HomeMy WebLinkAbout00-04794
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JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
: NO. 00-4794 CIVIL TERM
WESTHAFER CONSTRUCTION, INC.,
Defendant
: CIVIL ACTION - LAW
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WESTHAFER CONSTRUCTION, INC.,
Plaintiff
v.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 99-6418 MLD TERM
JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
: CIVIL ACTION - LAW
Defendants
TRIAL MEMORANDUM OF
JOHN T. LEWIS AND CLAUDIA R. GIRRBACH
I, FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This action arises out of a contract between Westhafer Construction, Inc. (hereinafter
"Westhafer") and John T. Lewis and Claudia R. Girrbach (hereinafter referred to collectively as
"Lewis"), under which Westhafer agreed to provide labor and materials for the improvement of
the Lewis home at 301 Harmony Lane, Camp Hill, Pennsylvania (hereinafter the "Project").
Although Westhafer asserts that the contract between the parties was oral, there is a written
proposal by Westhafer. The proposal contains a scope of work to be performed by Westhafer
and a price to be paid by Lewis for the work. The evidence will show that Lewis accepted the
proposal. On or about May 24, 1999, Westhafer submitted to Lewis a schedule of completion
which was agreed upon by the parties. Pursuant to the schedule prepared by Westhafer,
Westhafer was to complete all work on or before August 13, 1999. Under the agreement, Lewis
agreed to pay a lump sum price of $202,074.58.
On or about July 23,1999, Westhafer submitted its first invoice to Lewis in the amount
of $95, 180.80. Inasmuch as the agreement between the parties was silent as to when
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Westhafer's invoices were to be paid, Lewis paid the invoice within thirty (30) days, minus a
10% amount set aside for retainage to be held by Lewis consistent with the custom and practice
for construction projects. Lewis' payment was made on August 24, 1999, in the amount of
$85,662.70, reflecting 90% of West hafer's July 23, 1999, invoice. Westhafer submitted two (2)
additional invoices for payment by Lewis: one invoice dated August 24, 1999, in the amount of
$62,330.42; and another invoice dated August 26,1999, in the amount of$4,635.86. The
evidence will show that Westhafer had abandoned the Project prior to the date of these invoices.
It will also show that Westhafer included in its invoices representations that certain elements of
the Project were 100% complete when in fact those items were not completed. In particular the
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heating, ventilating and air conditioning system and the radiant heat system which Westhafer had
indicated being 100% complete were f~r from complete and needed extensive additional work to
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make the systems operable.
TIre evidence will further showl that although Westhafer had agreed to complete the
Project by August 13, 1999, Westhafer had in fact abandoned the Project by that date even
though the Project was far from COmplete. The evidence will show that Lewis sent Westhafer a
written notice to cure the default in September of 1999. Westhafer never responded to the notice
to cure. Instead, without any explanation or effort to cure the default, Westhafer responded by
filing a Mechanics' Lien Claim on or about October 21, 1999 against the Lewis property in the
amount of$66,966.28. Westhafer followed the Mechanics' Lien Claim by filing a Complaint to
enforce the Mechanics' Lien Claim on February 10, 2000. Lewis filed an Answer to Westhafer's
Complaint with New Matter and a Counterclaim in the nature of a setoff. Lewis asserted a
Counterclaim in the nature of a setoff because, following Westhafer's abandonment of the
Project, L~wis was forced to hire replacement contractors to complete and/or repair the work for
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which Westhafer was seeking payment. It is important to note that although the Mechanics' Lien
action ofWesthafer is an action in rem, Westhafer has included a purported claim under the
Pennsylvania Contractor and Subcontractor Payment Act seeking to recover statutory interest,
penalties and attomeys' fees from Lewis personally. Such a claim is barred by the Mechanics'
Lien Law (See discussion infra).
On or about July 5, 2000, Lewis filed a Complaint in this Court docketed at 00-4794
Civil Term seeking damages for breach of contract and violation ofthe Pennsylvania Unfair
Trade Practices and Consumer Protection Law in an amount in excess of$83,525.68. Lewis has
requested treble damages and attomeys' fees pursuant to the Pennsylvania Unfair Trade Practices
and Consumer Protection Law, because of misrepresentations contained in Westhafer's
applications for payment.
By Order of this Court dated September 8, 2000, Westhafer's Mechanics' Lien Claim
action and Lewis' action were consolidated for the purposes of trial.
II. DISCUSSION
A. WRONGFUL JOINDER OF CAUSES OF ACTION
In its complaint to enforce its Mechanics' Lien Claim, Westhafer seeks to append a claim
for a violation of the Pennsylvania Contractor and Subcontractor Payment Act (73 P.S. 9501 et.
seq.)(See Westhafer Complaint at paragraphs 15, 16 and Wherefore clause.)
A mechanics' lien claim, much like a mortgage foreclosure action, is an action in rem, as
opposed to an action in personam. See Mattemas v Stehman, 642 A.2d 1120 (pa. Super. 1994).
The claim asserted by Westhafer under the Contractor and Subcontractor Payment Act is
a statutory action seeking damages including statutory interest, penalties and attorneys' fees from
the Lewis' personally. Pennsylvania Rule of Civil Procedure 1657 specifically prohibits this.
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Pennsylvania Rule of Civil Procedure 1657 concerning actions on Mechanics' Lien Claims states
as follows: "Joinder of causes of action prohihited No other cause of action may he joined with
an action to ohtain judgment on a claim except that where the improvement is located in more
than one county and clail1'1s have heen filed in more than one of said counties the Plaintiff may
joint the claims in a single action. "( emphasis added) Because the Pennsylvania Rules of Civil
Procedure specifically prohibit Westhafer from asserting a claim under the Pennsylvania
Contractor and Subcontractor Payment Act within its Complaint to enforce the Mechanics' Lien
Claim, this Honorable Court must dismiss this claim along with Westhafer's demand for
statutory interest, statutory penalties and attorneys' fees with prejudice.
B. WESTHAFER'S ABANDONMENT CONSTITUTES A BREACH OF
CONTRACT.
Although, by Westhafer's own schedule it was to complete the Lewis Project on or before
August 13, 1999, the evidence will show that the work was far from complete when Westhafer,
without explanation, discontinued all progress on the Project. Evidence will be presented at the
trial of this matter indicating the specific items that remained to be completed by Westhafer at
the point in time when Westhafer inexplicably discontinued its work. In its New Matter to the
Lewis Complaint, Westhafer asserts that its abandonment of the Project was justified due to
Lewis' alleged failure to pay invoices timely, Lewis' wrongful withholding of retain age, and the
addition of alleged change orders. None ofthese reasons were raised or mentioned by Westhafer
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either orally or in writing prior to its ul!J.ilateral decision to discontinue all work. Indeed, there is
no evidence that Westhafer provided Lewis with any written notice setting forth the reasons why
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it was abandoning the Project.
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Lewis will offer as evidence a letter dated August 23, 1999, in which he requested
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Westhafer to provide a revised schedule in light of the fact that the scheduled time for
completion had passed. There was no response to this letter. Moreover, by way of a letter dated
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September 8, 1999, Lewis sent Westhafer a notice to cure the default under the construction
contract in order to avoid the necessity that Lewis hire a replacement contractor to complete the
work under W esthafer' s contract. Westhafer never returned to the Proj ect to cure the default.
Westhafer's only response to the notice to cure was, by its own admission, a Mechanics' Lien
Claim. (See Westhafer's Answer to Lewis Complaint at paragraphs 6 and 7.)
Westhafer's decision to abandon the Project before completion without any notice to
Lewis was unjustified and constitutes a material breach of the contract. Under the Restatement
(Second) Contracts 9235(2), "When performance of a duty under a contract is due, any non-
performance is a breach." Pennsylvania cases interpreting the Restatement (Specifically 9237)
have consistently held if a breach constitutes a material failure of performance, then the non-
breaching party is discharged from all liability under the contract. Oakridge Construction
Company v Tolley, 351 Pa.Super. 32, 504 A.2d 1343 (Pa.Super 1985).
Restatement (Second) Contracts 9241 sets forth the factors to consider in determining
whether a failure of performance is material as follows:
(a) the extent to which the injured party will be deprived of the benefit which he
reasonably expected;
(b) the extent to which the injured party can be adequately compensated for that part
ofthat benefit for which he will be deprived;
(c) the extent to which the party failing to perform or to offer to perform will suffer
forfeiture;
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(d) the likelihood that the party failing to perform or offer to perform will cure his
failure, taking account of all the circumstances including any reasonable
assurances;
(e) the extent to which the behavior of the party failing to perform or offer to perform
comports with standards of good faith and fair dealing.
The evidence to be offered at the trial of this matter will show that W esthafer' s breach by
way of abandoument was material in light of the factors enumerated in the Restatement (Second)
Contracts 9241. First, the Lewis' were deprived of the expected benefits of their contract (i.e.
receiving a completed home in accordance with the contract) by Westhafer's stoppage of work
and that Lewis can be adequately compensated for that deprivationlbreach by an award of
damages. Furthermore, it will be shown at trial that Westhafer gave no indication that it would
cure its failure to perform. Finally, it will be shown that Westhafer's unilateral abandonment,
with no explanation or justification, constitutes a complete failure of W esthafer' s conduct to
comport with standards of good faith and fair dealing and that the logical conclusion ofthe
evidence presented on this issue will be that Westhafer materially breached the contract. Thus
the Lewis' are discharged from any and all liability under the contract.
With respect to W esthafer' s unjustified abandonment and material breach of the contract,
the Oakridge case is instructive. Oakridge involved a dispute relating to the drilling of a well.
The owners of the home sent a letter to the contractor indicating that the charges for the drilling
of the well were in dispute and that all work for the water supply was to cease pending
satisfactory resolution of settlement or settlement under arbitration. As a result, the contractor
stopped work. The Court found that the contractor was unjustified in stopping all remaining
work on the home even in light of the homeowner's letter. The Court further held that the home
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owners did not anticipatorily breach the contract. Based upon an analysis using the factors set
forth in Restatement (Second) Contracts 9241, the Court held that the construction contractor
materially breached the contract by stopping its work without indication that it would cure its
failure to perform. Using a similar analysis, the facts as set forth above support a conclusion of
material breach on the part of Westhafer.
The appropriate measure of damage for a breach of construction contract where the
contractor fails to complete or properly complete the work under the contract is the cost of
completing the contract minus any unpaid balance on the contract. Oelschlegel v Mutual Real
Estate Investment Trust, 429 Pa.Super 594,633 A.2d 181 (Pa.Super 1993). Here, Lewis agreed
to pay Westhafer a total amount of $202,074.58 in exchange for Westhafer's complete and
workmanlike construction of all items under the contract. The evidence will show that Lewis
paid to Westhafer $85,662.70. The evidence will further show that following Westhafer's
abandonment of the Project, Lewis was forced to hire other contractors to complete and/or repair
Westhafer's contract work and has incurred additional costs in the amount of$219,194.90. Thus,
combined with the payment of $85,662.70 to Westhafer, Lewis has paid $304,857.60 for a
project which Westhafer was contractually obligated to complete for $202,074.58. As a result,
Lewis has incurred increased costs to complete the Project in the amount of$102,783.02. In
addition, because the Project was not completed in accordance with the schedule, Lewis could
not move into the house and incurred additional storage costs for storing furniture in the amount
of $4,805.54. Thus, the total damages incurred by Lewis as a result of Westhafer's breach of
contract is $107,588.54.
Lewis will introduce invoices, purchase orders, and proof of payment supporting the
aforementioned damages.
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C. WESTHAFER'S VIOLATION OF PENNSYLVANIA'S UNFAIR TRADE
PRACTICES AND CONSUMER PROTECTION LAW
Lewis will offer documentary evidence that Westhafer billed Lewis for work not
completed. Specifically, documents provided by Westhafer to Lewis in support of its invoices
indicated that several items of work were 100% complete when in fact those items of work were
not completed. In addition, other items were indicated on W esthafer' s invoices as being nearly
completed when in fact they were not. Included in these items are the following: the electrical
work, garage work, atrium work, windows and sliders, skylights, the HV AC system, the family
room addition, radiant heat, framing for the first floor and basement, roofing, and work on the
shop.
The evidence will show that Westhafer submitted applications for payment/invoices
demanding payment for quantities of work which had not in fact been performed by Westhafer.
Under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (73 P.S. 9201-1 et.
seq., (hereinafter the "Act"), at 920l-2( 4)(v), "It is an unfair method of competition and/or unfair
or deceptive act to represent that goods or services have sponsorship, approval, characteristics,
ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship,
approval, status, affiliation or connection that he does not have." (emphasis added) Photographs
to be offered at the trial ofthis matter depicting the actual conditions and status of completion at
the time Westhafer last performed work will indicate that items that Westhafer represented as
being 100% complete clearly were not. It is alleged and will be shown that Westhafer knew that
the invoices it submitted to Lewis did not accurately reflect the quantity of work completed and
that the invoices were submitted with the intent that Lewis pay an amount in excess of the
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quantity of work actually completed. These actions by Westhafer constitute a violation of the
Act.
The evidence to be presented at trial will show that Lewis suffered damages as a result of
Westhafer's violation of the Act as follows: (a) $21,625.94 to complete the electrical, heating,
air conditioning and sky lights for which Westhafer had billed 100%; and (b) $8,655.00 to
complete the remaining work that was represented by Westhafer to be 100%, or nearly 100%
complete. Thus, Lewis will show damages on its claim under the Act in the amount of
$30,280.94. In addition, the Act at 9201-9.2 specifically authorizes the award of treble damages,
costs and attorneys' fees, which Lewis seeks in this action.
Date: January 5, 2001
I
Theodore A. Adler, Esquire
Attorney J.D. No. 16267
Thomas O. Williams, Esquire
Attorney J.D. No. 67987
2331 Market Street
CampHill,PA 17011-4642
Telephone: (717) 763-1383
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RespectfUll
REAGER
Attorneys for John T. Lewis
and Claudia R. Girrbach
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CRRTIFICATR OF SRRVICR
AND NOW, this 5th day of January, 2001, I hereby verify that I have caused a true and
correct copy of the foregoing Trial Memorandum of John T. Lewis And Claudia R. Girrbach to
be hand delivered as follows:
Craig A. Diehl, Esquire
Linda A. Clotfelter, Esquire
LAW OFFICES OF CRAIG A. DIEHL
3464 Trindle Road
CampHill,PA 17011
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JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
00-4794 CIVIL TERM ~
WESTHAFER CONSTRUCTION, INC.,
Defendant
CIVIL ACTION - LAW
(
* * * * * * * * * * *
WESTHAFER CONSTRUCTION, INC.,
plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
99-6418 MLD TERM
?,,/
JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
Defendants
CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this 8th day of January, 2001, having used
up the full day and one half allotted to try this case, and
counsel having indicated that an additional half day is needed to
complet,e testimony, proceedings will recommence on Monday, April
2, 2001, at 8:15 a.m.
By the Court,
Edward E. Guido, J.
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L:~l'O l) -fYI ojJ
01-10-01
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Theodore Adler, Esquire
For J. Lewis & C. Girrbach
Craig A. Diehl, Esquire
For Westhafer Construction
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WESTHAFER CONSTRUCTION, : IN THE COURT OF COMMON PLEAS OF
INC., CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiff
V.
JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
Defendant
: NO. 99-6418 CIVIL TERM
JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
WESTHAFER CONSTRUCTION, : NO. 2000-4794 CIVIL TERM
INC.,
Defendants
: CIVIL ACTION LAW
ORDER OF COURT
AND NOW, this 3RD day of APRIL, 2001, at the request of defendant and
defendant's counsel the hearing scheduled for April 2, 2001, at 8: 15 a.m. on the above
captioned matter is CONTINUED. The next scheduled date and time will be Monday.
JUNE 11.2001. at 8:15 a.m. in Courtroom # 5.
Edward E. Guido, J.
Craig A. Diehl, Esquire
Theodore A. Adler, Esquire
Court Administrator
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WESTHAFER CONSTRUCTION, : IN THE COURT OF COMMON PLEAS OF
INC., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V,
JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
Defendant
: NO. 99-6418 CIVIL TERM
JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
WESTHAFER CONSTRUCTION, : NO. 2000-4794 CIVIL TERM
INC.,
Defendants
: CIVIL ACTION LAW
ORDER OF COURT
AND NOW, this 8TH day of SEPTEMBER, 2000, the hearing scheduled for
October 6, 2000, at 9:30 a.m. on the case docketed to 99-6418 is CONTINUED. A non-
jury trial is scheduled on both cases fof)"anua~iffiITAr8:3"'0~lt'n1:;-continuing into
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January 8, 2001.
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Theodore A. Adler, Esquire -- 'j / .. ,~/,'" 5 /N "/7/>!) - / 3 O'?,
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JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
: NO. 00-4794 CIVIL TERM
'.
WESTHAFER CONSTRUCTION, INC.,
: CIVIL ACTION - LAW
Defendant
***********************
WESTHAFER CONSTRUCTION, INC., : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: NO. 99-6418 MLD TERM
JOHN T. LEWIS and
CLAUDIA R. GIRRBACK,
: CIVIL ACTION - LAW
Defendants
ORDER
Jt.\
AND NOW, this 13 day of September, 2000, upon agreement of the parties, it is
hereby ORDERED that the above captioned cases are consolidated for all future proceedings,
including trial.
Edward E. Guido, J.
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JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
: NO. ff1J - 47 q '-f Cw.L.e T oU-<--
WESTHAFER CONSTRUCTION, INC.,
: CNIL ACTION - LAW
Defendant
NOTICR
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by attorney and filing in writing with the court
your defenses or objections to the claims set forth against you. You are warned that if you fail to
do so the case may proceed without you and a judgment may be entered against you by the court
without further notice for any money claimed in the complaint or for any other claim or relief
requested by the plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE TIllS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HA VB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, P A 17013
(717) 249-3166
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JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v. ,
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WESTHAFER CONSTRUCTION, INC.,
: NO. fJ-o. !..f1Cf'f ~.-~
: CIVIL ACTION - LAW
Defendant
COMPLAINT
1. The Plaintiffs are John T. Lewis and Claudia R. Girrbach, husband and wife
(hereinafter referred to collectively as "Lewis"), are adult individuals residing at 301 Harmony Lane,
Carnp Hill, Cumberland County, Pennsylvania.
2. The Defendant is Westhafer Construction, Inc., a corporation organized and doing
business under the laws of the Commonwealth ofPeunsylvania (hereinafter "Westhafer"), with its
principal place of business located at 120 West Allen Street, Mechanicsburg, Cumberland County,
Pennsylvania.
COUNT T - BREACH OF CONTRACT
3. Lewis and Westhafer entered into a written contract on or about April 22, 1999,
whereby Westhafer agreed to provide labor and materials for certain alteration work on Lewis'
home, and in exchange for Westhafer's workmanlike completion of said work under the written
agreement, Lewis agreed to pay to Westhafer the fixed sum of$202,074.58. A true and correct copy
of the proposal prepared by Westhafer' s estimator, Ed Barnes, which proposal contains the essential
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11. Lewis did not in any way prevent or hinder Westhafer from completing its work in
a timely and workmanlike manner.
12. All conditions precedent for the bringing of this action have occurred and/or have
been performed.
13. As of September 8, 1999, the date on which Lewis sent Westhafer a notice to cure
its default, Lewis had paid Westhafer $85,662.70.
14. As a result of the aforementioned breaches of contract by Westhafer, Lewis was
forced to hire replacement contractors to repair and/or complete the work within the scope of
Westhafer's work.
15. As a result ofthe aforementioned breaches of contract by Westhafer, Lewis has spent
$195,132 to complete and/or repair the aforementioned defective or incomplete work.
16. Combined with the payment of $85,662.70 paid to Westhafer, Lewis has spent
$280,794.70 to build a project for which Westhafer was contractually required to complete for
$202,074.58. Thus, the increased costs to Lewis to complete the project was $78,720.12.
17. Because the project was not completed in accordance with the schedule, Lewis could
not move into the house and incurred additional storage costs for storing their furniture in the amount
of$4,805.54.
WHEREFORE, Plaintiffs, John T. Lewis and Claudia R. Girrbach, respectfully request this
Honorable Court to enter judgment under Count I in their favor and against Defendant, Westhafer
Construction, Inc., in an amount in excess of$83,525.68, plus costs and interest.
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COUNTTT - VTOLATIONOF THE PENNSYT,VANTA TJNFATR
TRADE PRACTICES AND CONSUMER PROTECTION LAW (73 P S 920]-1 et seq)
18. The Plaintiffs incorporate herein by reference the averments of paragraphs one (1)
through seventeen (17) above as if set forth fully herein.
19. Under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (73
P .8. S20l-l et seq.) (hereinafter the "Act'), at S20l-2(4)(v), it is an unfair method of competition
and/or unfair or deceptive act to represent that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a
sponsorship, approval, status, affiliation or connection that he does not have. (emphasis added)
20, On August 24, 1999, Westhafer submitted a breakdown to Lewis purportedly
showing the work that it had completed on the project. A copy of the breakdown is attached hereto
as Exhibit D. Westhafer invoiced Lewis and sought payment therefor based on Exhibit D.
21. Westhafer misrepresented the work it had performed and for which it sought payment
in that:
a. the electrical work and the electrical extras were not completed at the
percentages shown;
b. the garage work shown was not 100% completed;
c. the atrium work shown as not 100% completed;
d. the windows and sliders were not 100% completed;
e. the skylights were not 100% completed;
f. the HV AC was not completed at the percentages shown;
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g. the family room addition was not 100% completed;
h. the radiant heat was not installed properly and did not operate properly;
1. the framing for the I st floor and basement was not 100% completed;
J. the roofing was not 100% completed; and
k. the shop work shown was not 100% completed.
22. Westhafer submitted applications for payment/invoices to Lewis demanding payment
for quantities of work which had not, in fact, been performed by Westhafer.
23. Westhafer knew that the invoices it submitted to Lewis did not accurately reflect the
quantity of work completed and the invoices were submitted with the intent that Lewis pay an
amount in excess of the quantity of work actually completed.
24. Westhafer' s actions in submitting invoices demanding payment for quantities of work
which had not yet been performed constitute a violation of the Act.
25. Under g201-2(4)(xxi), it is a violation of the Act to engage in any fraudulent or
deceptive conduct which creates a likelihood of confusion or of misunderstanding to a consumer.
26. Westhafer violated g20 1-2( 4)(xxi) by submitting invoices/applications for payment
which did not accurately reflect the quantity of work performed but rather overstated the quantity
of work completed, which created confusion for Lewis.
27. Westhafer submitted applications for payment/invoices to Lewis demanding payment
in which Westhafer represented that it had completed certain items when, in fact, those items were
not completed.
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28. Westhafer' s actions as set forth above constitute violations ofthe Act.
29. As a result ofWesthafer's violation of the Act, Lewis has suffered the following
damages:
a. To complete the electrical, heating, air conditioning and skylights, for which
Westhafer had billed 100%: $21,625.94.
b. To complete remaining work that was represented to be 100% completed: an
amount in excess of $25,000.00.
30.. Section 201-9.2 ofthe Act authorizes the award of treble damages and attomeys' fees.
WHEREFORE, Plaintiffs, John T. Lewis and Claudia R. Girrbach, respectfully request this
Honorable Court to enter judgment under Count II in their favor and against Defendant, Westhafer
Construction, Inc., in an amount in excess of$46,625.94 plus interest, treble damages and attorneys'
fees.
REAGER, .
Date: June 30, 2000
Theodore A. Adler, Esquire
Attorney J.D. No. 16267
Thomas O. Williams, Esquire
Attorney J.D. No. 67987
2331 Market Street
Camp Hill, PA 17011-4642
Telephone: (717) 763-1383
Attorneys for Plaintiffs
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COMMGNICATION ~~;12 ?ACE.9
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A?R. 22 '99 (THi.i) 12; 35
COMMUNICA'TION NQ;:2 ?AGE.10
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7176976307
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Schedule of John Lewi. HOIJ$. RenOVlltions
May u-May za / ~< '
c" ~, -7' I L lOC- \1'--\C,4'-
" Frame I" floor walls '-- I;;
. Dig garap. addition. remove auium slab ,--
. Cut ho--,.nt ftoor tbr plumbins ' ----+, Vv h Y (
. PrqJtixartbr~8<additJon ...::- ~-
. , Inspect fbotn
" Pour fuoten
. Roogh plumbing in concrete floor in basement
. InspecI plumbing
. Pour plumbing trenc:hes in basement '
. Con't to rmlOve exterior brick ~
June 1- JUlie 4
Con't 1St tloorframing ()o~
Complete removal of exterioc briclt-__
Remove esistiDg atrium roof
Complete removal of existing atriullI roof
Early start of block @8ara!le. additioa 8< steps
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....-:::c;nmlete I" floor framing --::::.
.'-.::. Start to fnme b....ment w.tls
. Late start ofbloclc @ garage, additioa 8t steps
. Start to liame exterior walls
. ,Plumbing on I" floor
.. (Early) complete block@ garage; addition and steps
,llUle 14 - SlIIUl 18
. Complete extaior wall framing
. COI1Ipleto block @ sarage, addition &: steps
. Early start to frame garage aDd addition
. Insulate exterior walls
. Sheet exterior walls
0 Instsll ~ bibs on exterior walls
. Stan radiant heat
. Complete radi8lll heat
. Slan.elect, I" floor
. Start HV AC I- floor
. POUt' gange, alrium &: addition floon
" Complete elee: I" floor
. Complete Hv AC 1- floor
. lnspec:tiooslelect
. COl1l1'lete buemenl framing
1,J ~ c.-v<AlSV',
Y.AY. 24 '99 (MO::\')
COY.MwN!CAT:O~ Ko:..
?AGE. 2
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71 76976307
1 une 11 - JIUIe 2S
. Complete garage &: addition ftaming
. EItd. In garage. addition
. Frame lll:rium IIld _ _
. InlIhl11 wilidowl &:. doors
. iDJuIate I. floor interior wells and SII'88"
. Insull shingles OIl Dew garage
. Remove shiDs1es from existing house
. Elect. In basement wells
. Plumbing in basement wall.
. InstoII new garage door &:. windows in garage
June %1- July 2
. Complete atrium &:. new entraDce way
. Start siding &:. soffit
. Stan shiDs1es on main roofworbbop
. Frame wor1c shop
. Hang drywall in new garage &:. worlcJhop
.. Insulate basemont walls &:. ceilings
. Bol< oul chimney as per p1an
July S - Silly 9
. ~ drywall in I" floor
. Stan to bang basement drywall
. Elect. In lIIrium
.. !naa1I skylight 8< windows in atrium
. Install new ~e door
.. Start to finish drywall in garage&:. woricsbop
. Insulate atrium
. Complete shingles on main roof workshop &: addition '
.. Complete siding &:. soffit
July 12 - July if;
. Start to 1iniJh I" floor drywall
.. Compete hanging of basement drywall
. Complete finish in garage 8< workshop
. Complete shingles on atrium
. Trim CUt garage 8< workshop
. Paint garaee . workshop wall.
Y.AY. 24 . 99 (MON) ",:6
I
COMMUNICAT:O~ ~c,"
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PoAGE;: 03
PAGE. :3
,~
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OS/24/1999 11:15 7176976307
Jaly 19 - JIIly U
.. Start to finish basemem drywall
.. Complete cIry1lIaIl (mieb on I" floor
.. Start to finish alrium drywall
.. Start to trim I" floor
. Start to pnm.1" ll00r wall.
. CollJjllete trillll" floor
.. Insulate c:eilings
July 16-JuIy 3&
. Stan to install .......me floorinp
.. COllJjllete III floor painting
.. Complete drywall finish in balement,
. Stattto triOl out basement
.. Complere bafe!neJtI rim
.. Install vcr tile in laundry room
Aapat2-AlIPIt6
<> Continuo to inIlaII coraotie flooring
.. limlalI kitchen cabinets It. eoumer tops
.. Install blllh room cabinets It counter tops
.. Install blllh rOOlll tixtures
.. Install eleetrical trilll
.. Start to IandlCafl'l disturiled area
AupS! 9 . AllgllSt 13
.. Completion of all ~e flooring
.. Complete basomelll \lIinting
.. Install earpeI in basement
.. Install laundry room fixtures c!t cabinels
.. Install hand ralllngs @ lIlepa in atriwrl
.. Completions ofjo!>
Y.Ay, 24 . 99 (:MON)
: 17
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September 8, 1999
Steve Westhafer
Westhafer Construction Inc,
120 West Allen Street
Mechanicsburg, PA 17055
Re: Construction work at 301 Harmony Lane, Camp Hill, PA
Dear Mr. Westhafer:
As you know, no work is being performed by your company on our house, You last
performed any work on August 16, 1999,
By letter dated August 23, 1999, I sent you a check for $85,662,79, which represents
payment for the work completed through July 23, 1999, less 10% retainage, You cashed that
check, In the August 23, 1999 letter, 1 asked you to provide me with a new progress schedule by
August 24, 1999, Instead, on August 24, 1999, you sent me another application for payment
seeking an additional payment of $45,618,17, plus release of the retainage previously withheld and
an additional $7,194,16 for 5% overhead and profit on scheduled values, Your letter also
identifies a significant amount of work as being 100% completed when it does not appear to have
reached that stage,
1n any event, it appears that you have abandoned the project. Moreover, you did not
secure the house when you left and damage has occurred from the recent heavy rains, You are
hereby notified that your actions constitute a default of your contractual obligations, You are
given seven (7) days from the date of this letter to cure the default by doing the following:
(a) return to the project and resume work; and
(b) provide a proposed schedule for completing the remaining work,
As to your August 24, 1999, invoice, 1 am in the process of determining the status of the
items listed in your invoice, If I deterrnine that any additional payment is due, I will make
, " .
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Steve Westhafer
September 8, 1999
Page 2
payrnent into an escrow account provided you have cured the default and progress is being made
on the project, We note that only two weeks have passed since I received your invoice. Since it
is customary for payment to be net thirty days, no payment would be due until September 24,
1999, Before any payment is released, however, we will require waivers of liens from your
subcontractors and suppliers,
If you do not cure the default as demanded herein, I will have no choice but to retain a
replacement contractor. If this becomes necessary. you will be liable for the additional costs to
complete the renovations and you will also be liable for all consequential damages such as
additional rent incurred by us, It is in the interest of all parties to resolve this without costly
litigation, I trust you agree and will cure your default.
Very truly yours,
~leJlS'
John Lewis
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CONSTRjUCTION.. INC.
(71 7) 697-6305 . FAX (71 7) 697-6307
J 20 West Allen Street. Mechanicsburg. PA 17055
August 24, 1999
John T. Lewis
Claudia R. Girrback
PO Box 1277
Camp Hill, PA 17011
Re: Construction work at 301 Harmony Lane, Camp Hill, PA
Description of Work Scheduled Value Previous Total % Total Due
Application Completed
Demo $9,354,00 $9,354,00 100% $0,00
Electrical as per proposal $6,566,00 $3,282,00 85% $2,299,10
Electrical extras per owner $1,055,00 $0,00 100% $1,055,00
Plumbing $8,993,00 $5,395,00 85% $2,249,05
Flooring Re-plywood $4,197,91 $4,197,91 100% $0,00
Trees $4,100,00 $0,00 100% $4,100,00
Garage
Footer Excavation $1,600,00 $1,600,00 100% $0,00
Concrete Footers $756,00 $756,00 100% $0,00
Masonary $480,00 $480,00 100% $0,00
stone Pad $150,00 $150,00 100% $0,00
Framing $2,450,00 $1,960,00 100% $490,00
Concrete Floor $1,460,00 $0,00 100% $1,460,00
Atrium:
Demo concrete &
Footer Excavation $1,000,00 $1,000,00 100% $0,00
Footer placement $245,00 $245,00 100% $0,00
Masonary $480,00 $480,00 100% $0,00
Stone Pad $277.50 $0,00 100% $277.50
Framing $3,600,00 $3,600,00 100% $0,00
Concrete Floor $79000 $0,00 100% $790,00
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Mr, John T, Lewis
Claudia R. Girrback
August 24, 1999
Page 2
Description of Work Schedluled Value From Previous Total % Total Due
/Windows & Sliders Application, Completed
$13,429,67 $13,429,67 100% $0,00
/ Skylights $4,171,21 $4,171,21 100% $0,00
,.Y Additional Skylight and
window materials $2,765,29 $0,00 100% $2,765,29
Basement stairwell:
Masonary $500,00 $500,00 100% $0,00
Concrete pad $200,00 $200,00 100% $0,00
Excavation $400,00 $400,00 100% $0,00
(HVAC as per proposal $7,500,00 $6,000,00 90% $750,00
0-iVAC additions per
owner $1,675,00 $0,00 100% $1,675,00
,Family Room Addition $7,019,00 $5,264,25 100% $1,754,75
j Radiant Heat as per
proposal $15,038,00 $14,288,00 100% $750,00
Radiant Heat Styrofoam $802,10 $0,00 100% $802,10
Framing Labor:
1st Floor $3,600,00 $3,600,00 100% $0,00
Relocate Ceiling
joists $2,160,00 $2,160,00 100% $0,00
Exterior wall build
out $2,160,00 $2,160,00 100% $0,00
Basement framing $2,400,00 $2,400,00 100% $0,00
Roofing:
Roofing Re-plywood $2,200,00 $0,00 100% $2,200,00
Roof Shingling $4,008,73 $0,00 100% $4,008,73
Insulation $6,536,00 $0,00 100% $6,536,60
Shop:
Framing Labor $864,00 $0,00 100% $864,00
Concrete Floor $1,150,00 $0,00 100% $1,150,00
Surveying Company $74000 $0,00 100% $740,00
Materials Eberly Lumber $13,463,39 $7,768,36 100% $5,695,03
Mike Walaman CAD work $2,645,75 $0,00 100% $2,645,75
Nail Fasteners $409,92 $271,13 100% $137,92
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John T. Lewis
Claudia R. Girrback
August 24, 1999
Page 3
French Drain Labor
French Drain Materials
Gas Piping Labor
Gas Piping Material
Septic Tank Pumping
Portable Toilet
$55,00
$89,22
$180,00
$81,82
$119,00
$136,70
$143,883,17
$0,00
$0,00
$0.00
$0,00
$0,00
$68,35
$95,180,80
$55,00
$89,22
$180,00
$81,82
$119,00
$68,35
$45,618,17
Sub-Total: $45,618.17
100%
100%
100%
100%
100%
100%
Retainage Held from
1 st Payment $9,518,09
OH & P 5% of Scheduled Value $7,194,16
includes Supervison Wages
TOTAL DUE: $62,330.42
.
Please sign for acknowledgement and agreement for payment.
Authorized Representative
Westhafer Construction Co,
John T. Lewis or Claudia R, Girrback
Resident of 301 Harmony Lane, Camp Hill, PA
-
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VERIFICATION
I, JOHN T, LEWIS hereby verify that the averments of the foregoing pleading are true
and correct to my personal 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,
1 ~\S.
JOHN T, LEWIS
Date: ioj30loo
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JOHN T, LEWIS and
CLAUDIA R. GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL V ANlA
Plaintiffs
v,
: NO, 00-4794 CIVIL TERM
WESTHAFER CONSTRUCTION, INC"
: CIVIL ACTION - LAW
Defendant
ACCEPTANCE OF SERVICE
As attorney for Defendant Westhafer Construction, Inc" I hereby accept service of the
Complaint in the captioned matter on its behalf, and am authorized to do so,
~,~d
Craig A. iehl, EsqUIre
DATE: ::r:/r /I, ~ODO
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CLAUDIA R, GIRRBACH,
; IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v,
: NO, 00 - l./7q 1.1 CI vii ierm
WESTHAFER CONSTRUCTION, INC"
: CNIL ACTION - LAW
Defendant
PROOF OF SERVICE
I, Theodore A. Adler, verify that on August 4, 2000, I caused the Notice which is attached
hereto as Exhibit A to be placed in the United States mail, first class, postage prepaid and addressed
to Defendant c/o its attorney, Craig H, Diehl, Esquire, at 3464 Trind1e Road, Camp Hill,
Pennsylvania 1701 L A copy of the certificate of mailing is attached hereto as Exhibit B,
Respectfully submitted,
Date: August 7,2000
COGNETTI, P,C,
Theo ore A, Adler, Esquire
Attorney LD, No, 16267
2331 Market Street
Camp Hill, PA 17011-4642
Telephone: (717) 763-1383
Attorneys for Plaintiffs
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JOHN T, LEWIS and
CLAUDIA R. GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL V ANlA
Plaintiffs
v,
: NO,
WESTHAFER CONSTRUCTION, INC"
: CIVIL ACTION - LAW
Defendant
To: Westhafer Construction, Inc.
c/o its attorney, Craig H. Diehl, Esquire
Date of Notice:
August 3, 2000
IMPORT ANT NOTTCR
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN
APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE
COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST
YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE,
'.A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY
LOSEYOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE TillS
NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT
AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT
WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, P A 17013
(717) 249-3166
..
.
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Theodore A, Adler, Esquire
Attorney I.D, No, 16267
2331 Market Street
Camp Hill, PA 17011-4642
Telephone: (717) 763-1383
Attorneys for Plaintiffs
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U,S, POSTAL SERVICE C RTIFICA TE OF MAILING
MA v BE USED FOR DOMESTIC AND INTERNATIONAL MAil. DOES NOT
PROVIDE FOR INSURANCE-POSTMASTER
Recei'tied From:
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.U.S. G.P.O.: 1992. 329-823/6923:
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JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-4794 CIVIL TERM
WESTHAFER CONSTRUCTION,
INC.,
: CIVIL ACTION - LAW
Defendant
NOTICE TO PLEAD
TO: John T, Lewis and Claudia R. Girrbach
c/o Theodore A. Adler, Esquire
REAGER, ADLER & COGNETTI, P,C,
2331 Market Street
Camp Hill, PA 17011-4642
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED
NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A
mDGMENT MAYBE ENTERED AGAINST YOU,
Respectfully submitted,
LAW OFF1CES OF CRAIG A. DIEHL
Date:-.A "JU4 t 'l, ~ODO
By: ~Q, lr.11
Craig ~, Diehl, Esquire
Attorney ID No, 52801
3464 Trindle Road
Camp Hill, PA 17011
(717) 763-7613
Attorney for Defendant
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JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-4794 CIVIL TERM
WESTHAFER CONSTRUCTION,
INC.,
: CIVIL ACTION - LAW
Defendant
ANSWER WITH NEW MATTER
1. Admitted,
2, Admitted,
COUNT I - BREACH OF CONTRACT
3, Denied, No written contract exists, A written bid was prepared, Work by
Defendant was to be performed on a time and material basis. A price not to exceed based upon
the allowances set forth in the bid was agreed upon at $202,074,58, The written proposal speaks
for itself.
4, Admitted in part, Denied in remainder. It is admitted that a schedule of
completion was agreed upon prior to commencement of work, However, Plaintiffs requested
numerous changes and directly caused significant delays which adversely impacted the schedule
of completion as hereinafter described:
A. Numerous electrical changes;
B, No design for front porch;
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C, Extra skylights;
D, Interior wall changes;
E, Delays waiting for CCD cabinet;
F, Extra floor drains in basement;
G, Replacement of rotten sub floor;
H, Delay by Mr, Lewis in obtaining new roof sheeting; and
I. Delay by Mr, Lewis in installing snow guard,
It is denied that Defendant was the cause for failure to complete the project on time,
5, Denied, Defendant last performed work on August 20, 1999,
6, Admitted in part, Denied in remainder. It is admitted that a letter dated September
8, 1999 exists, Any and all contents of said letter are denied in that Plaintiffs refused to pay
outstanding invoices,
7, Denied, Defendant responded to Plaintiffs' letter by sending a Notice of
Mechanics Lien Claim to Plaintiffs, Defendant did not complete the project due to nonpayment
by Plaintiffs,
8, Denied, Defendant performed the following work in a workmanlike manner:
A. Demolition was completed;
B, Electrical work performed consisted of:
(1) All boxes were set for switches and receptacles, however, Plaintiffs
requested Defendant to relocate many of them;
(2) CCD Panels were never received;
2
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(3) Defendant had to relocate many light locations pursuant to
Plaintiffs' requests;
C, Cleaning and grubbing were completed;
D, Framing was completed per proposal except for front porch in which
Defendant never received any prints and changes made by Plaintiffs;
E, Windows and sliders were installed per bid;
F, Skylights were not part of bid and was an extra;
0, Heating and air conditioning was 90% complete;
H. Roof was completed except for changes made to the front porch;
,
L Insulation was completed;
J, Gas piping was completed even though it was an extra cost;
I
K, Sheet rock was not completed because Plaintiffs chose to handle
themselves;
L, Painting was not completed because drywall was not completed;
M, Siding, gutters and flashing were not completed because Plaintiffs chose
to handle themselves;
N, Grading and seeding were not completed because Plaintiffs desired to
complete themselves, Also, was not part of bid;
0, Paving of driveway was not completed because Plaintiffs desired to
complete themselves, Also, was not part of bid;
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p, Flooring, tile and carpet were not completed because Plaintiffs chose not
to accept the designated allowances per the bid and agreed to take care of
themselves;
Q. 1nterior and exterior doors were not completed because Defendant pulled
off job for nonpayment;
R. Kitchen cabinets were not completed because Plaintiffs chose not to accept
the designated allowances and hired Mateer Custom Cabinetry;
S, Kitchen counter tops and appliances were to be handled directly by
Plaintiffs; and
T, Interior trim was not completed because Defendant pulled off job for
nonpayment.
9, Denied, Such averment contains conclusions of law to which no responsive
pleading is required,
10, Denied,
A. All employees and subcontractors were duly qualified;
B, Installation of materials and systems were done pursuant to code or good,
workmanlike standards;
C, Due to numerous changes and delays caused directly by Plaintiffs, it
became impossible to complete the job as originally agreed upon;
D, Plaintiffs failed to provide necessary materials and withheld monies which
were never agreed to, Plaintiffs also refused to pay for completed work;
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E, Defendant believes that all percentages reflected on invoices accurately
depict the progress of the project;
F, Defendant constructed all work in a workmanlike manner combined with
an accepted quality of construction; and
G, Plaintiffs' actions made it impossible to complete the job on time,
11, Denied, Plaintiffs requested Defendant to modify the framing, electrical, and
numerous other items on almost a daily basis,
12, Denied, Plaintiffs did not pay Defendant and subsequently informed Defendant
that payment was not due until the project was complete,
13, Denied, Although a partial payment was made, Defendant disputes that any
payment made was for an accurate amount.
14, Denied, It was the breaches by Plaintiff and refusal to pay invoices that caused
Defendant to stop work on the project.
15, Denied, After reasonable investigation, Defendant is without sufficient knowledge
to form a belief as to the truth of said averment.
16, Denied, After reasonable investigation, Defendant is without sufficient knowledge
to form a belief as to the truth of said averment.
17, Denied, After reasonable investigation, Defendant is without sufficient knowledge
to form a belief as to the truth of said averment.
WHEREFORE, Defendant, Westhafer Construction, Inc" respectfully requests this
Honorable Court to dismiss Count I with prejudice and order such other relief as is just and
equitable,
5
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COUNT II - VIOLATION OF THE PENNSYLVAN1A UNFAIR TRADE
PRACTICES AND CONSUMER PROTECTION LAW
18, Denied, Defendant incorporates its answers to the averments of paragraphs 1-17
above as if set forth fully herein,
19, Denied, Said averment contains conclusions of law to which no responsive
pleading is required,
20, Admitted, Defendant confirms that the breakdown shown on Exhibit "D"
accurately reflects the work completed,
21, a,-k, Denied, Defendant did not misrepresent the work performed and for which
payment is sought. Exhibit "D" properly reflects the work performed,
22, Denied, Defendant's request for payment was accurate and based on work
completed,
23, Denied, Defendant's request for payment was accurate and based on work
completed,
24, Denied, Said averment contains conclusions of law to which no responsive
pleading is required,
25, Denied, Said averment contains conclusions of law to which no responsive
pleading is required,
26, Denied, Defendant did not misrepresent the work performed and for which
payment is sought. Exhibit "D" properly reflects the work performed,
27, Denied, Defendant's request for payment was accurate and based on work
completed,
6
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28, Denied, Said averment contains conclusions of law to which no responsive
pleading is required,
29, a,-b, Denied, After reasonable investigation, Defendant is without sufficient
knowledge to form a belief as to the truth of said averment.
30, Denied, Said averment contains conclusions of law to which no responsive
pleading is required,
WHEREFORE, Defendant, Westhafer Construction, Inc., respectfully requests this
Honorable Court to dismiss Count 11 with prejudice and for such other relief that this Court
deems just.
NEW MATTER
31, Plaintiffs requested and consented to numerous change orders but have failed to
pay for these requested changes,
32, Plaintiffs' actions resulted in making it impossible to perform the project per the
completion schedule due to their failure to pay invoices timely, unilaterally deciding to hold a
retainage amount which was never agreed upon, failure to provide prints to complete the front
porch, and failure to timely perform tasks which Plaintiffs wanted to handle themselves,
33, Defendant was justified in refusing to complete the project due to nonpayment by
Plaintiffs, withholding retainage amounts never agreed upon, and failing to pay for "extras" that
Plaintiffs requested,
WHEREFORE, Defendant, Westhafer Construction, Inc" respectfully requests this
Honorable Court to dismiss the Complaint with prejudice,
7
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Dated: August -1-, 2000
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Respectfully submitted,
LAW OFFICES OF CRA1G A. DIEHL
By: ~a.lJ~
Craig K Diehl, Esquire
Attorney 1D No, 52801
3464 Trindle Road
Camp Hill, PA 17011
(717) 763-7613
Attorney for Defendant
8
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JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-4794 CNIL TERM
WESTHAFER CONSTRUCTION,
INC.,
: CIVIL ACTION - LAW
Defendant
VERIFICATION
I, STEVE E. WESTHAFER, President of WESTHAFER CONSTRUCTION, INC.,
VERIFY that the statements set forth in the foregoing ANSWER WITH NEW MATTER 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,
WESTHAFER CONSTRUCTION, me.
Dated:
g/3/BO
f I
By:
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.
JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-4794 CIVIL TERM
WESTHAFER CONSTRUCTION,
INC.,
: CIVIL ACTION - LAW
Defendant
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the date hereof, a copy of the foregoing
ANSWER WITH NEW MATTER was served by way of United States mail, first class, postage
prepaid, addressed as follows:
Theodore A. Adler, Esquire
REAGER, ADLER & COGNETTI, P,C,
23 31 Market Street
Camp Hill, PA 17011-4642
LAW OFFICES OF CRAIG A. DIEHL
Dated: August L, 2000
By ~_-' 1, /?
~mussen, Legal Assistffiit
3464 Trindle Road
Camp Hill, P A 17011
(717) 763-7613
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JOHNT, LEWIS and
CLAUDIA R. GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v,
: NO, 00-4794 CIVIL TERM
WESTHAFER CONSTRUCTION, INe"
: CNIL ACTION - LAW
Defendant
PLAINTIFFS' RRPLY TO NRW MATTRR
31. DenIed, On July 23, 1999, Defendant submitted to Plaintiffs an application for
payment in the amount of$95,180,80, On August 16, 1999, it abandoned the Project. On August
23,1999, Plaintiffs mailed a check to Defendant in the amount of$85,662,79, representing ninety
percent (90%) of the application for payment. Ten percent (10%) was held back for retainage, by
agreement of the parties, Defendant cashed the check without protest. Defendant never returned to
the Project, nor did it ever claim that it had abandoned the Project because of unpaid change orders,
32" Denied, Plaintiff received one application for payment prior to Defendant
abandoning the Project. It was paid within thirty (30) days, less ten percent (10%) for retainage as
agreed to by the parties, All necessary plans were provided to Defendant and Plaintiffs did not
perform any work. Moreover, at no time did Defendant advise Plaintiffs that it was "impossible"
for it to perform its work in accordance with the completion schedule,
33, Denied as a legal conclusion, In further response, Plaintiffs incorporate herein by
reference their replies to paragraphs 31 and 32 of Defendant's New Matter.
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WHEREFORE, Plaintiffs, John T, Lewis and Claudia R. Girrbach, respectfully request this
Honorable Court to enter judgment as demanded in Counts I and II of the Complaint.
Date: August 22, 2000
~~/
Theodor A, Adler, Esquire
Attorney I.D, No, 16267
Thomas 0, Williams, Esquire
Attorney I.D, No, 67987
2331 Market Street
Camp Hill, PA 17011-4642
Telephone: (717) 763-1383
Attorneys for Plaintiffs
2
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,
.
.
VERIFICA TION
I, JOHN T, LEWIS hereby verify that the averments of the foregoing pleading are true
and correct to my personal 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,
~-\S
JOHN T, LEWIS
Date: ''g'-;;J -(? 0
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CERTIFICATE OF SERVICE
AND NOW, this 22nd day of August, 2000, I hereby verify that I have caused a true and
correct copy of the DEFENDANTS' REPLY TO NEW MATTER to be placed in the US, mail, first
class, postage prepaid and addressed as follows:
Craig A, Diehl, Esquire
Linda A. Clotfelter, Esquire
LAW OFFICES OF CRAIG A. DIEHL
3464 Trind1e Road
Camp Hill, P A 17011
THEO ORE A. ADLER, ESQUIRE
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WESTHAFER CONSTRUCTION, : IN THE COURT OF COMMON PLEAS OF
INC" : CUMBERLAND COUNTY, PENNSYLVANIA
J;'laintiff
V.
JOHN T, LEWIS and
CLAUDIA R. GIRRBACH,
Defendant
: NO, 99-6418 CIVIL TERM
JOHN T, LEWIS and
CLAUDIA R. GIRRBACH,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
WESTHAFER CONSTRUCTION, : N ,2000-4794 CIVIL TERM
INC"
Defendants
: CIVIL ACTION LAW
ORDER OF COURT
AND NOW, this 8TH day of SEPTEMBER, 2000, the hearing scheduled for
October 6, 2000, at 9:30 a.m. on the case docketed to 99-6418 is CONTINUED, A llilll:
im:y tria] is scheduled on both cases for JanullQ' 5_ 2001. at 8-30 a m., continuing into
January 8, 2001.
Court Administrator
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9 - '8-00
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Craig A, Diehl, Esquire
Theodore A, Adler, Esquire
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JOHN T, LEWIS and
CLAUDIA R, GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
:/
: NO, 00-4794 CIVIL TERM
v,
WESTHAFER CONSTRUCTION, INC"
: CIVIL ACTION - LAW
Defendant
***********************
WESTHAFER CONSTRUCTION, INC" : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v,
: NO, 99-6418 MLD TERM
JOHN T, LEWIS and
CLAUDIA R. GIRRBACK,
: CNIL ACTION - LAW
Defendants
ORDER
J.\
AND NOW, this /3 day of September, 2000, upon agreement of the parties, it is
hereby ORDERED that the above captioned cases are consolidated for all future proceedings,
including trial.
Edward E, Guido, J,
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REAGER, ADLER & COGNETTI, PC
ATTORNEYS AND COUNSELORS AT LAW
o
SEP 13 2000
2331 MARKET STREET
CAMP Hill, PENNSYLVANIA 17011-4642
717-763-1383
TElEFAX 717-730-7366
WEBSITE: ReagerAdlerPC,com
THEODORE A. ADLER +
DAVID W, REAGER
MARIA p, COGNETTI ++ ,
LINUS E. FENIClE
DEBRA DENISON CANTOR
THOMAS 0, WilLIAMS
SUSAN H, CONFAIR
PETER L. lEONE
Writer's E-Mail Address:taadler@epix.net
+ Certified Civil Trial Specialist
++ Fellow, American Academy
of Matrimonial Lawyers
September 11, 2000
Honorable Edward E, Guido
Cumberland County Courthouse
1 Courthouse Square
Carlisle, P A 17013-3387
RE: John T. Lewis and Claudia R, Girrbach v, Westhafer Construction, Inc.
Our File No, 99-724
Dear Judge Guido:
Pursuant to your directions, r am enclosing a proposed Consolidation Order in the
captioned matter, A copy of this proposed order is also being sent to Mr, Diehl.
rfyou have any questions regarding the proposed Order, please do not hesitate to contact
me,
TAA/cmc
Enclosure
cc: Craig Diehl, Esq, (w/encl.)
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JOHN T, LEWIS and
CLAUDIA R, GlRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL V ANlA
Plaintiffs
v,
: NO, 00-4794 CNIL TERM
WESTHAFER CONSTRUCTION, INC"
: CNIL ACTION - LAW
Defendant
CERTIFICATE OF SERVICE
AND NOW, this 6th day of October, 2000, I hereby verifY that I have caused a true and
correct copy of the Plaintiffs' Answer to Defendant's First Request for Production of Documents
to be placed in the U,S, mail, first class, postage prepaid and addressed as follows:
Craig A, Diehl, Esquire
Linda A, Clotfelter, Esquire
LAW OFFICES OF CRAIG A, DIEHL
3464 Trind1e Road
Camp Hill, P A 17011
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JOHN T, LEWIS and
CLAUDIA R. GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL V ANlA
Plaintiffs
v,
: NO, 00-4794 CNIL TERM
WESTHAFER CONSTRUCTION, INC"
: CNIL ACTION - LAW
Defendant
CERTIFICATE OF SERVICE
AND NOW, this 6th day of October, 2000, I hereby verify that I have caused a true and
correct copy of the Plaintiffs' Answer to Defendant's First Set of Interrogatories to be placed in
the U.S, mail, first class, postage prepaid and addressed as follows:
Craig A, Diehl, Esquire
Linda A. Clotfelter, Esquire
LAW OFFICES OF CRAIG A. DIEHL
3464 Trindle Road
Camp Hill, PA 17011
The dore A. Adler, Esquire
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JOHN T, LEWIS and
CLAUDIA R, GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL V ANlA
Plaintiffs
v,
: NO, 00-4794 CIVIL TERM ./
WESTHAFER CONSTRUCTION, INC"
: CIVIL ACTION - LAW
Defendant
***********************
WESTHAFER CONSTRUCTION, INC" : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL V AN1A
Plaintiff
v,
: NO, 99-6418 MLD TERM
JOHN T, LEWIS and
CLAUDIA R. GIRRBACH,
: CIVIL ACTION - LAW
Defendants
ORDER
(..'"
AND NOW, this day of November, 2000, upon consideration of the Motion
of John T, Lewis and Claudia R, Girrbach to compel answers to request for production of
documents propounded upon Westhafer Construction, Inc" it is hereby ORDERED that
W esthafer Construction, Inc, shall serve upon Lewis and Girrbach' s counsel documents
responsive to the request for production of documents within Z () days of the date of this
Order. -It is fUJ.ti:J.cr ORDERED LlJ.dt ~[th" aesaHlems arg "l'\nt cprvprlllprm r.rmnF:el within
-
day", \Vl;;"tiJ.af,-,J. vv~ll ~'-' pJ.,-,,-,ll.ld,-,d frenlsfferiHg a8SlUIlsRts at the. triaJ ^ft"h-ij!' ~a"p---.,
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Okibadl tile; alllUUul U[ $:
for attorneys fees in preoarinf and pre."ntin~ .aid
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JOHN T, LEWIS and
CLAUDIA R. GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v,
: NO, 00-4794 CIVIL TERM
WESTHAFER CONSTRUCTION, INC.,
: CNIL ACTION - LAW
Defendant
***********************
WESTHAFER CONSTRUCTION, INC" : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v,
: NO, 99-6418 MLD TERM
JOHN T, LEWIS and
CLAUDIA R, GIRRBACH,
: CNIL ACTION - LAW
Defendants
MOTION OF JOHN T. LEWIS AND CLAUDIA R. GIRRBACH
TO COMPEL ANSWERS TO REQUEST FOR PRODUCTION OF DOCUMENTS
PROPOUNDED UPON WESTHAFER CONSTRUCTION, INC.
AND NOW, come John T, Lewis and Claudia R. Girrbach, by and through their attorneys
Reager & Adler, P,C, and file this motion to compel answers to request for production of
documents propounded upon Westhafer Construction, Inc, and in support thereof aver the
following:
.
1.
On or about February 14, 2000, Westhafer Construction, Inc. (hereinafter
"Westhafer") filed a Complaint to enforce a mechanics' lien claim filed against real property
owned by John T, Lewis and Claudia R. Girrbach, (hereinafter "Lewis and Girrbach") which
Complaint was docketed at No,: 99-6418 in the Court of Common Pleas of Cumberland County,
Pennsylvania,
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2, On or about July 5, 2000, Lewis and Girrbach filed a Complaint against
Westhafer arising from the same subject matter as Westhafer's aforesaid Complaint which
Complaint was docketed at No,: 00-4794 in the Court of Common Pleas of Cumberland County,
Peunsylva]1ia,
3, By Order of this Honorable Court dated September 13, 2000, the aforesaid two (2)
cases were consolidated for all future proceedings including trial.
4, On or about September 6, 2000, Westhafer served upon Lewis and Girrbach
Interrogatories and Requests for Production of Documents, Lewis and Girrbach served timely
answers to all discovery requests,
5, On or about September 8, 2000, Lewis and Girrbach served Westhafer with a
request for production of documents, A true and correct copy of the aforesaid request (with
cover letter) is attached hereto as Exhibit "A",
6, On or about September 7, 2000, Westhafer filed a Petition for Continuance, a true
and correct copy of the aforesaid Petition for Continuance is attached hereto as Exhibit "B",
7, In the Petition for Continuance W esthafer specifically represented to the Court
that it needed additional time to conduct discovery,
8, By Order of this Honorable Court dated September 8, 2000, the Court continued
the case docketed to 99-6418 and scheduled a new non-jury trial on both cases for January 5,
2001.
9, In accordance with the Pennsylvania Rules of Civil Procedure, Westhafer's
responses to the Request for Production of Documents propounded by Lewis and Girrbach on
September 8, 2000, were required to be served upon Lewis and Girrbach on or before the
expiration of thirty (30) days, or October 8, 2000,
2
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10, By way ofa letter dated October 16, 2000, counsel for Lewis and Girrbach
notified Westhafer' s counsel that the deadline for responding to the discovery requests had
passed, A true and correct copy ofthe aforesaid letter is attached hereto as Exhibit "C",
II, By way of a letter dated October 19, 2000, counsel for Lewis and Girrbach
notified Westhafer' s counsel that if answers to the outstanding discovery were not received by
October 30,2000, a motion to compel the answers would be filed, A true and correct copy of the
aforesaid letter is attached hereto as Exhibit "D",
12, Despite assurances by Westhafer, by and through its counsel, that the discovery
responses would be served upon Lewis and Girrbach's counsel on or before October 30, 2000,
the answers to discovery have not been forthcoming,
13, As of the date of this motion no answers to the discovery have been received,
14, As of the date of this motion no objections to the discovery requests have been
received or filed,
15, Inasmuch as this Honorable Court has set a trial date for the consolidated cases for
January 5, 2001, Lewis and Girrbach are prejudiced by Westhafer's failure and refusal to provide
answers to the discovery,
16, Westhafer' s failure and refusal to provide answers to the discovery requests
constitutes a violation of the Pennsylvania Rules of Civil Procedure,
3
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WHEREFORE, John T, Lewis and Claudia R. Girrbach respectfully request this
Honorable Court to enter an Order compelling Westhafer Construction, Inc, to provide
documents responsive to the request for production of documents and to further award Lewis
and Girrbach the cost and attorneys fees in preparing and presenting this Motion to Compel and
to further preclude Westhafer from offering documents at the trial of this case that would have
been responsive to the Request for Production of Documents,
Respectfully submitted,
REAGER LE P,
Date: 1!?- 31- (')0
\
The dore A. A er, Esquire
Attorney I.D, No, 16267
Thomas 0, Williams, Esquire
Attorney I.D, No, 67987
2331 Market Street
Camp Hill, PA 17011-4642
Telephone: (717) 763-1383
Attorneys for John T, Lewis
and Claudia R, Girrbach
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JOHN T. LEWIS and
CLAUDIA R GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
: NO. 00-4794 CML TERM
WESTHAFER CONSTRUCTION, INC"
: CML ACTION - LAW
Defendant
PI,AINTIFFS' REQlJEST FOR PROnIJCTTON OF nOCIJMF.NTS
PROPOlJNT)RD UPON TIm DEFENDANT
Pursuant to Pa, RC,P, 4003.3 and 4009, please furnish, at my expense, to my office within
thirty (30) days, a photostatic copy or like reproduction of the following materials concerning this
action or its subject matter which are in your possession, custody or control and which are not
protected by the attorney/client privilege; or, in the alternative, produce the said matter at said time
to permit inspection and copying thereof,
I. Definitions and Instructions.
As used herein:
1. The term "you" shall be deemed to mean and refer to the Defendant, Westhafer
Construction, Inc,
2, "Document" means and includes any kind of written, typewritten or printed material
whatsoever, including but not limited to papers, agreements, contracts, notes,
memoranda, comments, correspondence, letters, telegrams, statements, invoices,
record books, reports, studies, minutes, records, accounting books, transcriptions and
recordings of which you have any knowledge or information, whether in your
possession or under your control, relating to or pertaining in any way to the subject
matters in connection with which it is used, and includes, without limitation,
originals, all file copies, all other copies, no matter how or by whom prepared, and
all drafts prepared in connection with such writings, whether or not used.
3, "Person" means and includes natural persons, corporations, partnerships, associations
and any other kind of business or legal entity,
4, "IdentifY" or "identity," when used with respect to a person or persons, means to state
the full name of each such person, his or her present or last known address, and his
or her present or last known business affiliation,
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"IdentifY" or "identity," when used with respect to a document or documents, means
to:
a. IdentifY each person or persons who wrote, signed, initialed, dictated, or
otherwise participated in the creation thereof;
b. State the date of preparation;
c. IdentifY the addressee of all persons receiving copies thereof;
d. Describe the type of document;
e. State its present location;
f, IdentifY each person who has custody or control thereof; and
g, If the document was, but is no longer, in your possession or control or that of
your agent or representative, state what disposition was made of the
document.
6, "IdentifY" or "identity," when used with respect to oral communication or oral
communications rneans to:
a, IdentifY each person who participated in the making thereof;
b. State the date of making;
c, State the place of making;
d. IdentifY each person who was present when such oral communication was
made;
e. IdentifY any document or other form of record made regarding the content of
the oral communication;
f: Describe the type of document;
g, State the record's present location; and
h, IdentifY each person who has custody or control of such record,
2
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7, "Refers to" means any document that relates to, mentions, concerns, reflects,
discusses, analyzes, records, reports, or studies a particular subject or some aspect of
the subject, or transmits, accompanies, forwards or is attached to documents relating
to a particular subject; or which describes a particular subject regardless of whether
the proper name, designation or title of the subject is specifically mentioned.
Nonverbal documents relate to a subject if they depict or represent in any fashion the
indicated subject.
8. The following general instructions shall govern the interpretation of responses made
to these requests:
a. Objections. If you contend that a response to a request for production calls,
in whole or in part, for privileged documents, or if you otherwise object to
any part of a request, or contend that any identified document would be
excludible from production and discovery, please specify:
1. the reason for each such objection or ground for exclusion;
11, the identity of each person having knowledge of the factual basis, if
any, on which the privilege or other ground is asserted;
iii. the individual documents alleged to be privileged, the author thereof,
the addressee, the date, and all copy recipients,
b. Scope of Documents. Documents called for in these requests encompass all
variety or character of materials in Defendant's custody and under his control.
These requests admit no exception because documents are classified as
"private," "personal," "sensitive," "proprietary," or the like.
c. Lost or Destroyed Documents. Where documents responsive to these
requests have been lost or destroyed, state: the date, last known location of
the document, the last person in control or custody of the document and the
reason for the document's loss or destruction,
d, Revised, Amended and Superseded Documents. Documents called for herein
include all documents relating to the indicated subject regardless of whether
a particular document has been superseded, amended, revised, rewritten,
redrafted, rejected or rendered obsolete,
e, Marginalia, Notations, Etc, Documents, or copies of documents, otherwise
identical, should be each individually produced if individual documents
contained any communication, notation or recording that does not appear in
another copy or that does not appear in the original.
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f. General Not Qualified by a Specific. In these requests, a gener~l and
categorical request is no way limited to or qualified by specific items that are
provided as examples of the general category. The enumeration of specific
items is for illustrative purposes only and is not considered as a limitation.
DOCUMF.NTS TO RF. PRODUCF.D
1. All documents prepared by and/orrefemid to by Westhafer Construction, Inc. (hereinafter
"Westhafer'') in preparing its bid and/or estimate for the Project which is the subject of this
lawsuit.
2. All project schedules prepared by and/or referred to by Westhafer for the Project which is
the subject of this lawsuit.
3. All subcontracts including change orders with any and all subcontractors for the Project
which is the subject of this lawsuit.
4, All purchase orders for materials ordered by Westhafer for the Project which is the subject
of this lawsuit.
5, All proof of payment and documents of any kind evidencing payment by Westhafer to any
and all suppliers and/or subcontractors for the Project which is the subject of this lawsuit.
6, All invoices and/or applications for payment from subcontractors for the Project which is the
subject of this lawsuit.
7, All invoices and/or bills from material suppliers for the Project which is the subject of this
lawsuit.
8, All documents indicating or evidencing payment from Westhafer to Westhafer's employees
for the Project which is the subject of this lawsuit.
9, All foremen daily reports, superintendent reports or documentation of any kind regarding the
work performed by Westhafer for the Project which is the subject of this lawsuit.
10, All records reflecting time worked by Westhafer employees and subcontractors on the
Project which is the subject of this lawsuit.
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11. All delivery slips/tickets relating to materials delivered to the Project which is the subject of
this lawsuit.
12. To the extent not produced under previous requests, any and all notes, reports, memoranda
or docwnents of any kind whether in electronic form or written form relating to the Project
which is the subject of this lawsuit.
13. To the extent not produced under previous requests, any and all correspondence between
Westhafer and the Plaintiffs relating to the Project which is the subject of this lawsuit.
14. To the extent not previously produced under previous requests, any and all correspondence
between Westhafer and any and all material suppliers or subcontractors relating to the Project
which is the subject of this lawsuit.
15, Any and all time sheets submitted by or on behalf of all employees ofWesthaferworking on
the Project which is the subject of this lawsuit.
16. Any and all photographs or videotapes depicting the Project which is the subject of this
lawsuit.
17, Any and all documents Westhafer claims contain the terms of the agreement between
Westhafer and the Plaintiffs including any and all change orders,
18. All docwnents Westhafer intends to offer or introduce as exhibits at the trial of this case.
Date: September 8, 2000
Theodo e A. Adler, Esquire
Attorney I,D. No, 16267
Thomas 0, Williams, Esquire
Attorney I.D, No. 67987
2331 Market Street
Camp Hill, PA 17011-4642
(717) 763-1383
Attorneys for Plaintiffs
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CRRTTFTCATR OF SRRVTCF,
AN][) NOW, this 8th day of September, 2000, I hereby verify that I have caused a true and
correct copy of the Plaintiffs' Request For Production ofDocUIDents Propounded on Defendant to'
be placed in the U.S, mail, first class, postage prepaid and addressed as follows:
Craig A. DieW, Esquire
Linda A. Clotfelter, Esquire
LAW OFFICES OF CRAIG A, DIEHL
3464 Trindle Road
Camp Hill, PA 17011
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Theodore A. Adler, Esquire
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R...~GER, ADLER & COGNETTI, ~.,
ATTORNEYS AND COUNSELORS AT LAW
2331 MARKET STREET
CAMP HILL, PENNSYLVANIA 17011-4642
717-763-1383
TELEFAX 717-730-7366
WEBSITE: ReagerAdlerPC,com
THEODORE A, ADLER +
DAVID W,REAGER
MARIA p, COGNETTI ++
LINUS E. FENICLE
DEBRA DENISON CANTOR
THOMAS 0, WILLIAMS
SUSAN H, CONFAIR
Writer's E-Mail Address:taadler@epix.net
+ Certifted Civil Trial Specialist
++ Fellow. AmeriCan Academy
of Matrimonial Lawyers
September 8, 2000
Craig A. Diehl, Esquire
LAW OFFICES OF CRAIG A, DIEHL
3464 Trindle Road
Camp Hill, PA 17011
RE: John T. Lewis and Claudia R. Girrbach v, Westhafer Construction, Inc,
Our File No, 99-724
Dear Craig:
Enclosed for service upon you, please find Plaintiffs' Request for Production of Documents
Propounded upon the Defendant in the above-captioned matter.
TAAlcmc
Enclosure
cc: John T. Lewis (w/o encl.)
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JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-4794 CIVIL TERM
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WESTHAFER CONSTRUCTION,
INC.,
: CIVIL ACTION - LAW
Defendant
PETITION FOR CONTINUANCE
To The Honorable Edward E, Guido:
AND NOW COMES Defendant, Westhafer Construction, Inc" by and through its counsel,
Law Offices of Craig A. Diehl, and respectfully presents this petition for continuance of the
hearing scheduled for October 6, 2000, setting forth the following reasons and facts relied upon
to justify a continuance:
1. Plaintiffs filed their Complaint on July 5, 2000 and service was accepted on July
11, 2000.
2. Defendant's Answer was filed on August 9,2000 which contained New Matter and
a Notice to Plead,
3, Plaintiffs' Reply to New Matter was received on August 22,2000,
4, Based on the pleadings, Defendant needs a sufficient amount of time to conduct
discovery.
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5. Defendant served Plaintiffs with written Interrogatories and a Request for
Production of Documents on September 6, 2000, a mere nine (9) business days from the close
of pleadings.
6. Responses to these discovery requests would not be due until the date set for trial.
7, Counsel for Defendant will also be unavailable on October 6, 2000.
8, Defendant's counsel.was selected on September 1, 2000 to represent the Middle
States Tennis Association in a professional tennis tournament in Jackson, Mississippi which runs
from October 4-8, 2000,
9, Counsel for Plaintiff has not had an opportunity to consult with his clients
regarding the requested continuance as of the time of filing said petition,
10" This is the first request for a continuance.
WHEREFORE, Defendant, Westhafer Construction, Inc" respectfully requests that this
Honorable Court grant a continuance of this action.
Respectfully submitted,
LAW OFFICES OF CRAIG A, DIEHL
Dated: .c;', A te.~ bu 6, 1.QCO
I
By: ~, /s.;1.e
Craig . Diehl, EsqUlre
Attorney ID No. 52801
3464 Trindle Road
CampHill,PA 17011
(717) 763-7613
Attorney for Defendant
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JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-4794 CIVIL TERM
WESTHAFER CONSTRUCTION,
INC.,
Defendant
: CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the date hereof, a copy of the foregoing
PETITION FOR CONTINUANCE was served by way of United States mail, first class, postage
prepaid, addressed as follows:
Theodore A. Adler, Esquire
REAGER, ADLER & COGNETTI, p,c.
2331 Market Street
Camp Hill, PA 17011-4642
LAW OFFICES OF CRAIG A. DIEHL
Dated: September l, 2000
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Helen , asmussen, Legal Assistant
3464 Trindle Road
Camp Hill, PAl 70 11
(717) 763-7613
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REAGER & ADLER, PC
ATTORNEYS AND COUNSELORS AT LAW
2331 MARKET STREET
CAMP HILL, PENNSYLVANIA 17011-4642
717-763-1383
TELEFAX 717-73()"7366
WEBSITE: ReagerAdlerPC,com
THEODORE A. ADLER +
DAVID W, REAGER
LINUS E, FENICLE
DEBRA DENISON CANTOR
THOMAS 0, WILlIAMS
SUSAN H. CQ~.,
PETER L.~~.
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+certifiedCiviITriaI'~';:
Writer's E-Mail Address:taadler@epix.net
October 16, 2000
via Telecopier
Craig A. Diehl, Esquire
LAW OFFICES OF CRAIG A. DIEm;,': '
3464 Trind1e Road
Camp Hill, P A 17011
RE: John T, Lewis and Claudia R. Girrbach v. Westhafer Construction, Inc.
Our File No, 99-724
Dear Craig:
The deadline for responding to our discovery requests has passed, Pleas advise me when
I will receive your answer, Also, if you wish to inspect the property, it must be done within the
next three (3) weeks, since the property may be sold by mid November,
Please advise,
Tht
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Very truly
TAAlcmc
cc: John T. Lewis
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Send Confirmation Report
IO: 717 730 7366
Name: REAGER & ADLER pc-
10116100 14:23
Page 1
Pages Mode Status
21 2 EC 96 completed....,..,......,..,........,....,..,....
Usage Phone Number or IO Type
JOb Start time
265 10/16 14:22,:..
Total:
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Pages sent: 2
Pages printed: 0
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To:
Craig A. Diehl, Esquire
Fax:
(717) 763-8293
Re:
Our File No,: 99-724
Pages:
6 including this cover sheet.
Date:
October 16, 2000
Message:
Please call Chris at (717) 763-1383 if there is any problem in transmission.
The information contained in this telefacsimile is transmitted by an attorney. It is privileged and confident'ial,
intended only for the use of the individual or entity named above. If the reader of this message is not the intended
recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly
prohibited. .fthis communication has been received in error, please immediately notify us by telephone, collect
if necessary, and return the original message to us at the above address via the U.S. Postal Service (we will
reimburse postage). Thank you.
From the desk of...
Theodore A. Adler, Esquire
Reager & Adler, PC
2331 Market Street
Camp Hill, P A 17011
717-763-1383
Fax: 717-730-7366
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REAGER & ADLER, PC
ATTORNEYS AND COUNSELORS AT LAW
2331 MARKET STREET
CAMP HILL, PENNSYLVANIA 17011-4642
717-763-1383
TELEFAX 717-730-7366
WEBSITE: ReagerAdlerPC,com
THEODORE A ADLER +
DAVID W, REAGER
LINUS E, FENICLE
DEBRA DENISON CANTOR
THOMAS 0, WILLIAMS
SUSAN H. CONFAlR
PETER L, LEONE
Writer's E-MaU Add....: taadlOf@epix,net
+ Certified Civil Trial S_
October 19,2000
via Telecopier
Craig A. Diehl, Esquire
, LAW OFFICES OF-GRAIG A. DIEHL
3464 Trindle Road
Camp Hill, PA 17011
RE: John T, Lewis and Claudia R. Girrbach v. Westhafer Construction, Inc,
Our File No, 99-724
Dear Craig:
This will confirm that the Lewis/Girrbachs have an agreement to sell the captioned
property, Because of the mechanics' lien that has been attached to the property, we have agreed
to escrow an amount equal to the lien from the proceeds of the sale. In exchange, your client will
agree to release the property from the lien, The funds will be placed in an interest bearing
escrow account and will be released at the conclusion of the litigation, I will forward to you a
proposed escrow agreement and release oflien within the next week,
As to the outstanding discovery, please advise Mr. Westhafer that if! do not receive his
answers by October 30, 1000, we will have no choice but to seek an order from the court
compelling the answers.
Thank you,
TAAlcmc
cc: John T, Lewis
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Name: REAGER & ADLER PC-
Send Confirmation Report
1D: 717 730 7366
10/19/00 11 :39
Page 1
Job Start time Usage Phone Number or 10 Type Pages Mode S1;atus
347 10/19 11 :38,.., 0'50. 7638293,..""",.."..""",.. , Send....,......, 2/ 2 EC 96 Compl et ed,..",..""..,.", ....................
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To:
Craig A. Diehl, Esquire
Fax:
(717) 763-8293
Re:
Our File No.: 99-724
Pages:
;2, including this cover sheet.
Date:
OctOber 19,2000
Message:
Please call Chris at (717) 763.1383 ifthere is any problem in transmission.
The information contalned in this telefacsimile is transmitted by an attorney. It is privileged and confidential,
intended only for the use of the individual or entity named above. If the reader of this message is not the intended
recipient, you are hereby notlfied that any dissemination, distribution or copying of this communication is strictly
prohibited. ~f this communication has been received in error, please immediately notify us by telephone, collect
if necessary, and return the original message to us at the above address via the U.S. Postal Service (we will
reimburse postage). Thank you.
From the desk of...
Theodore A. Adler, Esquire
Reager & Adler, PC
2331 Market Street
Camp Hill, PA 17011
717-763-1383
Fax: 717-730-7366
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CERTIFICATE OF SERVICE
AND NOW, this 31" day of October, 2000, 1 hereby verifY that I have caused a true and
correct copy ofthe foregoing document to be placed in the u.s, mail, first class, postage prepaid and
addressed as follows:
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WESTHAFER CONSTRUCTION,
INC. ,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
plaintiff
V.
JOHN T, LEWIS and
CLAUDIA R. GIRRBACK,
Defendants
CIVIL ACTION - LAW
NO, 99-6418 CIVIL TERM
IN RE: PRETRIAL CONFERENCE
A pretrial conference was held on Monday, June 26,
2000, before the Honorable Edward E. Guido, Judge. Present
for the Plaintiff was Craig A. Diehl, Esquire, and present
for the Defendants was Theodore A. Adler, Esquire,
The parties have indicated that this trial will
take at least one and one half days. Therefore, we are
continuing the matter from August 21, 2000, at 10:15 a.m, to
October 6, 2000, at 9:30 a.m. We are also allowing the
morning of October 9, 2000, to complete testimony in this
mat'ter.
This action is a Mechanic's Lien action to which
the Defendants have interposed a defense. The parties have
agreed that Defendants will file their Breach of Contract
action within ten business days of today's date, The
parties will then take steps to consolidate these matters
for trial, if possible. In the alternative, the parties
will attempt to make arrangements for escrow or bonding to
make the Mechanic's Lien procedure moot. In any event, it
is the intention of the parties and the Court to try all
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claims at one time. The parties are to keep the Court
apprised of their progress in that regard.
All exhibits shall be marked prior to trial and
shared with the other party two weeks prior to trial. Any
objections to the admissibility of any exhibits shall be set
forth in a motion in limine as hereinafter set forth.
Any motions in limine, with supporting authority,
shall be filed by close of business on Tuesday, October 3,
2000. Any responses thereto, with supporting authority,
shall be filed at the commencement of trial.
Edward E. Guido, J.
Craig A, Diehl, Esquire
For the plaintiff
Theodore A. Adler, Esquire
For the Defendant
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WESTHAFER CONSTRUCTION, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
JOHN T. LEWIS and
CLAUDIA R. GIRRBACK,
Defendants
NO, 99-6418 MLD TERM
CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this 14TH day of JUNE, 2000, a pretrial conference
in the above-captioned matter is SCHEDULED for Monday. June 26,
2000. at 10:00 a.m. in Chambers of the undersigned judge,
Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial
memorandum shall be submitted by counsel in accordance with
C.C.R.P. 212-4, at least five (5) days prior to the pretrial
conference.
TRIAL in the matter will be held in Courtroom # 5 on Monday,
August 21. 2000. at 10:15 a.m.
Edward E. Guido, J.
cc: Craig A. Diehl, Esquire
Theodore A. Adler, Esquire
Assistant Court Administrator TarynDixon
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JOHN T, LEWIS and
CLAUDIA R, GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL V ANlA
Plaintiffs
v,
: NO, 00-4794 CNIL TERM
WESTHAFER CONSTRUCTION, INC"
: CNIL ACTION - LAW
Defendant
CERTIFICA TE OF SERVICE
AND NOW, this 19th day of December, 2000, I hereby verify that I have caused a true
and correct copy ofthe Plaintiffs' Supplemental Answers to Defendant's First Set of
Interrogatories to be placed in the U,S, mail, fIrst class, postage prepaid and addressed as
follows:
Craig A. Diehl, Esquire
Linda A, Clotfelter, Esquire
LAW OFFICES OF CRAIG A, DIEHL
3464 Trindle Road
Camp Hill, P A 17011
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JOHNT. LEWIS and
CLAUDIA R. GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL V ANlA
Plaintiffs
v,
~ NO, 00-4794 CIVIL TERM /'
WESTHAFER CONSTRUCTION, INC"
: C1VIL ACTION - LAW
Defendant
***********************
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WESTHAFER CONSTRUCTION, INC" : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL V ANlA
Plaintiff
v,
: NO, 99-6418 MLD TERM
JOHNT, LEWIS and
CLAUDIA R, GlRRBACH,
: C1VIL ACTION - LAW
Defendants
ORDER
AND NOW, this day of ,200_, upon consideration of the
Motion of John T, Lewis and Claudia R. Girrbach to compel answers to request for production of
documents and interrogatories propounded upon Westhafer Construction, Inc" it is hereby
ORDERED that Westhafer Construction, Inc, shall serve upon Lewis and Girrbach's counsel
documents responsive to the request for production of documents within days of the date of
this Order. It is further ORDERED that if the documents are not served upon counsel within
days, Westhafer will be precluded from offering documents at the trial of this case which
would have: been responsive to the request for production of documents and/or interrogatories.
It is further ORDERED that Westhafer Construction, Inc" shall pay to Lewis and Girrbach
the amount of $ for attorneys fees in preparing and presenting said motion,
By the Court,
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JOHN 1. LEWIS and
CLAUDIA R. GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v,
: NO, 00-4794 CNIL TERM
WESTHAFER CONSTRUCTION, INe.,
: CIVIL ACTION - LAW
Defendant
***********************
WESTHAFER CONSTRUCTION, INC" : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v,
: NO, 99-6418 MLD TERM
-~.-
JOHN T, LEWIS and
CLAUDIA R. GIRRBACH,
: CNIL ACTION - LAW
Defendants
RULE
AND NO{\", this '51- day of
(y,'~ref
, 2000, rule is issued upon Westhafer
Construction, 1nc, to show cause why the Motion of John T, Lewis and Claudia R. Girrbach to
Compel Answers to Request for Production of Documents and Interrogatories Propounded upon
Westhafer Construction, Inc, and Request for Expedited Determination of Motion, should not be
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granted, Rule returnable within Jii~'e (S)-days ofthe date ofthis Order.
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BY THE COURT:
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JOHNT, LEWIS and
CLAUDIA R, GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v,
: NO, 00-4794 CIVIL TERM
WESTHAFER CONSTRUCTION, INC.,
: CIVIL ACTION - LAW
Defendant
***********************
WESTHAFER CONSTRUCTION, INC" : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v,
: NO, 99-6418 MLD TERM
JOHN T, LEWIS and
CLAUDIA R. GIRRBACH,
: CIVIL ACTION - LAW
Defendants
MOTION OF JOHN T. LEWIS AND CLAUDIA R. GIRRBACH
TO COMPEL ANSWERS TO REQUEST FOR PRODUCTION OF
DOCUMENTS AND INTERROGATORIES
PROPOUNDED UPON WESTHAFER CONSTRUCTION, INC.
AND REQUEST FOR EXPEDITED DETERMINATION OF MOTION
AND NOW, come John T, Lewis and Claudia R. Girrbach, by and through their attorneys
Reager & Adler, P ,C, and file this motion to compel answers to request for production of
documents propqunded upon Westhafer Construction, Inc. and in support thereof aver the
following:
1. On or about February 14,2000, Westhafer Construction, Inc, (hereinafter
"Westhafer") filed a Complaint to enforce a mechanics' lien claim filed against real property
owned by John T. Lewis and Claudia R, Girrbach, (hereinafter "Lewis and Girrbach") which
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Complaint was docketed at No,: 99-6418 in the Court of Common Pleas of Cumberland County,
Pennsylvania,
2, On or about July 5, 2000, Lewis and Girrbach filed a Complaint against
Westhafer arising from the same subject matter as Westhafer's aforesaid Complaint which
Complaint was docketed at No,; 00-4794 in the Court of Common Pleas of Cumberland County,
Pennsylvania,
3, By Order of this Honorable Court dated September 13, 2000, the aforesaid two (2)
cases were consolidated for all future proceedings including trial.
4, On or about September 6, 2000, Westhafer served upon Lewis and Girrbach
Interrogatories and Requests for Production of Documents, Lewis and Girrbach served timely
answers to all discovery requests,
5, On or about September 8, 2000, Lewis and Girrbach served Westhaferwith a
request for production of documents, A true and correct copy ofthe aforesaid request (with
cover letter) is attached hereto as Exhibit "A",
6, On or about September 7, 2000, Westhafer filed a Petition for Continuance, a true
and correct copy of the aforesaid Petition for Continuance is attached hereto as Exhibit "B",
7, In the Petition for Continuance W esthafer specifically represented to the Court
that it needed additional time to conduct discovery,
8, By Order of this Honorable Court dated September 8, 2000, the Court continued
the case docketed to 99-6418 and scheduled a new non-jury trial on both cases for January 5,
2001.
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9, On Friday, October 27,2000, counsel for both parties and three (3) ofWesthafer's
employees met at the Lewis Property and walked through the property, During the walk through
the Westhafer employees took photographs and notes,
10, Under the Pennsylvania Rules of Civil Procedure Lewis and Girrbach's Request
for Production of Documents served upon Westhafer on or about September 8, 2000, which
requests included specific requests for notes and photographs, is continuing in nature and that all
subsequently obtained documents subject to the requests must be provided without a further
request.
11, By way ofa letter dated November 6,2000, from Lewis and Girrbach's attorney
to Westhafer's attorney, Lewis and Girrbach requested the notes and photographs, A true and
correct copy oft1le aforesaid letter is attached hereto as Exhibit "c",
12" As ofthe date of this motion Westhafer has failed and refused to provide the
requested notes and photographs,
13., As of the date of this motion no objections to the continuing discovery requests
for notes and photographs have been received or filed,
14" Inasmuch as this Honorable Court has set a trial date for the consolidated cases for
January 5, 2001, Lewis and Girrbach are prejudiced by Westhafer's failure and refusal to provide
answers to the discovery,
15" Westhafer's failure and refusal to provide the requested notes and photographs
constitutes a violittion of the Peunsylvania Rules of Civil Procedure,
16" On or about, November 10, 2000, Lewis and Girrbach served Westhaferwith
Interrogatories, A true and correct copy of the Interrogatories are attached hereto as Exhibit "D",
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17, As of the date of this Motion, W esthafer has failed to provide answers to the
Interrogatories, ,
18, As of the date of this Motion, no objections to the Interrogatories have been
received or filed,
19, W esthafer' s failure and Irefusal to provide answers to the Interrogatories as set
forth herein above constitutes a violation ofthe Pennsylvania Rules of Civil Procedure,
WHEREFORE, John T, Lewis and Claudia R. Girrbach respectfully request this
Honorable Court to make an expedited determination of this Motion and to enter an Order
compelling Westhafer Construction, Inc, to provide documents responsive to the request for
production of documents (as continuing) and Interrogatories and to further award Lewis and
Girrbach the cost and attorneys fees in preparing and presenting this Motion to Compel and to
further preclude Westhafer from offering documents at the trial ofthis case that would have been
responsive to the Request for Production of Documents,
Date: JP- /3 -tJo
Respectfully submitted,
REA(~t, ,0
Theod6re A. Adler, Esquire
Attorney I.D, No, 16267
Thomas 0, Williams, Esquire
Attorney I.D, No, 67987
2331 Market Street
Camp Hill, PA 17011-4642
Telephone: (717) 763-1383
Attorneys for John T, Lewis
and Claudia R. Girrbach
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JOHN T, LEWIS and
CLAUDIA R, GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v,
: NO. 00-4794 CIVIL TERM
WESTHAFER CONSTRUCTION, INC.,
: CIVIL ACTION - LAW
Defendant
PLAINTIFFS' REQUEST FOR PRODUC:TTON OF DOC:TJMENTS
PROPOUNDED UPON THE DEFENDANT
Pursuant to Pa. RC.P. 4003.3 and 4009, please furnish, at my expense, to my office within
thirty (30) days, a photostatic copy or like reproduction of the following materials concerning this
action or its subject matter which are in your possession, custody or control and which are not
protected by the attorney/client privilege; or, in the alternative, produce the said matter at said time
to permit inspection and copying thereof.
I. Definitions and Instructions.
As used herein:
1. The term "you" shall be deemed to mean and refer to the Defendant, Westhafer
Construction, Inc.
2. "Document" means and includes any kind of written, typewritten or printed material
whatsoever, including but not limited to papers, agreements, contracts, notes,
rnemoranda, comments, correspondence, letters, telegrams, statements, invoices,
record books, reports, studies, minutes, records, accounting books, transcriptions and
recordings of which you have any knowledge or information, whether in your
possession or under your control, relating to or pertaining in any way to the subject
matters in connection with which it is used, and includes, without limitation,
originals, all file copies, all other copies, no matter how or by whom prepared, and
all drafts prepared in connection with such writings, whether or not used,
3, "Person" means and includes natural persons, corporations, partnerships, associations
and any other kind of business or legal entity.
4. "Identity" or "identity," when used with respect to a person or persons, means to state
the full name of each such person, his or her present or last known address, and his
or her present or last known business affiliation,
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5, "Identify" or "identity," when used with respect to a document or documents, means
to:
a. Identify each person or persons who wrote, signed, initialed, dictated, or
otherwise participated in the creation thereof;
b, State the date of preparation;
c. Identify the addressee of all persons receiving copies thereof;
d, Describe the type of document;
e. State its present location;
f, Identify each person who has custody or control thereof; and
g, If the document was, but is no longer, in your possession or control or that of
your agent or representative, state what disposition was made of the
document.
6, "Identify" or "identity," when used with respect to oral communication or oral
communications means to:
a. Identify each person who participated in the making thereof;
b, State the date of making;
c, State the place of making;
d. Identify each person who was present when such oral communication was
made;
e. Identify any document or other form of record made regarding the content of
the oral communication;
f. Describe the type of document;
g. State the record's present location; and
h, Identify each person who has custody or control of such record,
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7, "Refers to" means any document that relates to, mentions, concerns, reflects,
discusses, analyzes, records, reports, or studies a particular subject or some aspect of
the subject, or transmits, accompanies, forwards or is attached to documents relating
to a particular subject; or which describes a particular subject regardless of whether
the proper name, designation or title of the subject is specifically mentioned.
Nonverbal documents relate to a subject if they depict or represent in any fashion the
indicated subject.
8, The following general instructions shall govern the interpretation of responses made
to these requests:
a. Objections. If you contend that a response to a request for production calls,
in whole or in part, for privileged documents, or if you otherwise object to
any part of a request, or contend that any identified document would be
excludible from production and discovery, please specify:
1. the reason for each such objection or ground for exclusion;
11, the identity of each person having knowledge of the factual basis, if
any, on which the privilege or other ground is asserted;
lll. the individual documents alleged to be privileged, the author thereof,
the addressee, the date, and all copy recipients,
b, Scope of Documents, Documents called for in these requests encompass all
variety or character of materials in Defendant's custody and under his control.
These requests admit no exception because documents are classified as
"private," "personal," "sensitive," "proprietary," or the like,
c. Lost or Destroyed Documents. Where documents responsive to these
requests have been lost or destroyed, state: the date, last known location of
the document, the last person in control or custody of the document and the
reason for the document's loss or destruction,
d. Revised, Amended and Superseded Documents, Documents called for herein
include all documents relating to the indicated subject regardless of whether
a particular document has been superseded, amended, revised, rewritten,
redrafted, rejected or rendered obsolete,
e. Marginalia, Notations, Etc. Documents, or copies of documents, otherwise
identical, should be each individually produced if individual documents
contained any communication, notation or recording that does not appear in
another copy or that does not appear in the original.
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f. General Not Qualified by a Specific. In these requests, a general and
categorical request is no way limited to or qualified by specific items that are
provided as examples of the general category. The enumeration of specific
items is for illustrative purposes only and is not considered as a limitation,
DOCUMF.NTS TO BE PRODUCED
1, All documents prepared by and/or referred to by Westhafer Construction, Inc. (hereinafter
"Westhafer') in preparing its bid and/or estimate for the Project which is the subject of this
lawsuit.
2. All project schedules prepared by and/or referred to by Westhafer for the Project which is
the subject of this lawsuit.
3, All subcontracts including change orders with any and all subcontractors for the Project
which is the subject of this lawsuit.
4, All purchase orders for materials ordered by Westhafer for the Project which is the subject
of this lawsuit.
5, All proof of payment and documents of any kind evidencing payment by Westhafer to any
and all suppliers and/or subcontractors for the Project which is the subject of this lawsuit.
6, All invoices and/or applications for payment from subcontractors for the Project which is the
subject of this lawsuit,
7. All invoices and/or bills from material suppliers for the Project which is the subject of this
lawsuit.
8. All documents indicating or evidencing payment from Westhafer to Westhafer' s employees
for the Project which is the subject of this lawsuit.
9, All foremen daily reports, superintendent reports or documentation of any kind regarding the
work performed by Westhafer for the Project which is the subject of this lawsuit.
10. All records reflecting time worked by Westhafer employees and subcontractors on the
Project which is the subject of this lawsuit.
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11. All delivery slips/tickets relating to materials delivered to the Proj~ct which is the subject of
this lawsuit.
12, To the extent not produced under previous requests, any and all notes, reports, memoranda
or docwnents of any kind whether in electronic form or written form relating to the Project
which is the subject of this lawsuit.
13. To the extent not produced under previous requests, any and all correspondence between
Westhafer and the Plaintiffs relating to the Project which is the subject of this lawsuit.
14. To the extent not previously pro~uced under previous requests, any and all correspondence
between Westhafer and any and all material suppliers or subcontractors relating to the Project
which is the subject of this lawsUit.
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15. Any and all time sheets submitted by or on behalf of all employees ofWesthafer working on
the Project which is the subject ofthis lawsuit.
16, Any and 'all photographs or videotapes depicting the Project which is the subject of this
lawsuit.
17, Any and all docwnents Westhafer claims contain the terms of the agreement between
Westhafer and the Plaintiffs including any and all change orders,
18. All docwnents Westhafer intends to offer or introduce as exhibits at the trial of this case.
Date: September 8, 2000
Respectfully sub . tted,
/ :,/~COGNETTI,P.C.
I{JY
Theodo e A. Adler, Esquire
Attorney I.D. No. 16267
Thomas 0, Williams, Esquire
Attorney I,D. No. 67987
2331 Market Street
Camp Hill, PA 17011-4642
(717) 763-1383
Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE
AND NOW, this 8th day of September, 2000, I hereby verify that I have caused a true and
correct copy of the Plaintiffs' Request For Production of Documents Propounded on Defendant to
be placed in the U,S. mail, first class, postage prepaid and addressed as follows:
Craig A. Diehl, Esquire
Linda A. Clotfelter, Esquire
LAW OFFICES OF CRAIG A. DIEHL
3464 Trindle Road
Camp Hill, PA 17011
Theodore A. Adler, Esquire
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SEP 0 7 2000rfJ
JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-4794 CIVIL TERM
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WESTHAFER CONSTRUCTION,
INC.,
: CIVIL ACTION - LAW
Defendant
PETITION FOR CONTINUANCE
To The Honorable Edward E. Guido:
AND NOW COMES Defendant, Westhafer Construction, Inc" by and through its counsel,
Law Offices of Craig A. Diehl, and respectfully presents this petition for continuance of the
hearing scheduled for October 6, 2000, setting forth the following reasons and facts relied upon
to justify a continuance:
1. Plaintiffs filed their Complaint on July 5, 2000 and service was accepted on July
11,2000.
2, Defendant's Answer was filed on August 9, 2000 which contained New Matter and
a Notice to Plead,
3. Plaintiffs' Reply to New Matter was received on August 22, 2000,
4, Based on the pleadings, Defendant needs a sufficient amount of time to conduct
dis90very,
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5. Defendant served Plaintiffs with written Interrogatories and a Request for
Production of Documents on September 6, 2000, a mere nine (9) business days from the close
of pleadings,
6. Responses to these discovery requests would not be due until the date set for trial.
7. Counsel for Defendant will also be unavailable on October 6, 2000,
8, Defendant's counsel was selected on September 1, 2000 to represent the Middle
States Tennis Association in a professional tennis toumajl1ent in Jackson, Mississippi which runs
from October 4-8, 2000,
9, Counsel for Plaintiff has not had an opportunity to consult with his clients
regarding the requested continuance as of the time of filing said petition.
10. This is the first request for a continuance,
WHEREFORE, Defendant, Westhafer Construction, Inc" respectfully requests that this
Honorable Court grant a continuance of this action.
Respectfully submitted,
LAW OFFICES OF CRAIG A. DIEHL
Dated: .c;', A tt-t<4 Au 6, l.g00
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By: ~a, 1r:1J..
Craig ,Diehl, Esquire
Attorney ID No, 52801
3464 Trindle Road
Camp Hill, PA 17011
(717) 763-7613
Attorney for Defendant
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JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-4794 CIVIL TERM
WESTHAFER CONSTRUCTION,
INC.,
: CIVIL ACTION - LAW
Defendant
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the date hereof, a copy of the foregoing
PETITION FOR CONTINUANCE was served by way of United States mail, first class, postage
prepaid, addressed as follows:
Theodore A. Adler, Esquire
REAGER, ADLER & COGNETTI, P.C.
2331 Market Street
Camp Hill, PA 17011-4642
LAW OFFICES OF CRAIG A, DIEHL
Dated: September l, 2000
Helen smussen, Legal Assistant
3464 Trindle Road
Camp Hill, PAl 70 11
(717) 763-7613
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REAGER & ADLER, PC
ATTORNEYS AND COUNSELORS AT LAW
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2331 MARKET STREET
CAMP Hill. PENNSYLVANIA 17011-4642
717-763-1383
TElEFAX 717-730-7366
WEBSITE: ReagerAdlerPC,com
THEODORE /Ie ADLER +
DAVID W, REAGER
llNUS E, FENICLE
DEBRA DENISON CANTOR
THOMAS 0, WilliAMS
SUSAN H, CONFAlR
PETER L. lEONE
Writer's E.Mail Address: tornwill@epix.net
+ Certified Civil Trial Specialist
November 6, 2000
via Telecopier & First Class Mail
Craig A. Diehl, Esquire
LAW OFFICES OF CRAIG A. DIEHL
3464 Trindle Road
Camp Hill, P A 17011
RE: John T. Lewis and Claudia R, Girrbach v, Westhafer Construction, Inc,
Docket No, 00-4794 Civil Term
Westhafer Construction, Inc, v. John T. Lewis and Claudia R. Girrbach
Docket No.: 99-6418 MLD Term
Our File No,: 99-724
Dear Craig:
As you will recall when I met with you and your clients at our client's house on Friday,
October 27, 2000, representatives frorn your client took photographs and notes during the walk
through, It is our contention that all of these documents and photographs are discoverable and we
hereby request that the same be produced to our office. We further believe that it is not necessary
to serve an additional request for production of documents inasmuch as our previous request is a
continuing request under the Rules of Civil Procedure. You will note that Item No, 12 under our
original request for production of documents sets forth a request for any and all notes, reports,
memoranda, or documents of any kind relating to the project. In addition, Item No, 16 under the
original request for production of documents requests photographs or video tapes depicting the
project. Please let me know when the requested items will be produced.
Should you have any questions regarding this matter, please do not hesitate to call me.
Very truly yours, _ /"
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Thomas 6. Williams
TOW/cmc
cc: John T. Lewis
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JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiffs
v.
: NO. 00-4794 CIVIL TERM
WESTHAFER CONSTRUCTION, INC"
: CIVIL ACTION - LAW
Defendant
***********************
WESTHAFER CONSTRUCTION, INC., : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v,
: NO. 99-6418 MLD TERM
JOHNT, LEWIS and
CLAUDIA R, GIRRBACH,
: CIVIL ACTION - LAW
Defendants
INTERROGATORIES OF JOHN T. LEWIS AND
CLAUDIA R. GIRRBACH PROPOUNDED UPON
WESTHAFER CONSTRUCTION, INC.
I. INSTRUC.TIONS
You are directed to submit written answers under oath to each of the following questions,
pursuant to Pa. R.C,P. 4005 and 4009. You must make reasonable efforts to obtain answers to
any question as to which information may be available to you. If you gain information at some
later time which causes you to know that your answers were incorrect when made of have
become incorrect, you must supplement the answers you give in response to these questions, as
provided in Pa. R.C.P. 4006, If you gain information at some later time respecting the identify of
persons about whom a question is asked, you must supplement the answers you give in response
to these questions, as provided in Pa. RC.P, 4006.
Within thirty (30) days, you must return the signed original of these interrogatories to
counsel for Lewis and Girrbach,
In answering these questions, assume that all words used have their ordinary meanings in
normal English usage, except as provided below or where contest requires other interpretation.
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II, DEFINITIONS
"Identify", when used in respect of a person, means to state that person's name, address,
telephone number, job classification and such other information as would enable counsel for
Lewis and Girrbach to locate the person, interview him or her, or serve a subpoena upon him or
her, When used in respect of a document, the date ofits making or execution, the identity of the
person or persons who made or executed it, and the particular part, paragraph, or other
subdivision there of which is particularly relevant to the question; also state the place where it is
kept and identify the person in whose custody it may be found, with such specificity as will
enable counsel for Lewis and Girrbach to obtain the document through the use of a subpoena.
When used in respect of a communication, it means to identify the parties to the communication
that means of communication, and the date and time thereof.
"You" or "Your" means W esthafer Construction, Inc,
"Person" means any natural or juridical person, group of persons, or association,
"Communication" means any transmission or exchange of information or meaning
between two or more persons in any form,
"D@cument" means any writing, recording or other material substance having on it a
representation of some information, whether in the form of magnetic impulses, printing, or any
other medium in which information may be preserved,
III, SPEC} A I. INSTRIJCTTONS
1. If you do not answer an interrogatory, in whole or in part, because ofa claim or
privilege, set forth the privilege claimed, identify the facts upon which you rely to support the
claim of privilege; and identify all documents for which such privilege is claimed. In particular,
if you refuse to identify a communication because of a claim of the attorney/client privilege,
identify the speaker or author of the communication the capacity in which the speaker or author
was acting when he made the communication; the recipient of the communication, any persons
present when the communication was made, and the subject or topics discussed in the
communication.
2. Unless otherwise specified, each interrogatory requires a continuing answer. Each
separate part of each interrogatory shall be separately answered,
3, Along with the answer to each numbered interrogatory, identify each person who
participated in or supplied information with respect to the preparation of the response to such
interrogatory, specifying whether each of such persons supplied relevant information,
participated in the preparation of the response, or both, If the response to any interrogatory
contains information supplied by more than one person, specify the particular information
supplied by each such person, State whether he/she had first-hand information as to the matters
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contained in your answers, and if so, the manner in which he acquired such information, or if not,
the basis for his participation or involvement.
4, As specified by the Pennsylvania Rules of Civil Procedure, you are required
seasonably to supplement or amend your responses to these interrogatories based upon any and
all information obtained after filing such responses.
IV, SPRCIAT. INSTRUC.TION AS TO ORAl, COMMlJNJC.ATTONS ANn WRITTRN
COMMIJNICA TJONS
1. With respect to any interrogatory in which reference is made to this special
instruction, set forth with regard to each oral communication the following:
A. The name, company or other affiliation, title or other identifying feature of
the individual who made the oral communication.
B, State the name(s) of each individual to whom such oral communication
was made, including such description of those individuals as to enable
counsel for Lewis and Girrbach to identify those individuals as to their
affiliation, title or responsibility.
C. State the date upon which such oral communication was made.
D, State the place where such oral communication was made.
E. State the name and identification of each individual who heard the oral
communication if different or in addition to those individuals to whom
such oral communication was made,
F. State in detail the nature of the words communicated during such oral
communication repeating the actual words used to the extent possible and,
when not possible, paraphrasing those words.
G, State if any individual to whom such oral communication was made, made
any statements in response to said communication, and if so, identify such
responses in sufficient detail by quoting the precise words used or by
otherwise phrasing those words,
H, State if said oral communication(s) was/were ever memorialized in any
document or set forth a copy of same,
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I. If response to any interrogatory refers to a written communication, set
forth the following:
(a) a copy of such written communication; or
(b) a detailed identification of such written document, including at
least the following:
(i) the date of the document;
(ii) the name of the party who wrote the document;
(iii) the name of the party to whom such documents were sent
and the date upon which such documents were sent;
(iv) the date upon which such document was received by the
recipient; if known;
(v) a full description of the contents ofthe document;
(vi) if any response to said document was received and, if so,
identify said response in sufficient detail so as to include
the same information indicated in the preceding subparts of
this instruction.
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INTERROGATORIES
1. Identify each expert you intend to call as a witness at the trial of this matter, and
for each expert state:
(a) The subject matter about which the expert is expected to testify; and
(b) The substance of the facts and opinions to which the expert is expected to testify
and a summary of the grounds for each opinion. (You may file as your answer to
this interrogatory the report of the expert or have the interrogatory answered by
your expert.)
ANSWER:
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2. Identify each person you intend to call as a non-expert witness at the trial of this
case, and for each person identified, state your relationship with the witness and the substance of
the facts to which the witness is expected to testify.
ANSWER:
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3. State the subject about which each witness listed on the document attached hereto
identified as Exhibit "A" will testify.
ANSWER:
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Dated: November 10, 2000
By:
Theo ore A. Adler, Esquire
Attorney I.D. No. 16267
2331 Market Street
Camp Hill, PA 17011-4642
Telephone: (717) 763-1383
Attorneys for Lewis and Girrbach
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Witnesses
Sam Turpin
Brian Matter
Dennis Mucholland -
George Shickley
Dick Price
Barry Chriss
Tony Miller
Don McGowan
AI Buerk
Mr. Wensler
Mike Williman
Dallas Barton
Flash Electric
Mateer Cabnetry
Flooring Contractor
Alside ~upply
PNC Bank Loan Officer
Rite Aid Corporation
Rite Aid Corporation
PNC Bank
Buerks Painting & Remodeling
PNC Bank
M. H. Williman Drafting I Design
Barton Tree Service
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CERTIFICA TE OF SERVICE
AND NOW, this lOth day of November, 2000, I hereby verifY that I have caused a true and
correct copy of the foregoing Interrogatories to be placed in the U.S. mail, first class, postage
prepaid and addressed as follows:
Craig A. Diehl, Esquire
LAW OFFICES OF CRAIG A. DIEHL
3464 Trindle Road
Camp Hill, PA 17011
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CERTIFICATE OF SERVICE
AND NOW, this /3.Jt. day of December, 2000, I hereby verify that I have caused a
true atld correct copy of the foregoing Motion of John T. Lewis and Claudia R. Girrbach to
Compel Answers to Request for Production of Documents and Interrogatories Propounded upon
Westhafer Construction, Inc. and Request for Expedited Determination of Motion to be placed in
the U.S. mail, first class, postage prepaid and addressed as follows:
Craig A. Diehl, Esquire
Linda A. Clotfelter, Esquire
LAW OFFICES OF CRAIG A. DIEHL
3464 Trindle Road
Camp Hill, P A 17011
THOMAS O. WILLIAMS, ESQ RE
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JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiffs
v.
: NO. 00-4794 CIVIL TERM
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WESTHAFER CONSTRUCTION, INe.,
: CIVIL ACTION - LAW
Defendant
***********************
WESTHAFER CONSTRUCTION, INC., : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: NO. 99-6418 MLD TERM
JOHNT. LEWIS and
CLAUDIA R. GIRRBACH,
: CIVIL ACTION - LAW
Defendants
MOTION OF JOHN T. LEWIS AND CLAUDIA R. GIRRBACH
TO COMPEL ANSWERS TO REQUEST FOR PRODUCTION OF
DOCUMENTS AND INTERROGATORIES
PROPOUNDED UPON WESTHAFER CONSTRUCTION, INC.
AND REQUEST FOR EXPEDITED DETERMINATION OF MOTION
AND NOW, come John T. Lewis and Claudia R. Girrbach, by and through their attorneys
Reager & Adler, P.C. and file this motion to compel answers to request for production of
documents propounded upon Westhafer Construction, Inc. and in support thereof aver the
following:
1. On or about February 14,2000, Westhafer Construction, Inc. (hereinafter
"Westhafer") filed a Complaint to enforce a mechanics' lien claim filed against real property
owned by John T. Lewis and Claudia R. Girrbach, (hereinafter "Lewis and Girrbach") which
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Complaint was docketed at No.: 99-6418 in the Court of Common Pleas of Cumberland County,
Pennsylvania.
2. On or about July 5, 2000, Lewis and Girrbach filed a Complaint against
Westhafer arising from the same subject matter as Westhafer's aforesaid Complaint which
Complaint was docketed at No.: 00-4794 in the Court of Common Pleas of Cumberland County,
Pennsylvania.
3. By Order of this Honorable Court dated September 13,2000, the aforesaid two (2)
cases were consolidated for all future proceedings including trial.
4. On or about September 6,2000, Westhafer served upon Lewis and Girrbach
Interrogatories and Requests for Production of Documents. Lewis and Girrbach served timely
answers to all discovery requests.
5. On or about September 8, 2000, Lewis and Girrbach served Westhafer with a
request for production of documents. A true and correct copy of the aforesaid request (with
cover letter) is attached hereto as Exhibit "A".
6. On or about September 7,2000, Westhafer filed a Petition for Continuance, a true
and correct copy ofthe aforesaid Petition for Continuance is attached hereto as Exhibit "B".
7. In the Petition for Continuance W esthafer specifically represented to the Court
that it needed additional time to conduct discovery.
8. By Order of this Honorable Court dated September 8, 2000, the Court continued
the case docketed to 99-6418 and scheduled a new non-jury trial on both cases for January 5,
2001.
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9. On Friday, October 27, 2000, counsel for both parties and three (3) ofWesthafer's
employees met at the Lewis Property and walked through the property. During the walk through
the Westhafer employees took photographs and notes.
10. Under the Pennsylvania Rules of Civil Procedure Lewis and Girrbach's Request
for Production of Documents served upon Westhafer on or about September 8, 2000, which
requests included specific requests for notes and photographs, is continuing in nature and that all
subsequently obtained documents subject to the requests must be provided without a further
request.
II. By way ofa letter dated November 6,2000, from Lewis and Girrbach's attorney
to Westhater's attorney, Lewis and Girrbach requested the notes and photographs. A true and
correct copy oftlie aforesaid letter is attached hereto as Exhibit "C".
12. As of the date of this motion Westhafer has failed and refused to provide the
requested notes and photographs.
13. As of the date of this motion no objections to the continuing discovery requests
for notes and photographs have been received or filed.
14. Inasmuch as this Honorable Court has set a trial date for the consolidated cases for
January 5,2001, Lewis and Girrbach are prejudiced by Westhafer's failure and refusal to provide
answers to the discovery.
15. Westhafer's failure and refusal to provide the requested notes and photographs
constitutes a violation ofthe Pennsylvania Rules of Civil Procedure.
16. On or about, November 10, 2000, Lewis and Girrbach served Westhafer with
Interrogatories. A true and correct copy of the Interrogatories are attached hereto as Exhibit "D".
3
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17. As of the date of this Motion, Westhafer has failed to provide answers to the
Interrogatories.
18. As ofthe date of this Motion, no objections to the Interrogatories have been
received or filed.
19. Westhafer's failure and refusal to provide answers to the InterrogatQries as set
forth herein above constitutes a violation of the Pennsylvania Rules of Civil Procedure.
WHEREFORE, John T. Lewis and Claudia R. Girrbach respectfully request this
Honorable Court to make an expedited determination of this Motion and to enter an Order
compelling Westhafer Construction, Inc. to provide documents responsive to the request for
production of documents (as continuing) and Interrogatories and to further award Lewis and
Girrbach the cost and attorneys fees in preparing and presenting this Motion to Compel and to
further preclude Westhafer from offering documents at the trial of this case that would have been
responsive to the Request for Production of Documents.
Date: J;J- /3 -(JCJ
.
Respectfully submitted,
REAGEffi& L .C.
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Theodore A. Adler, Esquire
Attorney LD. No. 16267
Thomas O. Williams, Esquire
Attorney LD. No. 67987
2331 Market Street
Camp Hill, PA 17011-4642
Telephone: (717) 763-1383
Attorneys for John T. Lewis
and Claudia R. Girrbach
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JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
: NO. 00-4794 CML TERM
WESTHAFER CONSTRUCTION, INC.,
: CIVIL ACTION - LAW
Defendant
PI,AINTTFFS' REQJTRST FOR PROmrCTION OF DOel TMF.NTS
PROPOUNmm UPON THE DEFENDANT
Pursuant to Pa. R.C.P. 4003.3 and 4009, please furnish, at my expense, to my office within
thirty (30) days, a photostatic copy or like reproduction of the following materials concerning this
action or its subject matter which are in your possession, custody or control and which are not
protected by the attomey/client privilege; or, in the alternative, produce the said matter at said time
to permit inspection and copying thereof.
I. Definitions and Instructions.
As used herein:
1. The term "you" shall be deemed to mean and refer to the Defendant, Westhafer
Construction, Inc.
2. "Document" means and includes any kind of written, typewritten or printed material
whatsoever, including but not limited to papers, agreements, contracts, notes,
rnemoranda, comments, correspondence, letters, telegrams, statements, invoices,
record books, reports, studies, minutes, records, accounting books, transcriptions and
recordings of which you have any knowledge or information, whether in your
possession or under your control, relating to or pertaining in any way to the subject
matters in connection with which it is used, and includes, without limitation,
originals, all file copies, all other copies, no matter how or by whom prepared, and
all drafts prepared in connection with such writings, whether or not used.
3. "Person" means and includes natural persons, corporations, partnerships, associations
and any other kind of business or legal entity.
4. "IdentifY" or "identity," when used with respect to a person or persons, means to state
the full name of each such person, his or her present or last known address, and his
or her present or last known business affiliation.
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5. "Identify" or "identity," when used with respect to a document or documents, means
to:
a. IdentifY each person or persons who wrote, signed, initialed, dictated, or
otherwise participated in the creation thereof;
b. State the date of preparation;
c. Identify the addressee of all persons receiving copies thereof;
d. Describe the type of document;
e. State its present location;
f. Identify each person who has custody or control thereof; and
g. If the document was, but is no longer, in your possession or control or that of
your agent or representative, state what disposition was made of the
document.
6. "Identify" or "identity," when used with respect to oral communication or oral
communications means to:
a. Identify each person who participated in the making thereof;
b. State the date of making;
c. State the place of making;
d. Identify each person who was present when such oral communication was
made;
e. Identify any document or other form of record made regarding the content of
the oral communication;
f. Describe the type of document;
g. State the record's present location; and
h. Identify each person who has custody or control of such record.
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7. "Refers to" means any document that relates to, mentions, concerns, reflects,
discusses, analyzes, records, reports, or studies a particular subject or some aspect of
the subject, or transmits, accompanies, forwards or is attached to documents relating
to a particular subject; or which describes a particular subject regardless of whether
the proper name, designation or title of the subject is specifically mentioned.
Nonverbal documents relate to a subject if they depict or represent in any fashion the
indicated subject.
8. The following general instructions shall govern the interpretation of responses made
to these requests:
a. Objections. If you contend that a response to a request for production calls,
in whole or in part, for privileged documents, or if you otherwise object to
any part of a request, or contend that any identified document would be
excludible from production and discovery, please specify:
1. the reason for each such objection or ground for exclusion;
ii. the identity of each person having knowledge of the factual basis, if
any, on which the privilege or other ground is asserted;
iii. the individual documents alleged to be privileged, the author thereof,
the addressee, the date, and all copy recipients.
b. Scope of Documents. Documents called for in these requests encompass all
variety or character of materials in Defendant's custody and under his control.
These requests admit no exception because documents are classified as
"private," "personal," "sensitive," "proprietary," or the like.
c. Lost or Destroyed Documents. Where documents responsive to these
requests have been lost or destroyed, state: the date, last known location of
the document, the last person in control or custody of the document and the
reason for the document's loss or destruction.
d. Revised, Amended and Superseded Documents. Documents called for herein
include all documents relating to the indicated subject regardless of whether
a particular document has been superseded, amended, revised, rewritten,
redrafted, rejected or rendered obsolete.
e. Marginalia, Notations, Etc. Documents, or copies of documents, otherwise
identical, should be each individually produced if individual documents
contained any communication, notation or recording that does not appear in
another copy or that does not appear in the original.
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f. General Not Qualified by a Specific. In these requests, a general and
categorical request is no way limited to or qualified by specific items that are
provided as examples of the general category. The enumeration of specific
items is for illustrative purposes only and is not considered as a limitation.
DOCUMF.NTS TO BE PRODUCED
I. All documents prepared by and/or referred to by Westhafer Construction, Inc. (hereinafter
"Westhafer") in preparing its bid and/or estimate for the Project which is the subject of this
lawsuit.
2. All project schedules prepared by and/or referred to by Westhafer for the Project which is
the subject of this lawsuit.
3. All subcontracts including change orders with any and all subcontractors for the Project
which is the subject of this lawsuit.
4. All purchase orders for materials ordered by Westhafer for the Project which is the subject
of this lawsuit.
5. All proof of payment and documents of any kind evidencing payment by Westhafer to any
and all suppliers and/or subcontractors for the Project which is the subject of this lawsuit.
6. All invoices and/or applications for payment from subcontractors for the Project which is the
subject of this lawsuit.
7. All invoices and/or bills from material suppliers for the Project which is the subject of this
lawsuit.
8. All documents indicating or evidencing payment from Westhafer to Westhafer's employees
for the Project which is the subject of this lawsuit.
9. All foremen daily reports, superintendent reports or documentation of any kind regarding the
work performed by Westhafer for the Project which is the subject of this lawsuit.
10. All records reflecting time worked by Westhafer employees and subcontractors on the
Project which is the subject of this lawsuit.
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11. All delivery slips/tickets relating to materials delivered to the Projc;ct which is the subject of
this lawsuit.
12. To the extent not produced under previous requests, any and all notes, reports, memoranda
or documents of any kind whether in electronic form or written form relating to the Project
which is the subject of this lawsuit.
13. To the extent not produced under previous requests, any and all correspondence between
Westhafer and the Plaintiffs relating to the Project which is the subject of this lawsuit.
14. To the extent not previously produced under previous requests, any and all correspondence
between Westhafer and any and all material suppliers or subcontractors relating to the Project
which is the subject of this lawsuit.
IS. Any and all time sheets submitted by or on behalf of all employees ofWesthaferworking on
the Project which is the subject of this lawsuit.
16. Any and'all photographs or videotapes depicting the Project which is the subject of this
lawsuit.
17. Any and all documents Westhafer claims contain the terms of the agreement between
Westhafer and the Plaintiffs including any and all change orders.
18. All documents Westhafer intends to offer or introduce as exhibits at the trial of this case.
Date: September 8, 2000
Theodo e A. Adler, Esquire
AttorneyI.D. No. 16267
Thomas O. Williams, Esquire
Attorney I.D. No. 67987
2331 Market Street
Camp Hill, P A 17011-4642
(717) 763-1383
Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE
AND NOW, this 8th day of September, 2000, I hereby verify that I have caused a true and
correct copy of the Plaintiffs' Request For Production of Documents Propounded on Defendant to
be placed in the U.S. mail, first class, postage prepaid and addressed as follows:
. Craig A. Diehl, Esquire
Linda A. Clotfelter, Esquire
LAW OFFICES OF CRAIG A. DIEHL
3464 Trindle Road
Camp Hill, PA 17011
Theodore A. Adler, Esquire
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JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-4794 CIVIL TERM
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WESTHAFER CONSTRUCTION,
INC.,
: CIVIL ACTION - LAW
Defendant
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PETITION FOR CONTINUANCE
To The Honorable Edward E. Guido:
AND NOW COMES Defendant, Westhafer Construction, Inc., by and through its counsel,
Law Offices of Craig A. Diehl, and respectfully presents this petition for continuance of the
hearing scheduled for October 6, 2000, setting forth the following reasons and facts relied upon
to justify a. continuance:
1. Plaintiffs filed their Complaint on July 5, 2000 and service was accepted on July
II, 2000.
2. Defendant's Answer was filed on August 9,2000 which contained New Matter and
a Notice to Plead.
3. Plaintiffs' Reply to New Matter was received on August 22, 2000.
4. Based on the pleadings, Defendant needs a sufficient amount of time to conduct
discovery.
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5. Defendant served Plaintiffs with written Interrogatories and a Request for
Production of Documents on September 6, 2000, a mere nine (9) business days from the close
of pleadings:
6. Responses to these discovery requests would not be due until the date set for trial.
7. Counsel for Defendant will also be unavailable on October 6, 2000.
8. Defendant's counsel was selected on September I, 2000 to represent the Middle
States Temrls Association in a professional tennis tournament in Jackson, Mississippi which runs
from October 4-8, 2000.
9. Counsel for Plaintiff has not had an opportunity to consult with his clients
regarding the requested continuance as of the time of filing said petition.
10. This is the first request for a continuance.
WHEREFORE, Defendant, Westhafer Construction, Inc., respectfully requests that this
Honorable Court grant a continuance of this action.
Respectfully submitted,
LAW OFFICES OF CRAIG A. DIEHL
Dated: .c;'H tt-Iof bu 6, ~~IJO
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By:
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Craig . Diehl, Esquire
Attorney ID No. 52801
3464 Triudle Road
Camp Hill, PA 17011
(717) 763-7613
Attorney for Defendant
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JOHN T. LEWIS and
CLAUDIA R. GIRRBACH,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-4794 CIVIL TERM
WESTHAFER CONSTRUCTION,
INe.,
: CIVIL ACTION - LAW
Defendant
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the date hereof, a copy of the foregoing
PETITION FOR CONTINUANCE was served by way of United States mail, first class, postage
prepaid, addressed as follows:
Theodore A. Adler, Esquire
REAGER, ADLER & COGNETTI, P.e.
2331 Market Street
Camp Hill, PA 17011-4642
LAW OFFICES OF CRAIG A. DIEHL
Dated: September l, 2000
Helen mussen, Legal Assistant
3464 Trindle Road
Camp Hill, PA 17011
(717) 763-7613
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REAGER & ADLER, PC
ATTORNEYS AND COUNSELORS AT LAW
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2331 MARKET STREET
CAMP HILL, PENNSYLVANIA 17011-4642
717-763-1383
TELEFAX 717-730-7366
WEBSITE: ReagerAdlerPC.com
THEODORE A. ADLER +
OAVID W, REAGER
LINUS E. FENICLE
OEBRA DENISON CANTOR
THOMAS O. WILLIAMS
SUSAN H. CONFAlR
PETER L. LEONE
Writer's E-Mail Address:tomwill@epix.net
+ Certified Civil Trfal Specialist
November 6, 2000
via Telecopier & First Class Mail
Craig A. Diehl, Esquire
LAW OFFICES OF CRAIG A. DIEHL
3464 Trindle Road
Camp Hill, PA 17011
RE: John T. Lewis and Claudia R. Girrbach v. Westhafer Construction, Inc.
Docket No. 00-4794 Civil Term
Westhafer Construction, Inc. v. John T. Lewis and Claudia R. Girrbach
Docket No.: 99-6418 MLD Term
Our File No.: 99-724
Dear Craig:
As you will recall when I met with you and your clients at our client's house on Friday,
October 27, 2000, representatives from your client took photographs and notes during the walk
through. It is our contention that all of these documents and photographs are discoverable and we
hereby request that the same be produced to our office. We further believe that it is not necessary
to serve an additional request for production of documents inasmuch as our previous request is a
continuing request under the Rules of Civil Procedure. You will note that Item No. 12 under our
original request for production of documents sets forth a request for any and all notes, reports,
memoranda, or documents of any kind relating to the project. In addition, Item No. 16 under the
original request for production of documents requests photographs or video tapes depicting the
project. Please let me know when the requested items will be produced.
Should you have any questions regarding this matter, please do not hesitate to call me.
Very truly yours, _ /'
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Thomas O. Williams
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cc: John T. Lewis
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JOHNT. LEWIS and
CLAUDIA R GIRRBACH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiffs
v.
: NO. 00-4794 CIVIL TERM
WESTHAFER CONSTRUCTION, INe.,
: CIVIL ACTION - LAW
Defendant
***********************
WESTHAFER CONSTRUCTION, INC., : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiff
v.
: NO. 99-6418 MLD TERM
JOHNT. LEWIS and
CLAUDIA R. GIRRBACH,
: CIVIL ACTION - LAW
Defendants
INTERROGATORIES OF JOHN T. LEWIS AND
CLAUDIA R. GIRRBACH PROPOUNDED UPON
WESTHAFER CONSTRUCTION, INC.
I. INSTRUCTIONS
You are directed to submit written answers under oath to each of the following questions,
pursuant to Pa. R.C.P. 4005 and 4009. You must make reasonable efforts to obtain answers to
any question as to which information may be available to you. If you gain information at some
later time which causes you to know that your answers were incorrect when made of have
become incorrect, you must supplement the answers you give in response to these questions, as
provided in Pa. RC.P. 4006. If you gain information at some later time respecting the identify of
persons about whom a question is asked, you must supplement the answers you give in response
to these questions, as provided in Pa. RC.P. 4006.
Within thirty (30) days, you must return the signed original of these interrogatories to
counsel for Lewis and Girrbach.
In answering these questions, assume that all words used have their ordinary meanings in
normal English usage, except as provided below or where contest requires other interpretation.
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II. DEFINITIONS
"Identify", when used in respect of a person, means to state that person's name, address,
telephone number, job classification and such other information as would enable counsel for
Lewis and Girrbach to locate the person, interview him or her, or serve a subpoena upon him or
her. When used in respect of a document, the date of its making or execution, the identity of the
person or persons who made or executed it, and the particular part, paragraph, or other
subdivision there of which is particularly relevant to the question; also state the place where it is
kept and identifY the person in whose custody it may be found, with such specificity as will
enable counsel for Lewis and Girrbach to obtain the document through the use of a subpoena.
When used in respect of a communication, it means to identify the parties to the communication
that means of communication, and the date and time thereof.
"You" or "Your" means W esthafer Construction, Inc.
"Person" means any natural or juridical person, group of persons, or association.
"Communication" means any transmission or exchange of information or meaning
between two or more persons in any form.
"Document" means any writing, recording or other material substance having on it a
representation of some information, whether in the form of magnetic impulses, printing, or any
other medium in which information may be preserved.
III. SPECIAL INSTRIJCTIONS
1. If you do not answer an interrogatory, in whole or in part, because ofaclairn or
privilege, set forth the privilege claimed, identify the facts upon which you rely to support the
claim of privilege; and identify all documents for which such privilege is claimed. In particular,
if you refuse to identify a communication because of a claim of the attorney/client privilege,
identify the speaker or author ofthe communication the capacity in which the speaker or author
was acting when he made the communication; the recipient of the communication, any persons
present when the communication was made, and the subject or topics discussed in the
communication.
2. Unless otherwise specified, each interrogatory requires a continuing answer. Each
separate part of each interrogatory shall be separately answered.
3. Along with the answer to each numbered interrogatory, identify each person who
participateq in or supplied information with respect to the preparation of the response to such
interrogatory, specifying whether each of such persons supplied relevant information,
participated in the preparation of the response, or both. If the response to any interrogatory
contains information supplied by more than one person, specify the particular information
supplied by each such person. State whether he/she had first-hand information as to the matters
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contained in your answers, and if so, the manner in which he acquired such information, or if not,
the basis for his participation or involvement.
4. As specified by the Pennsylvania Rules of Civil Procedure, you are required
seasonably to supplement or amend your responses to these interrogatories based upon any and
all information obtained after filing such responses.
IV. SPECIAl, INST~UCTION AS TO ORAL COMMUNICATIONS AND WRITTF.N
COMMUNICATIONS
I. With respect to any interrogatory in which reference is made to this special
instruction, set forth with regard to each oral communication the following:
A. The name, company or other affiliation, title or other identifying feature of
the individual who made the oral communication.
B. State the name(s) of each individual to whom such oral communication
was made, including such description of those individuals as to enable
counsel for Lewis and Girrbach to identify those individuals as to their
affiliation, title or responsibility.
C. State the date upon which such oral communication was made.
D. State the place where such oral communication was made.
E. State the name and identification of each individual who heard the oral
communication if different or in addition to those individuals to whom
such oral communication was made.
F. State in detail the nature of the words communicated during such oral
communication repeating the actual words used to the extent possible and,
when not possible, paraphrasing those words.
G. State if any individual to whom such oral communication was made, rnade
any statements in response to said communication, and if so, identify such
responses in sufficient detail by quoting the precise words used or by
otherwise phrasing those words.
H. State if said oral communication(s) was/were ever memorialized in any
document or set forth a copy of same.
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I. If response to any interrogatory refers to a written communication, set
forth the following:
(a) a copy of such written communication; or
(b) a detailed identification of such written document, including at
least the following:
(i) the date of the document;
(ii) the name of the party who wrote the document;
(iii) the name of the party to whom such documents were sent
and the date upon which such documents were sent;
(iv) the date upon which such document was received by the
recipient; if known;
(v) a full description of the contents of the document;
(vi) if any response to said document was received and, if so,
identify said response in sufficient detail so as to include
the same information indicated in the preceding subparts of
this instruction.
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INTERROGA TORIES
1. Identify each expert you intend to call as a witness at the trial of this matter, and
for each expert state:
(a) The subject matter about which the expert is expected to testify; and
(b) The substance of the facts and opinions to which the expert is expected to testify
and a summary of the grounds for each opinion. (You may file as your answer to
this interrogatory the report of the expert or have the interrogatory answered by
your expert.)
ANSWER:
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2. Identify each person you intend to call as a non-expert witness at the trial of this
case, and for each person identified, state your relationship with the witness and the substance of
the facts to which the witness is expected to testify.
ANSWER:
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3. State the subject about which each witness listed on the document attached hereto
identified as Exhibit "A" will testify.
ANSWER:
Dated: November 10, 2000
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By:
Theo ore A. Adler, Esquire
Attorney I.D. No. 16267
2331 Market Street
Camp Hill, PA 17011-4642
Telephone: (717) 763-1383
Attorneys for Lewis and Girrbach
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EXHIBIT "A"
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. '; .' . "./7i 7; 697-6305;' FAX(7.j 71 697-6.307
J20WestA/'eri Street..lI(1~Ni'licsburg.: PA.170S5
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Witnesses'
Sam Turpin
Brian Matter
Dennis Mucholland -
George Shickley
Dick Price
Barry Chriss '
Tony Miller
Don MoGowan
AI Buerk
Mr. Wensler
Mike Williman
Dallas Barton
Flash Electric
Mateer Cabnetry
Flooring Contractor
Alside Supply
PNC Bank Loan Officer
Rite Aid Corporation
Rite Aid Corporation
PNC Bank
Buerks Painting & Remodeling
PNC Bank
M. H. Williman Drafting I Design
Barton Tree Service
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CERTIFICATE OF SERVICF,
AND NOW, this lOth day of November, 2000, I hereby verifY that I have caused a true and
correct copy of the foregoing Interrogatories to be placed in the U.S. mail, first class, postage
prepaid and addressed as follows:
Craig A. Diehl, Esquire
LAW OFFICES OF CRAIG A. DIEHL
3464 Toodle Road
Camp Hill, PA 17011
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CERTIFTCA TE OF SERVIn:
AND NOW, this /3.J1.. day of December, 2000, I hereby verify that I have caused a
true and correct copy of the foregoing Motion of John T. Lewis and Claudia R. Girrbach to
Compel Answers to Request for Production of Documents and Interrogatories Propounded upon
Westhafer Construction, Inc. and Request for Expedited Determination of Motion to be placed in
the u.s. mail, first class, postage prepaid and addressed as follows:
Craig A. Diehl, Esquire
Linda A. Clotfelter, Esquire
LAW OFFICES OF CRAIG A. DIEHL
3464 Trindle Road
Camp Hill, PA 17011
THOMAS O. WILLIAMS, ESQ
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