that a perpetual right-Of-way
for utility service exists to the parcel and that there are no
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actions, cause~ of action, or claims which might at a later date
impair title; and further that the Owners shall, at their
expense, remedy any action, cause of action, condition or
liability which may arise at any time which causes said title to
be unacceptable to the Contractor or any reputable title
insurance company, Furthermore, Owner does covenant, represent
and warrant that the construction site is accessible by a roadway
and the Owner's land surrounding the construction site is
sufficient in size to permit trouble free movement of
Contractor's vehicles, machinery and equipment incidental to
construction.
10. Should Owner, without cause, withhold any payment or
delay in approving payments which such payments are due according
to the schedule of payments hereinafter set forth, Contractor
shall have the option of stopping construction, and if such
option is elected, shall notify owners of such stoppage in
writing which shall set forth Contractor's reasons for such
stoppage. Contractor shall thereafter be under no obligation to
resume construction until Owner has rectified their withholding
of or delay in authorization of payments. The rights of the
Contractor in this paragraph shall remain a continuing right
until receipt by the Contractor of full and final payment in
accordance with this Agreement. Contractor shall in no way be
liable for any loss or damages whatsoever suffered by the Owner
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as the result of such stoppages.
II. The OWner shall have reasonable acccess to the site at
his risk provided specifically, however, that owner shall not in
any fashion interfere with the performance of work at the site by
the Contractor or his subcontractors. The owner shall not give
orders directly to subcontractors, but will deal only with the
Contractor, Contractor will not be responsible for any changes
made by subcontractors at the direct request of the OWner.
12. The OWner shall have no right to occupy the structure
prior to the completion of specified construction and payment in
full by the OWner, unless an permission is given in writing by
the Contractor,
13, The parties particularly understand and agree that each
covenant, representation, and warranty herein contained is
severally of the essence of this Agreement and the breach or
violation of anyone by as party shall excuse performance by the
other party, upon notice of such violation or breach, The
violation party shall have ten (10) days to rectify such
condition, and their or its failure to take such actions shall at
the other party's option cause this Agreement to terminate.
14. The Contractor guarantees all work performed by it
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against structural defects for a period of two (2) years from the
date of completion of and against all other defect for a period
of one (1) year therefrom. Additionally, Contractor warrants
that the structure shall meet or exceed minimum insulation
requirements for such a structure current at the time of the
execution of this Agreement.
15, This Agreement, which includes the plans and
specifications referred to herein, constitutes the entire
Agreement between the parties, No change therein and no
alteration, variation, or so-called "extras" shall be asserted by
either party unless a supplemental written agreement or
memorandum is executed by both parties, setting forth in
substance, the nature thereof and the extra cost or deduction,
as the case may be, resulting therefrom, It is expressly agreed
that neither party will ever assert any waiver of this
requirement or assert that any change, alteration, variation, or
"extra" has been agreed to orally or other than in writing. Both
parties hereby agree that no claim or defense of so-called
"waiver" mayor shall be used by either in any action upon this
Agreement, The parties intend that any claim, defense,
allegation, or assertion or either party must always be supported
by a writing, duly signed by both parties hereto.
16, This Agreement shall not be assignable by either party
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hereto without the prior written consent of the other party.
17. This Agreement shall extend to the executors,
administrators and assigns of the Owner and the Contractor. Any
other written agreement between the parties required by any
financing institution hereafter shall be supplemental hereto.
IN WITNESS WHEREOF, the Owner and the Contractor have
executed and delivered this Agreement the day and year first
above written,
Signed, seal and delivered
in the presence of
OWNER W
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P_O. BOX 6194
HARRISBURG PA 17112
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EXHIBIT "B"
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McGRAW-LOCK BUILDERS,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERlAND COUNTY, PENNSYLVANIA
vs.
: NO. 2000-2211 Civil
M. JOSEPH GILL,
: CIVIL ACTION - LAW
Defendant
NOTICE TO PLEAD
TO: McGraw-Lock Builders
301 Market Street
Lemoyne, PA 17043
You are hereby notified to file a written response to the enclosed New Matter and
Counterclaims within twenty (20) days from service hereof or a judgment may be entered against
you.
~~~
R. Mark Thomas, Esquire
Attorney for Defendant M. Joseph Gill
101 South Market Street
Mechanicsburg, P A 17055
(717) 796-2100
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McGRAW-LOCK BUILDERS,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERlAND COUNTY, PENNSYLVANIA
vs.
: NO. 2000-2211 Civil
M. JOSEPH GILL,
: CIVIL ACTION - LAW
Defendant
DEFENDANT'S ANSWER. NEW MATTER AND COUNTERCLAIM
AND NOW, comes the defendant, M. Joseph Gill, by and through his attorney, R. Mark
Thomas, Esquire, and files this Answer and New Matter to the Complaint filed by the plaintiffs,
to wit:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted in part, denied in part. It is admitted that paragraph 3(b) of
Construction Agreement requires owner to pay for blasting, drilling or special excavation of
rock, but it is denied that plaintiff encountered a "special excavation" situation.
6. Denied. Nowhere in the Construction Agreement is the term "special excavation
situation" defined. Plaintiff and defendant were both aware of the presence of rock on the site
and defendant paid additional monies for the drilling and blasting. Paragraph 3 requires plaintiff
to excavate the site for the foundation and therefore it is denied that a "special excavation
situation" arose.
7. Denied. Defendant was only advised that rock would need to be drilled and
blasted. By way of further answer, defendant agreed and did pay additional monies to have the
rock drilled and blasted. It is denied that defendant was ever advised that this was a "special
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excavation situation" and that he would have to pay additional money for excavation that was
already required to be performed by plaintiff under the Construction Agreement.
8. Denied. Under the terms of the Construction Agreement plaintiff was required to
excavate the foundation site. Defendant is without sufficient information to determine that this
was in fact a "special excavation situation" and therefore demands strict proof thereof and strict
compliance with the Construction Agreement which required that defendant be put on notice of a
"special excavation situation". By way of further answer it is denied that the cost of the alleged
"special excavation situation" exceeded the plaintiff's expected cost of excavation under the
Construction Agreement by $3,763.75 and strict proof thereof is demanded at time of trial.
9. Admitted in part, denied in part. It is admitted that defendant has refused to pay
these additional monies, but it is denied that defendant owes plaintiff any money for "special
excavation".
WHEREFORE, defendant prays this Honorable Court will enter judgment on behalf of
defendant and against plaintiff.
NEW MATTER
The answers to Paragraphs 1 through 9 are incorporated herein as if set forth at
10.
length.
11.
The alleged "special excavation situation" occurred in November and December
1999, but defendant was not advised that plaintiff was requesting additional payments for
excavation until February 23, 2000.
12. Prior to defendant being advised of additional costs for excavation plaintiff had
ceased working and walked off the job without notifying defendant.
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13. The parties met on February 23, 2000 to try to resolve their differences.
14. The parties were able to resolve all issues as evidenced by the signed document
dated February 23, 2000, which is attached hereto, incorporated herein and marked defendant's
Exhibit "A".
15. The Agreement dated February 23,2000 states clearly that both parties agree that
all outstanding issues are satisfied.
16. Following the execution by both parties of defendant's Exhibit "A", and the
tender of the third draw from defendant to plaintiff, plaintiff for the first time advised defendant
of an additional charge of $3,047.00 for an alleged "special excavation situation" which occurred
two (2) to three (3) months prior.
17. During prelirninary negotiations and prior to entering into the Construction
Agreement with plaintiff, defendant was advised by plaintiff to obtain blue prints for this project
from Standard Homes Plan Service, Inc., 7200 Sunset Lake Road, Fugusy-Varina, NC 27526.
18. Defendant advised plaintiff that defendant wanted certain upgrades and changes
in the blueprints to which plaintiff agreed and incorporated in the original contract price.
19. Not all of defendant's requested upgrades in the blueprints were specifically
incorporated in the blueprints since plaintiff advised defendant that plaintiff had eighteen (18)
years experience and would be able to adjust for upgrades without additional blueprints.
20. Defendant relied upon plaintiff's representations as to plaintiff's ability to make
necessary adjustments to construction of the house without requiring additional blueprints.
COUNTERCLAIM - COUNT I
BREACH OF CONTRACT
21.
Paragraphs 1 through 20 are incorporated herein as if set forth in length.
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22. One specific upgrade included the installation of stairs to the attic above the
garage ceiling.
23. Plaintiff was advised by defendant that defendant intended to use the attic area
above the garage for storage.
24. In reliance upon plaintiff's representations as to making adjustments in the Plans
for defendant's requested upgrades defendant reasonably believed plaintiff was going to install a
floor in the attic above the garage.
25. Plaintiff has not installed a floor above the garage and refuses to do so.
26. The joists used to construct the garage are not of sufficient strength and design to
support a floor, storage and persons.
27. Defendant has an enclosed stairway which leads to a storage area that not only
cannot be used, but may well be a latent defect creating a dangerous condition.
28. In February 2000, prior to completion of framing and installation of drywall
defendant advised plaintiff in writing that plaintiff was to install a Plumbed Central Vac system
29. Plaintiff repeatedly acknowledged that he would install a central vac system, but
plaintiff failed to install such a system.
30. The plans called for all interior walls of the garage to be drywalled.
31. Plaintiff claims that construction is now complete, but plaintiff did not hang
drywall in the garage as called for under the plans.
32. The Plans clearly show a stone driveway turnaround is to be constructed.
33. Plaintiff has refused to install the stone driveway turnaround.
34. Plaintiff unilaterally reversed the closets in the first floor hallway which precludes
defendant from having a coat closet in this hallway.
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35. All interior drywall was to be glued and screwed under the terms of the contract.
36. Plaintiff did not advise the drywall contractor as to the installation method to be
employed and consequently the majority of the drywall was nailed, as opposed to glued and
screwed, before defendant realized the error.
37. It is believed and therefore averred that the nails in the drywall were not replaced
with gluing and screws.
38. The costs of flooring in the attic of the garage, plus installation of central vac
system, installation of drywall in the garage, a stone driveway turnaround, correction of hallway
closets and inspection of interior drywall installation is believed to exceed six-thousand
($6000.00) dollars, but defendant cannot obtain exact costs for these items in sufficient time to
plead same.
WHEREFORE, defendant prays the this Honorable will enter judgment in favor of
defendant and against plaintiff on this Counterclaim in an amount in excess of six-thousand
($6000.00) dollars.
COUNTERCLAIM - COUNT II
MISPRESENTATION
39. Paragraphs 1 through 38 are incorporated herein as if set forth in length.
40. Plaintiff has previous to his contract with defendant constructed new homes in
Upper Allen Township.
41. Upper Allen Township code requirements require that block foundations be
completely filled with poured cement.
42. Plaintiff included the cost of a block foundation filled with poured concrete in the
original contract price.
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43. Defendant expressed concern to plaintiff about water leakage through the block
foundation.
44. Plaintiff, with full knowledge that he was required by Township code to fill the
block with poured concrete, misrepresented to defendant that the concrete block would not be
filled and would not be as waterproof as a poured foundation.
45. In reliance upon plaintiff's misrepresentation defendant agreed to pay plaintiff an
additional one thousand one hundred ($1100.00) dollars for a poured foundation.
46. Due to plaintiff's misrepresentation defendant spent an additional one thousand
one hundred ($1100.00) dollars above the contract price for foundation walls.
WHEREFORE, defendant prays this Honorable Court will enter judgment in favor of
defendant and against plaintiff in the amount of one thousand one hundred ($1100.00) dollars.
Respectfully submitted,
~
R. Mark Thomas, Esquire
Attorney for Defendant
101 South Market Street
Mechanicsburg, P A 17055
(717)796-2100
ID# 41301
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VERIFICATION
1 verifY that the statements made in the foregoing document are true and correct. 1
understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~4904,
relating to unsworn falsification to authorities.
Date:
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CERTIFICATE OF SERVICE
And now, this ;cl t:h day of May, 2000, I hereby certifY that I have served a copy
of the within document on the following by depositing a true and correct copy of the same in
the D,S, Mail at Mechanicsburg, Pennsylvania, Postage pre-paid, addressed to:
Counsel for Plaintiff
Herschel Lock, Esquire
3107 N, Front Street
Harrisburg, PA 17110-1310
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R, Mark Thomas, Esquire
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McGRAW-LOCK BUILDERS
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
a';lll
NO. 2000-~ CIVIL
.
.
vs.
:
M. JOSEPH GILL
Defendant
CIVIL ACTION - LAW
:
ANSWER TO NEW MATTER AND COUNTERCLAIM
10. The averments of Paragraphs 1 through 9 hereof are
incorporated herein by reference thereto.
11. Admitted in part and denied in part. While it is admitted
that the bills for the "special excavation situation" were not
given to Defendant until February 23, 2000, it is denied Plaintiff
had these bills to give Defendant a significant period of time
before then or that Defendant did not know prior to then that he
would owe an amount of money therefore. By way of further answer,
it is averred that on or about December, 1999, Defendant was
advised by Plaintiff that there was excessive rock in the soil of
his lot which would necessitate blasting and special excavation
work but that the ultimate cost thereof would not be known until
after all of the work was done and the bills occasioned by the
extra work were received from the subcontractor doing the work.
12. Denied and, by way of further answer, it is averred that when
Defendant told Plaintiff of the additional cost to him for the
excavation work required on his lot, Defendant complained not only
about that but about the manner in which Plaintiff was
constructing his home. Because of that, even though Plaintiff
continued to work on the project for Defendant, Plaintiff did not
move onto the next phase of the construction both because it
attempted to resolve Defendant's concerns about its work, this
ultimately being done on February 23, 2000, and because Defendant
had not paid the draw not related to the extra excavation then
due.
13 . Admitted
14. While it is admitted that on February 23, 2000, Plaintiff and
Defendant were able to resolve Defendant's concerns about how it
was constructing Defendant's home, it is denied that such a
resolution in any fashion dealt with Defendant's financial
obligation to Plaintiff who had not yet been paid the third draw
then due nor the cost of the extra excavating, this being
clarified by the Agreement between the parties of March 20, 2000
(see Exhibit "A" attached hereto).
15. Denied for reasons more fully set forth in Paragraph 14
hereof and, by way of further answer, it is averred that
Defendant's Exhibit "A" dealt solely with construction issues
brought forth by Defendant and not in any manner with financial
issues since Defendant did not yet pay Plaintiff the third draw
then due or the cost of the extra excavation.
16. Denied and, by way of further answer, it is averred that
Defendant was apprised of his responsibility to pay Plaintiff the
cost of the special excavation long before the execution of
Defendant's Exhibit "A" by Plaintiff and Defendant, that Defendant
did not pay Plaintiff the third draw due until March 20, 2000 and
that the amount Defendant owes Plaintiff for the special
excavation is in fact Three Thousand Seven Hundred Sixty-three
",." .,
Dollars and Seventy-five Cents ($3,763.75).
17. Admitted
18. Admitted in part and denied in part. By way of further
answer, while it is admitted that Defendant wanted certain
upgrades and changes made to what was set forth by his blueprints
and by the specification sheet signed by Plaintiff and Defendant,
it is denied that any time Plaintiff agreed to include these
upgrades and changes without a change in the original cost of the
project to Defendant, without charging an upgrade price therefore
and without change orders being drafted and signed.
19. Admitted and, by way of further answer, it is averred that
those changes to the blueprints were generally memorialized on the
specification sheet or by change orders.
20. Denied for reasons more fully set forth in Paragraphs 18 and
19 hereof. By way of further answer, it is averred that Defendant
made plans and specification for the project the subject hereof,
as well as for changes made thereto, based upon his knowledge and
experience gained from being involved in previous construction
projects.
COUNT I.
21. The averments of Paragraphs 1 through 20 hereof are
incorporated herein by reference thereto.
22. Admitted
23. Admitted but, by way of further answer, it is averred that
Defendant said he merely wanted to store a few boxes of Christmas
decorations in the storage area.
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24. Denied and, by way of further answer, it is averred that
Plaintiff at no time told Defendant it was going to install a
floor in an attic above the garage but, instead, based on
Defendant's representations that he merely wanted a small area in
which to place several boxes, it is averred that Defendant in fact
knew he neither planned nor paid to have a full attic above his
garage or for anything other than what in fact was built for him.
25. Denied and, by way of further answer, it is averred that
Defendant placed a flooring area of approximately 4'x16' in the
ceiling storage area of the garage.
26. Admitted and, by way of further answer, it is averred that
those joists used in construction were what was called for by the
plans and specification for this project which clearly indicated
Defendant did not intend to have a full attic above his garage
both because of the joists' weight bearing capacity and the amount
of space' they would allow a person to stand up in.
27. Denied and, by way of further answer, it is averred that
Defendant received the storage area above his garage, that the
stairs build up to it are usable for a person to take boxes to
that area and that Defendant is now asking for something he was
not willing to pay for as an upgrade.
28. After reasonable investigation, Plaintiff is without
knowledge as to the truth of the averments of Paragraph 28 and
proof thereof is hereby demanded at trial. By way of further
answer, it is averred that Plaintiff told Defendant he would only
install a central vac system or rough out an area in which one
would be placed if such work was memorialized by a change order,
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-
since it was not called for in either the blueprints or
specifications, nor charged for.
29. Denied for reasons more fully set forth in Paragraph 28
hereof.
30. Admitted and, but by way of further answer, it is averred
that Plaintiff agreed to do so but that Defendant has withheld
the final draw due Plaintiff and has by his actions made it clear
that the mere installation of the drywall in the garage would not
cause him to pay that draw. Additionally, Plaintiff avers that
this matter would have been dealt with in a final walkthrough by
Plaintiff and Defendant but that Defendant canceled the
walkthrough scheduled.
31. Admitted for reasons more fully set forth in Paragraph 30
hereof.
32. Admitted and, by way of further answer, it is averred that
the stone driveway turnaround was for a front facing garage door.
However, Defendant's property was built with as side facing garage
door and, even though, there has been built a 24'x24' paved stone,
not loose stone, turnaround at the garage entrance.
33. Denied for reasons more fully set forth in Paragraph 32
above.
34. Denied, and by way of further answer, it is averred that
Plaintiff generally dealt with the closets in the manner called
for by the plans and specifications for Defendant's project.
35. Admitted and, by way of further answer, it is averred that
all drywall in the interior of the house was glued and screwed.
36. Denied for reasons more fully set forth in Paragraph 35
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above.
37. Denied and, by way of further answer, it is averred that the
drywall in the interior of the house was glued and screwed and
that nails in the drywall were placed there to hold the drywall in
place while it was being glued and screwed into place.
38. After reasonable investigation, Plaintiff is without
knowledge as to the truth of the averments of Paragraph 38 and
proof thereof is hereby demanded at trial.
WHEREFORE Plaintiff prays your Honorable Court to deny
Defendant his prayed for relief.
COUNT II.
39. The averments of Paragraphs 1 through 38 are incorporated
herein by reference thereto.
40. Denied and, by way of further answer, it is averred that
Plaintiff, previous to his contract with Defendant, built one (1)
new home in Upper Allen Township.
41. Admitted.
42. Admitted.
43. Denied and, by way of further answer, it is averred that
Defendant spoke about his concerns of water leakage to the masonry
contractor on the job, Rich Beers, and not to Plaintiff.
44. Admitted in part and denied in part. By way of further
answer, while it is admitted that Plaintiff was required by
Township code to fill the block with concrete, and that Plaintiff
told Defendant that a foundation wall solely of concrete would be
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better than one of cinder block and concrete, it is denied that
Plaintiff made any misrepresentations to Defendant that the block
would not be so filled with poured concrete.
45. Denied for reasons more fully set forth in paragraph 44
hereof.
46. Denied for reasons more fully set forth in paragraph 44
hereof.
WHEREFORE Plaintiff prays your Honorable Court to deny
Defendant his prayed for relief.
DATED:.l/J..llb~
J
JjtJ';~ .ubmitted,
HERSCHEL LOCK, ESQUIRE
Attorney for Plaintiff
3107 North Front Street
Harrisburg, PA 17110
(717) 238-6661
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VERIFICATION
I verify that the statements made in the foregoing
Answer
are true and correct. I understand that false statements made herein
are subject to the penalties of 18 Pa. C.S. Section 4904 relating to
unsworn falsification to authorities.
DATED:
6/21/00
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MES~ GRAW
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AGREEMENT
AND NOW this LO~'-day of March, 2000, comes Contractor,
McGraw-Lock Builders, and Owner, M. Joseph Gill, who agree as
follows:
1. They are the parties to the Construction Contract dated
October 18, 1999 relating to Lot 7 of Irish Glen, Diehl Road,
Upper Allen Township, Cumberland County, Pennsylvania as well as
to other contracts, writings or agreements of dates previous
hereto relating to the subject project; and
2. They have had disagreements as to their respective rights
and obligations since mid-February, 2000, and wish now to resolve
those differences 60 that Contractor can continue
its work on
Owner's project and receive from Owner the monies due it; and
3. They agree that unless specifically treated differently in
this Agreement, all other contracts, writings or agreements of
date previous hereto relating to the subject project shall remain
in full force and effect; and
4. Owner agrees to pay Contractor contemporaneously with the
execution hereof its 3rd draw now due, this in the amount of
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execution hereof $320.00 now due as a result of work completed on
the Change Order No.2 of February 23, 2000, and agrees further
to pay Contraoto~ the remaining $420.00 noted on said Change
Order immediately upon the completion of all items thereon; and
6. They agree that the subject project's completion date shall
be no later than May 14, 2000, but each agrees to reasonably
cooperate with the other of them so that the subject project can
be timely completed.
7. They aCknowledge that they have not resolved their
disagreement as to which of them is obligated to pay for the
excess excavation work done on the subject lot as well as which
of them is obligated to pay for any backfill needed to complete
the project. Both parties reserve their right to litigate these
/ matters!-; .J..' . tAr/. -rt;&. 'fil,~ Jr&v""LC~ .J~&J g, Jy)J:c,J '''''''1;'';''/e.,
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,vv 0 The parties hereto have placed their hands and seals the day
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abovementioned.
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M. JOSEPH GILL ' '\
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MCGRAW-LOCK BUILDERS
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McGRAW-LOCK BUILDERS
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
:
vs.
.
.
NO. 2000-2211
CIVIL
.
.
M. JOSEPH GILL
Defendant
CIVIL ACTION - LAW
ORDER
AND NOW, this
IL
day of ~r.a-
, 2000, upon
review of the within Motion IT IS HEREBY ORDERED AND DECREED that
Defendant M. Joseph Gill show cause, if any he has, why the
discovery served upon him herein should not be answered.
-
Rule returnable within /.5 days of service.
BY THE COURT:
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McGRAW-LOCK BUILDERS
Plaintiff
:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
:
vs.
NO. 2000-2211
CIVIL
.
.
M. JOSEPH GILL
Defendant
.
.
CIVIL ACTION - LAW
MOTION TO COMPEL DISCOVERY
1. On or about June 8, 2000, Plaintiff McGRAW-LOCK BUILDERS
served upon Defendant M. Joseph Gill discovery in the form of both
Interrogatories and Request for Production of Documents. (see
Exhibit "A" attached hereto).
2. Since then Defendant has failed to answer either the
Interrogatories or Request for Production of Documents aforesaid.
3. Plaintiff believes and avers that the requested discovery is
both needed for his pursuance of his case against Defendant and is
allowed by the Pennsylvania Rules of civil Procedure.
4. After Defendant's failure to answer Plaintiff's discovery in
a timely fashion, Plaintiff twice informally requested that he do
so.
5. To date, though, Defendant has not answered Plaintiff's
discovering requests.
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WHEREFORE Plaintiff prays your Honorable Court to issue
Rule upon Defendant to Show Cause, if any he has, why the
discovery requested herein should not be answered.
DATED: ~1J.~jtR>
~:~JltJ,tmitted'
HERSCHEL LOCK, ESQUIRE
Attorney for Plaintiff
3107 North Front Street
Harrisburg, PA 17110
(717) 238-6661
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vs.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2000-2211 CIVIL
McGRAW-LOCK BUILDERS
Plaintiff
:
M. JOSEPH GILL
Defendant
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I, HERSCHEL LOCK, Esquire, hereby certify that I have this~?~
day of August, 2000, served the foregoing Defendant M. Joseph Gill
the Motion to Compel Discovery by depositing same in the united
States Post Office, Harrisburg, PA first class mail, postage
prepaid, addressed as follows:
R. Mark Thomas, Esq.
101 S. Market Street
Mechanicsburg, PA 17055
~J/j(
HERSCHEL LOCK, Esquire
3107 N. Front Street
Harrisburg, PA 17110
(717) 238-6661
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R. Mark Thomas, Esq.
101 s. Market street
Mechanicsburg, PA 17055
RE: Joe Gill
Dear Mark:
June 7, 2000
Enclosed herein please find the Interrogatories and Request
for Production of Documents I wish to serve on Mr. Gill.
HL/cf
Enclosures
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Sincerely,
Herschel Lock
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EXHIBIT "A"
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McGRAW-LOCK BUILDERS,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
NO.
2000-2211 CIVIL
:
M. JOSEPH GILL,
Defendant
CIVIL ACTION - LAW
REQUEST FOR PRODUCTION OF DOCUMENTS
Plaintiff hereby request that you furnish pursuant to Rule
4009 of the Pa. R.C.P., at our expense or permit the Plaintiff or
someone acting on its behalf to inspect, examine, and copy the
following items concerning this action which are in the
possession, custody or control of Defendant, counsel for
Defendant, or any other person or entity acting on behalf of
Defendant. Said items shall be produced or made available for
inspection at the office of Plaintiff's attorney located at 3107
North Front Street, Harrisburg, PA 17110 within thirty (30) days
after service of this request on a dates and time to be arranged
between counsel.
1. All photographs showing, representing or purporting to
show the property known and numbered as Lot 7, Diehl Road, Upper
Allen Township, Cumberland County, Pennsylvania, presently during
its construction or at any time before its construction.
2. All unsigned diagrams, sketches, blueprints, plans or
measurements showing, representing or purporting to show your
property known and numbered as Lot 7, Diehl Road, Upper Allen
Township, Cumberland County, Pennsylvania, now or during or prior
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to its construction.
3. All statements, including but not restricted to those
defined by Pa. R.C.P. 4003.5, signed statements, transcripts of
recorded statements or interviews, or any memoranda or summary of
transcripts of statements or interviews of any party, person or
witnes$, or their agents or employees, who have any knowledge or
information of the facts concerning or pertaining to the subject
matter, the claims or any other matters involved in or pertaining
to thi$ case.
4. A curriculum vitae as to each expert you have retained
to testify on your behalf at the trial of this case.
5. All documents prepared by you or by anyone acting on
your behalf, except your attorney, during an investigation of any
aspect of the claims in question. Such documents shall include
any documents made or prepared through the present time with the
exclusion of mental impressions, conclusions or opinions
respecting the value or merit of claims or defenses or respecting
strategy or tactics.
6. If not otherwise covered by the above requests, any and
all documents regarding your investigation of the matter in
question, with the exclusion of mental impressions, conclusions or
opinions respecting the merits of claims or defenses or respecting
strategy or tactics.
7. All documents relating in any way to all damages and
losses sustained by Defendant. This should include, but not be
limited to, invoices, bills, reports, records, receipts and all
other documents in any way relating to Plaintiff's Complaint or
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Defendant's New Matter and Count~rclaim.
8. All documents or exhibits which you intend to offer or
identify as exhibits and/or evidence at any depositions or at the
trial of this matter.
9. All financial records of Defendant concerning his
purchase of the Lot 7, Diehl Road, Upper Allen Township,
Cumberland County, Pennsylvania, and construction of the single
family home thereon that is the subject of this suit, including
but not limited to any checks, receipts, mortgages or loans of any
sort.
10. If not covered by the above request, any and all
documents which evidence any facts on the basis of which it will
be asserted that the Plaintiff failed to live up to its
obligations to Defendant.
11. All documents which would support any claim for damages
averred to Defendant's New Matter or Counterclaim.
DATED:
6/8/00
Respectfully submitted:
~~
HERSCHEL LOCK, ESQUIRE
Attorney for Plaintiff
3107 North Front Street
Harrisburg, PA 17110
(717) 238-6661
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McGRAW-LOCK BUILDERS,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
NO.
S
M. JOSEPH GILL,
Defendant
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I, HERSCHEL LOCK, Esquire, hereby certify that I have this
8+~ day of June, 2000, served the foregoing Defendant M. Joseph
Gill Request for Production of Documents propounded upon Plaintiff
upon counsel of record listed below, by depositing same in the
United States Post Office, Harrisburg, PA first class mail,
postage prepaid, addressed as follows:
R. Mark Thomas, Esq.
101 S. Market Street
Mechanicsburg, PA 17055
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HERSCHEL LOCK, Esquire
3107 N. Front Street
Harrisburg, PA 17110
(717) 238-6661
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McGRAW-LOCK BUILDERS
Plaintiff
:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
.
.
NO.
2000-2211
CIVIL
M. JOSEPH G!LL
Defendant
CIVIL ACTION - LAW
.
.
AND NOW, comes Plaintiff McGRAW-LOCK BUILDERS, in the above
captioned action, by their counsel, Herschel Lock, Esquire
pursuant to Rule 4005 of the Pennsylvania Rules of Civil
Procedure, and propound the following interrogatories:
I. INSTRUCTIONS
These interrogatories are to be answered in writing,
verified, and served upon the undersigned counsel within thirty
(30) days of their service upon you. Objections must be signed by
the attorney making them. With respect to any claim of privilege
or immunity from discovery, you must identify the privilege or
immunity asserted and provide sufficient information to
substantiate the claim. In lieu of identifying documents in
response to these interrogatories, you may provide copies of such
documents with appropriate references to the corresponding
interrogatories.
~
II. DEFINITIONS
"Document" means any written, printed, typed, or other
graphic matter of any kind or nature, however produced or
reproduced, including photographs, microfilms, phonographs, video
and audio tapes, punch cards, magnetic tapes, discs, data cells,
drums, and other date compilations from which information can be
obtained.
"Identify" or "Identity" means when used in reference to --
(1) A natural person, his or her:
(a) full name; and
(b) present or last known residence and employment
address (including street name and number, city or
town, and state or county);
(2 ) A document:
(a) its description (e.g., letter, memorandum, report,
etc.), title, and date;
(b) its subject matter;
(c) its author's identity;
(d) its addressee's identity;
(e) its present location; and
(f) its custodian's identity;
(3) An oral communication:
(a) its date;
(b) the place where it occurred;
(c) its substance;
(d) the identity of the person who made the
communication;
:.,;1
. .
(e) the identity of each person to whom such
communication was made;
(f) the identity of each person who was present when
such communication was made;
(4) A corporate entity:
(a) its full corporate name;
(b) its date and place of incorporation, if known;
(c) its present address and telephone number;
(5) Any other context: a description with sufficient
particularity that the thing may thereafter be specified
and recognized, including relevant dates and places, and
the identification of relevant people, entities and
documents.
"Incident" means the occurrence that forms the basis of a
cause of action or claim for relief set forth in the complaint or
similar pleading.
"Person" means a natural person, partnership, association,
corporation, or government agency.
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III. INTERROGATORIES
1. What is your full name, address and date of birth? Have you
ever been known by any other name?
2. Previous to having McGraw-Lock Builders build the single
family dwelling known and numbered as Lot 7, Diehl Road, Upper
Allen Township, Cumberland County, Pennsylvania, for you have you
had any other homes or buildings of any sort built or renovated
for you? If so, when, what are the addressees of the homes or
buildings and what are the names, addressees and telephone numbers
of all of the subcontractors and contractors who did work for you
thereon?
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3. At any time have you sued or been sued by any of the
subcontractors or contractors named in your answer to Question 2?
If so, when were you sued and in what state and county did the
suit take place and to what number was the suite docketed?
4. From whom did you receive or purchase the plans or blueprints
that you used for the building of the home the subject hereof?
5. At any time did you confer with an architect, engineer or
contractor, other than Plaintiff, about the construction of
subject premises? If so, with whom and when.
. - ,
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,
6. Do you have any witnesses ~ith personal knowledge as to the
design and specifications to which you and Plaintiff agreed to
build the subject premises If so, what are the names, address and
telephone numbers of those persons?
7. Do you have any expert witnesses you intend to call at trial
If so, what are their names, addresses, telephone numbers and what
will their testimony be?
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8. Through what bank accounts did you pass through those funds
related to the construction of the subject premises or the
purchase of materials for its construction? Please give the name
and address of any bank or finanical institution and the number of
your account or accounts.
9. Is anyone other than you and your attorney in possession of
any paperwork related to your agreement with Plaintiff as to the
plans and specifications of its construction of the home the
subject hereof If so, who and what are their addresses and
telephone number?
Respectfully submitted:
DATED:
6/8/00
Jb jQ\
HERSCHEL LOCK, ESQUIRE
Attorney for Plaintiff
3107 North Front Street
Harrisburg, PA 17110
(717) 238-6661
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McGRAW-LOCK BUILDERS,
plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
NO.
S
M. JOSEPH GILL,
Defendant
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I, HERSCHEL LOCK, Esquire, hereby certify that I have this
.~ day of June, 2000, served the foregoing Defendant M. Joseph
Gill Interrogatories propounded upon Plaintiff upon counsel of
record listed below, by depositing same in the United States Post
Office, Harrisburg, PA first class mail, postage prepaid,
addressed as follows:
R. Mark Thomas, Esq.
101 S. Market Street
Mechanicsburg, PA 17055
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HERSCHEL LOCK, Esquire
3107 N. Front Street
Harrisburg, PA 17110
(717) 238-6661
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McGRAW-LOCK BUILDERS
Plaintiff
.
.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
:
vs.
.
.
NO. 2000-2211
CIVIL
M. JOSEPH GILL
Defendant
CIVIL ACTION - LAW
:
ORDER
AND NOW, this
:1-:1 day of
OJ7J b e<--
, 2000, upon
review of the within Motion IT IS HEREBY ORDERED AND DECREED that
Defendant M. Joseph Gill fully and completely answer the
discovery previously served upon him by Plaintiff in the above
referenced matter within Z-O days of service hereof.
BY THE COURT:
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McGRAW-LOCK BUILDERS
Plaintiff
.
.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
vs.
NO. 2000-2211
CIVIL
.
.
M. JOSEPH GILL
Defendant
.
.
CIVIL ACTION - LAW
MOTION TO MAKE RULE ABSOLUTE
AND NOW comes Petitioner, McGRAW-LOCK BUILDERS, Plaintiff in
the above referenced matter and files its Motion to Make Rule
Absolute as follows:
1. On or about June 8, 2000, Plaintiff McGRAW-LOCK BUILDERS
served upon Defendant M. Joseph Gill discovery in the form of both
Interrogatories and Request for Production of Documents.
2. Since then, Defendant has failed to answer either the
aforesaid Interrogatories or Request for Production of Documents.
3. As a result of Defendant's failure to answer such discovery,
on June 29, 2000, plaintiff filed its Motion to Compel Discovery.
4. As a result thereof, on September 1, 2000, your Honorable
Court signed an Order directing Defendant to show cause should not
be required to answer discovery requested with said Rule
returnable within fifteen (15) days of service (see Exhibit "A"
attached hereto).
5. In accordance with local practice the Cumberland County
Prothonotary's Office sent a copy of the Court's Order to
Defendant on September 5, 2000, and in accordance with the
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Cumberland County Rules of Court Plaintiff served a copy thereof
on Defendant on or about September 6, 2000 (see Exhibit "B"
attached hereto).
6. To date, a period of time far in excess to the fifteen (15)
day time frame dictated by the Court's Order to answer Defendant's
discovery has elapsed but Defendant has failed to answer the
discovery nonetheless.
WHEREFORE Plaintiff prays your Honorable Court to enter
making its Rule Absolute and directing Defendant to fully and
completely answer the discovery promulgated upon him by Plaintiff.
DATED: ~V 'L'i7JO/J
Re~~aLubmitted:
HERSCHEL LOCK, ESQUIRE
Attorney for Plaintiff
3107 North Front Street
Harrisburg, PA 17110
(717) 238-6661
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McGRAW-LOCK BUILDERS
Plaintiff
:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
.
.
NO. 2000-2211
CIVIL
:
M. JOSEPH GILL
Defendant
CIVIL ACTION - LAW
ORDER
AND NOW, this
1st
, 2000, upon
day of
review of the within Motion IT IS HEREBY ORDERED AND DECREED that
Defendant M. Joseph Gill show cause, if any he has, why the
discovery served upon him herein should not be answered.
Rule returnable within J~ days of service.
BY THE COURT:
I5/t~51-1/,AnJ
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EXHIBIT
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September 6, 2000
R. Mark Thomas, Esq.
101 S. Market Street
Mechanicsburg, PA 17055
RE: McGraw-Lock Builders v. Joe Gill
2000-2211 Civil
Dear Mark:
Enclosed please find a certified copy of the Court's Order
entered as a result of my Motion to Compel Discovery filed and
served upon you heretofore.
Sincerely,
Herschel Lock
HL/cf
Enclosure
EXHIBIT "B"
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McGRAW-LOCK BUILDERS
Plaintiff
.
.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
vs.
NO. 2000-2211
CIVIL
M. JOSEPH GILL
Defendant
.
.
CIVIL ACTION - LAW
.
.
CERTIFICATE OF SERVICE
I, HERSCHEL LOCK, Esquire, hereby certify that I have this Jq~
day of September 2000, served the foregoing Defendant M. Joseph
Gill the Motion to Make Rule Absolute by depositing same in the
United States Post Office, Harrisburg, PA first class mail,
postage prepaid, addressed as follows:
R. Mark Thomas, Esq.
101 S. Market Street
Mechanicsburg, PA 17055
~I d{quir.
3107 N. Front Street
Harrisburg, PA 17110
(717) 238-6661
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McGRAW -LOCK BUILDERS,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERlAND COUNTY, PENNSYLVANIA
VS.
: NO. 2000-2211 Civil
M. JOSEPH GILL,
: CIVIL ACTION -LAW
Defendant
NOTICE TO PLEAD
TO: McGraw-Lock Builders
301 Market Street
Lemoyne, PA 17043
You are hereby notified to file a written response to the enclosed New Matter and
Counterclaims within twenty (20) days from service hereof or a judgment may be entered against
you,
7&t~
R, Mark Thomas, Esquire
Attorney for Defendant M, Joseph Gill
101 South Market Street
Mechanicsburg, P A 17055
(717) 796-2100
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McGRA W.LOCK BUILDERS,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERlAND COUNTY , PENNSYLVANIA
VS.
: NO. 00-4094 Civil
M. JOSEPH GILL,
: CIVIL ACTION -LAW
Defendant
: JURY TRIAL DEMANDED
ANSWER. NEW MATTER AND COUNTERCLAIM
AND NOW, comes defendant, M, Joseph Gill, by and through his attorney, R, Mark
Thomas, Esquire, and files this Answer, New Matter and Counterclaim as follows:
1. Denied, Defendant is without sufficient information, knowledge or belief
following reasonable investigation to either affirm or deny that plaintiff is a general partnership
and therefore same is denied and strict proof thereof demanded at time of trial.
2, Admitted,
3, Admitted,
4, Admitted in part, denied in part, It is admitted that the Agreement dated October
18, 1999 sets forth the original Construction Agreement, but it is denied that that Construction
Agreement represents the entire Agreement entered into between the parties,
5, Admitted,
6, Denied, It is denied that plaintiff completed the construction of the dwelling in
good and workmanlike fashion, There are numerous defects in the quality of the work
performed by the plaintiff as will be set forth herein after in the New Matter and Counterclaim,
It is further denied that the construction was substantially in accordance with the plan,
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specifications, and oral instructions, Furthermore, it is denied that plaintiff is entitled to the final
draw in the amount of $8,835,00 due to the failure of plaintiff to do quality work and to complete
the work in accordance with the plan, specifications and oral instructions,
7, Admitted,
WHEREFORE, defendant prays this Honorable Court will not enter judgment in favor of
plaintiff but will rather enter judgment in favor of the defendant and against plaintiff on his claim
in the amount of $8,835,00,
NEW MATTER
8. The answers contained in paragraphs 1 through 7 are incorporated herein as if set
forth at length,
9, The original blueprints which were used by both the plaintiff and the defendant
for the purpose of entering into the Construction Agreement were prepared by Standard Homes
Plan Service, Inc" located in the State of North Carolina,
10, The original plans called for the location of the garage, which is attached to the
dwelling, to be on the eastern side of the dwelling with the garage door facing Diehl Road,
11. In reliance upon plaintiff's recommendation that the garage be placed on the
westem side of the dwelling and that the entire blueprint plan be reversed for purposes of
construction, Defendant agreed to this modification after having received assurances from
plaintiff that plaintiff would not need new blueprints and would be able to reverse the plans for
purposes of constructing the dwelling,
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12, Plaintiff made numerous errors in construction which defendant believes and
therefore avers were caused by plaintiff's inability to construct the dwelling according to the
plans after having reversed the layout of the dwelling,
13, Plaintiff further recommended to defendant to have the garage open off the
western side of the garage as opposed to opening and facing Diehl Road,
14, Defendant relied upon plaintiff's experience and recommendation after having
been assured by plaintiff that there would be sufficient width to the lot for the driveway to be
located on the westem end and allow for a tum into the driveway,
15. Plaintiff staked out the dimensions of the dwelling on the lot and proceeded to
construct same,
16, Upon completion of the construction of the dwelling and the installation of the
driveway it was determined that there was insufficient width to the lot for having the garage door
open on the western side of the dwelling,
17, The driveway installed to allow for ingress and egress from the garage has a very
steep four (4) foot slope on the western side of the driveway which presents a hazardous
condition and which significantly impairs the market value of the dwelling,
18, When plaintiff dug the hole for the foundation for the dwelling plaintiff failed to
dig sufficient depth to the foundation so as to construct the house according to plan.
19, As a result of the failure of plaintiff to dig to a sufficient depth with regard to the
foundation defendant now has additional steps from the garage into his living area and this has
also contributed to the situation where the western edge of the driveway is too steeply sloped to
enable entrance into the garage without hazard,
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20, The windows in the garage are lower than the windows on the remaining part of
the house resulting in an odd appearance which also impacts upon the marketability of the house,
21. The plans call for forty (40) inch wide hallways since defendant has a
degenerative back condition which ultimately may require him to use a wheelchair.
22, The plaintiff constructed the house with only thirty-six (36) inch wide hallways
which was inconsistent with the blueprints and not agreed to by defendant.
23, Three (3) doors, the back garage door, the door from the kitchen to the basement
and the door from the master bedroom to the master bath were to be thirty-six (36) inches in
width, however plaintiff installed thirty-two (32) inch doors in derogation of the plans and
specifications..
24, Plaintiff installed the siding glass doors from the dining room to the back patio
according to the original plans instead of reversing the installation of those sliding doors when
the plans were reversed,
25, Plaintiff has refused to reverse these sliding doors despite repeated requests from
the defendant.
26. The original plans called for the basement to be constructed of block concrete,
27, The dwelling was being constructed in Upper Allen Township which required that
concrete block foundations be filled with poured concrete,
28. It is believed and therefore averred that plaintiff had previously constructed
several dwellings in Upper Allen Township and that plaintiff was aware of the code requirement
of filled concrete block when he prepared the construction cost for the defendant.
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29, Subsequent to the signing of the Construction Agreement plaintiff convinced
defendant to use poured concrete as opposed to block walls and charged the defendant an
additional $1,100.00 for this change.
30, It is believed and therefore averred that the plaintiff misrepresented to the
defendant the additional cost for a poured concrete wall since the original plan would have called
for concrete block walls consistent with the Upper Allen Township code,
31. Portions of the vinyl siding installed on the house, particularly on the eastern side,
were improperly installed,
32, The improper installation of the vinyl siding has left at least one gap in the vinyl
siding and resulted in insufficient overlay on numerous portions of the siding,
33, The poor quality of workmanship with regan! to the installation of the vinyl
siding has a negative impact on the marketability of the house,
34, The plans called for the inside of the garage to be drywalled,
35, Plaintiff failed to drywall the interior walls of the garage and has refused to do so
in spite of the plan,
36, The plans and specifications called for a walk.in storage area in the space above
the garage but it cannot be so used since plaintiff installed trusses of insufficient strength,
37, Stairways to the area above the garage were installed, but now a hazardous and
dangerous condition exists since the floor at the top of the stairway is of insufficient strength to
support a person,
38, The plans clearly show that plaintiff was to construct a stone driveway tum
around which plaintiff now refuses to construct.
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39, All interior drywall was to be glued and screwed under the terms of the
construction agreement,
40, Plaintiff failed to instruct the drywall contractor to glue and screw the drywall and
therefore much of the drywall was simply nailed without glue and screws,
COUNTERCLAIM
41. Paragraphs 1 through 40 are incorporated herein as if set forth at length,
42, Plaintiff failed to construct the dwelling according to the blueprints, plans, written
and oral modifications as agreed,
43, The costs to complete the dwelling according to the original plans exceeds sixteen
thousand ($16,000.00) dollars, and defendant will provide an exact figure upon receipt of
estimates,
44, The fair market value of the house has been drastically reduced due to the
hazardous condition of the driveway, the dangerous latent defect of the weak floor above the
garage and the uneven installation of the windows.
45. Had the house been properly constructed and located on the lot its fair market
value would have been at least one hundred forty-two thousand ($142,000,00) dollars,
46, Plaintiff had the house on the market for one hundred thirty-nine thousand
($139,000,00) dollars and did not receive any offers,
47, Due to the obvious defects defendant cannot ascertain the actual fair market value
for the house in its "as is" condition, but believes that it could go as low as one hundred thirty
thousand ($130,000,00) dollars,
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48, Plaintiff has breached his Construction Agreement with defendant and has caused
defendant to suffer reparation damages of at least sixteen thousand ($16,000,00) dollars and fair
market value loss of twelve thousand ($12,000.00) dollars,
WHEREFORE, defendant prays this Honorable Court will award defendant damages in
the amount of twenty-eight thousand ($28,000,00) dollars plus costs on his counterclaim,
Respectfully submitted,
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R, Mark Thomas, Esquire
Attorney for Defendant
101 South Market Street
Mechanicsburg, P A 17055
(717)796-2100
ID# 41301
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VERIFICATION
I verifY that the statements made in the foregoing document are true and correct. 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:
Illh6/1rl
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CERTIFICATE OF SERVICE
I, R, Mark Thomas, Esquire, hereby certify that I have served a copy of the within
document on the following by depositing a true and correct copy of the same in the U ,S, Mail at
Mechanicsburg, Pennsylvania, Postage pre-paid, addressed to:
Herschel Lock, Esquire
3107 N. Front Street
Harrisburg,PA 17110-1310
Date: / () II C? / /JV
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R, Mark Thomas, Esq,
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McGRAW-LOCK BUILDERS
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
:
NO. 00-2211
CIVIL
M. JOSEPH GILL
Defendant
CIVIL ACTION - LAW
PRAECIPE
~'O THE PROTHONOTARY:
please mark the Complaint filed in the above referenced
matter as being "settled and discontinued".
DATED: 1/7-7/UI
-J2P J,(
HERSCHEL LOCK, ESQUIRE
Attorney for Claimant
3107 North Front Street
Harrisburg, PA 17110
(717) 238-6661
Supreme Court No. 22691
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McGRAW-LOCK BUILDERS,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
VS.
: NO. 2000-2211
M. JOSEPH GILL,
: CIVIL ACTION - LAW
Defendant
PRAECIPE TO SETTLE. DISCONTINUE AND END
TO THE PROTHONOTARY:
Please mark the counterclaim~ which were filed in the above captioned case as settled,
discontinued and at end since the parties have reached an amicable resolution to this matter,
Respectfully submitted,
IM~
R. Mark Thomas, Esquire
Attorney for Defendant
101 South Market Street
Mechanicsburg, P A 17055
(717)796-2100
ID# 41301
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