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B. Denied. It is specifically denied that Defendant utilized defective siding In
the reconstruction of the porch, that wrong materials were utilized, and the concfete was
not properly installed as alleged by Plaintiff. To the contrary, Defendant performed the
reconstruction of the porch in a professional and workmanlike manner, utilized the
correct materials, and properly installed the siding and concrete. As to Plaintiffs
allegation concerning the replacement of the steps, there was no agreement to replace
the steps.
9. Denied. Paragraph 9 is a legal conclusion to which no responsive
pleading Is required. However, if this Court deems a response necessary, Defendant
denies that it breached the oral contract to reconstruct the porch as alleged by Plaintiff.
To the contrary, at all times relevant hereto Defendant performed in a professional and
workmanlike manner as to the reconstruction of said porch. However, by way of further
answer, the agreement was without consideration, and therefore, is void as a matter of
law.
10. Denied. After reasonable investigation Defendant Is without knowledge as
to the alleged cost of repairing the porch. Therefore, strict proof of same Is demanded
at the time of trial. Moreover, Exhibit B attached to Plaintiffs Amended Complaint
speaks for itself and any characterizations of said document to the contrary are
specifically denied, Defendant at all times relevant hereto performed the reconstruction
3
of the porch in a professional and workmanlike manner and in no way was the
reconstruction defective or improper.
11. Denied, After reasonable investigation Defendant is without knowledge
as to the truth of the alleged costs for removal of concrete and debris, and painting.
Therefore, strict proof of same is demanded at the time of trial. Moreover, it is
specifically denied that Defendant failed to perform the removal of concrete and/or other
debris, or the agreed upon painting at the job site as alleged by Plaintiff. To the
contrary, Defendant at all times relevant hereto performed in a professional and
workmanlike manner and completed the reconstruction of the porch.
12. Denied, After reasonable investigation Defendant is without knowledge
as to the truth of the alleged costs of the alleged repair and completion of the
reconstruction of the porch, Therefore, strict proof of same is demanded at the time of
trial. Moreover, at all times relevant hereto Defendant performed in a professional and
workmanlike manner and completed the reconstruction of the porch,
WHEREFORE, the Defendant, S&A Custom Built Homes, Inc" respectfully
requests this Court dismiss Plaintiffs Amended Complaint and award to Defendant
costs of suit with interest and whatever relief this Court deems appropriate,
4
@ The Ohio Casualty Group of Insurance Companies
CLAIM DEPARTMENT; 2000 Linglo~lown Ad.. SUlle 300, Hatflsburg, Pennsylvonia 17110. Telephone: 7171657.9641
Mailing Address: P.O. Box 69~1. Harrlsburg, PA 17112 FAX: 717J657.3768
WilliAM F. JOHANSEN, Claims Manago,
Glenn O. Cameron, Senior Claims Supervisor _ Unit I
Bruce A McElmurray, Senior Claims Supervisor _ Umt II
May 10, 1996
Darrin & Penny Williams
4 Strawberry Lane
Carlisle, PA 17013
RE: Our File No
Our Insured
Date of Loss:
Subject
HBG 1 GF 96 54 36 30 W
DARRIN & PENNY WILLIAMS
March 14, 1996
COLLAPSED CONCRETE REAR PORCH SLAB
Dear Mr. .It tirs. Williams:
As you are aware, the West American Insurance Company is your homeowners
insurance carrier for the above-referenced matter.
'We have now completed our investigation into the nature and cause of
this loss, which included an oneite inepection of the porch by
structural engineer, William S. Miller, IV., P.E., on March 26, 1996.
In summary, Mr. Miller opined that the rear porch slab at your residence
structurally failed and collapsed under its own weight due to the
improper deSign and construction of the slab. This improper design and
construction included inadequate slab thickness, inadequate slab
reinforcement and lack of proper bearing Support along the rear house
foundation wall. We are enclOSing a copy of Mr. Miller's report for
your review.
Your attention is kindly directed to your HO-003 (4/91) policy, page 6
of 18 under section I-Perils Insured Against, 2.e.(2) which states we do
not insure for loss caused by "latent defect". Additionally, on page 9
of 18, under section I-Exclusions, your policy states that under 2.c. we
do not insure for loss to property caused by faulty, inadequate or
defective deSign, specifications, workmanship, repair, construction.
renovation, remodeling, grading or compaction; or materials used in
repair. construction, renovation or remodeling.
For the above-stated reasons, we must respectfully decline coverage for
this loss.
The OhIO CJsu31ty Insurance Company. \Vest American Insurance Camp.my . American Fire & Casualty Company
The Ohio life Insurance Camp.my . Ohio Security Insurance Company. Ocasco Budget, Inc.
I
w.s. Mll.LER IV, P.E.
CONSULTING STRUCTURAL ENGINEER
3001 PIKE STREF:r
HARJUSBURG. PA 17111
TEL: (nll 5~
FAX: (7111 564-:.02
April 24, 1996
John Lvter
The ohio Casualty Company
P.O. Box 843
Carlisle. PA 17013
Re: Strucmral Inspection of CoUapsed
Concrete Porch Slab
Residence of Darrin & Penny Williams
4 Strawberry Lane
Carlisle, P A
Dear Mr. Lyter:
In acconiau\,;;; wiLt 10w .~q::~:' ! c::irrducted a SttUcturnl insuection at the residence of Darrin and
Penny Williams on March 26. 1996. The purpose of my inspection was to determine the cause and
extent of strUctUral damage to the collapsed rear concrete porch slab, foundation walls. and supported
roof SlI1lcture, and to make general recommendations for repair, as applicable. My inspection was
conducted in the pn:sence of Mrs. Williams, :J.I1d it included detliled visual observations of both the
collapsed rear porch slab and the uncollapsed front porch slab.
GENERAL BUILDING DESCRIPTION AND BACKGROUND INFORMATION-
The Williams residence is a partial one story, partial two story bi.level residence with full basement
under the one story section. and attached front :J.I1d rear porcb structUres. The building has wood
frame roof and floor strUcrores, and wood stud frame exterior walls with a combination of brick veneer
on the front:J.I1d vinyl siding on the remaining elevations. The residence is situated on a relatively level
site with finished exterior grade.}oc:ued approximately 3 feet below the first floor level. The home was
~ortedly constrocted for the Willliuns in 1985 )Jy S&A Homes. :;'
_ The rear porch has overall exterior dimensions of 10 feet deep (front to rear) by 20 fe~t wide. The
porch consistS of a nominal 4 inch concrete structural slab bearing on 8 inch hollow unreinforced
concrete block foundation walls on three sides. The slab is nominally reinforced with twO or three #3
bars in each direction. and it buttS against but is not supported by the rear basement foundation wall of
the house. The porch slab and tops of the supporting foundation walls are located approximately three
feet above finished exterior grade. and they extend downward to footings that are near the level of the
adjacent basement Finished grade within the porch foundation walls is slightly below the surrounding
finished exterior grade. The porch slab and foundation walls serve as supportS and bearing for a pair
of ornamental iron post columns whicb support a gable style porch canopy roof above.
The fron.l;-pQJth;~llS'Overa11 merior dimensions of 5' -0" deep (front to rear) by 24' -O"long. The front
porch slaB is-aIsCi of'noornilla14 inch thickness. :J.I1d it appears to be supported by only the front and
side porc"!{ founaation walls. The slab does not appear to bear on the front basement foundation wall
of the house; boweve~ it could not be positively detellDined whether there was a bearing ledge on the
main founda!iAv.lVi:i1l1l'O promde positive support for the slab. Mrs. Williams indicated that the builder
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Insp. of D. Willi:uns Porcu Slab
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April 24, 1996
had stated thaI the front porch W:J.S construcled in a similar manner to the rear porch. The rront porch
slab and porch foundation walls also serve :J.S be:uing and suPPOrt ror a series ot" ~e orn:unenral
round columns which suPPOrt the porch roof overhang ot" the main gable house root" above.
INSPECTION.
I conducted a detailed visual inspection of the Willi:uns residence on March 26, 1996 10 determine the
~ature and cause of the collapse or the rear porch slab, and 10 detexmine the condition of the similarly
'constructed front porch slab. The 10 fOOl deep by 20 fool long rear porch slab had strucrurally failed
and completely collapse inlO the untilled foundation space below. The slab failed in pure tlexural
lension and shear due 10 the applied forces and bending moments, and it broke into 3 or 4 large pieces.
The slab corners. which supported the orn:unental iron pOSt columns. remained iniac!, and there W:J.S
no apparent strucrural damage 10 either the canopy porch roof above. or supporting COncrete block
foundation wnlls below. The wood form work :IIId shoring, which W:J.S originally constructed 10 pour
the slab, was severely rotted and nearly disintegrated. Minor to modemte rOI damage was observed on
the wood sill plate at the lOp of the main house foundation wall. Disregarding the failure. the failed
concrete slab and reinforcement W:J.S in sound condition with no evidence of premature deteriomtion.
wear, rust, or other d:unage. The slab thickness W:J.S me:J.Sured 10 vary from a minimum or 3-1/2
inches to a maximum of 4-1/2 inches. and there W:J.S a maximum of 3 - #3 reinforcing bars in each
direction.
The 5 foot wide by 24 foot long front porch slab appears 10 be in relatively good condition except for
the presence of two relatively small hairline shrinkage cracks running the 5 fOOl direction and one
slightly larger crack running diagonally across the righl rear corner of the slab. These cracks are
relatively normal shrinkage and movement type cracks. :IIId they are not normally indicative of :lilY
significant structural problems. However. if the front porch slab is either nOI supported by compacted
fill material or continuous ledger be:uing along the main front foundation wall. there is the pOlential
and likelihood for a similar failure and col11pse.
CONCLUSIONS At'\fD RECO!vlNfENDATIONS.
The rear concrete porch slab at the Williams residence structurally failed and col11psed due 10 normal
bending and shear forces from its own weight. The slab was nOI properly supported along the rear
house foundation wall. and it did nOI have proper thickness or reintbrcing 10 span either the 10 fOOl
shOrt direction. or the 20 foot 10l)g direction. For most if its "life", the slab W:J.S apparently supported
bv the forwork, shoring, and wood ledgers that were originally installed. Following the complete rot
:ma deteriomtion of the forwork, the slab was forced to span the 20 foot long dimCnsion between the
two side porch foundation walls which it W:J.S not structurally capable of doing. The AG code '.
- &ipulates that the minimum thickness for simply supported solid one way slabs is the span length
divided by 20. Accordingly, for the slab 10 span the 20 foot length between the side foundation wnlls.
it would have had 10 have been a minimum of 12 inches thick. Moreover. regardless of the applied
design loads. the slab would have had 10 have had minimum positive bending reinforcement of #5 bars
at 8 inch centers in the long direction and minimum temperature reinforcement of #4 bars at 10 inch -
centers in the short direction. Even if the slab had positive be:uing support along the main rear house
foundation wall. it would have had 10 have been a minimum of 6 inches thick, with minimwn positive
bending reinforcement of #4 bars at 10 inch centers in the short direction and minimum temperature
reinforcement of #3 bars at 10 inch centers in the long direction.
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(At tffis ]lm~ th6 frOnt porch slab is apparently und:unaged; however, if the slab is not supported by
eW~ c'Clinpacted till or continuous bearing along the front house foundation wall. it will likely fail and
. ~611apse in the future. Accordingly, I would recommend that the owners have one or two small lest
obse~-h9,les cut in the front porch slab along the main front eXlerior wall of the house. From
these'fl'o1~, 'it can be verilied whether the proper slab bearing support exists. If proper support does
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Insp. of D. Williams Porcll Slab
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April 24, 1996
not exist. the slab should be removed and replaced in a manner similar to that described below for the
rear porch slab.
The rear concrete porth should be removed and replaced with a properly designed structural concrete
slab. The urnilled space between the porth foundation wills can not be filled with compacted fill or
crushed stone material to provide for full slab bearing. The porth foundation walls and footings are
not designed or constructed as retaining walls, and they can not resist the imposed lateml eanh
pressure forces from three or four feet of differential fill material. Accordingly, I would recommend
tliat additional 8 inch concrete block foundation cross walls and footings be instJlled in the shon
direction at the approximate third points of the 20 foot slab span. The contr:lctOr can then fonn and
pour a continuous three span concrete structur:1! slab of minimum 5 inch total thickness. The slab
should be reinforted with #4 main bottom bars at 12 inch centers in the long direction, #4 main top
bars at 12 inch centers in the long direction, and #3 bottom temperature bars at 12 inch centers in the
shan direction. The porth roof must be temporarily shored and braced for full design loads until such
time as the slab bas set and cured, and any other necessary repairs must be made to wood sill plate and
adjoining floor construction. In either event, the wood house floor framing should be protected from
the edge of the slab with continuous t1ashing. If necessary, the front pOrth slab can be reconstructed
in a similar manner by installing 5 foot long foundation cross walls and footings at the third points of
slab span at 8 foot maximum centers. The 8 inch block foundation cross wills and footings must be
taken down to at least the level of the existing porth foundations, and they must bear on original
undisturbed soil.
In summary, the rear porch slab at the residence of Darrin and Penny Williams structurnlly failed and
collapsed under its own weight due to the improper design and construction of the slab. This improper
design and construction included inadequate slab thickness, inadequate slab reinfortement, and lack of
proper bearing suppon along the rear house foundation wall The slab should be removed and
reconstructed in accordance with the ACI Code and the complete design of a registered professional
engineer. The front porth slab should also be further investigated for similar deficiencies and replaced
as necessary. I have enclosed a series of photographs which clearly show the details of the front and
rear porch slabs, and the nature of the collapse. If you have any questions or comments concerning
my inspection, this repon, or the conclusions and recommendations contained herein, please contact
me.
.
.
Rc~~y subrni~ .
/~~/V/
William S. Miller N, P .E. '
S tructur:1l Engineer
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DARRIN G. WILLIAMS
V.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
.
.
S & A CUSTOM BUILT HOMES,
INC.
: NO. 97-0540 CIVIL TERM
.
.
CIVIL ACTION - LAW
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT
BEFORE SHEELY. P.J. AND OLER. J.
OPINION AND ORDER OF COURT
Argument was heard on June 25, 1997, with regard to
defendant.s preliminary objections requesting the Court to
dismiss plaintiff's Complaint for failure to attach a contract.
Alternatively, defendant requests a more specific pleading.
Defendant has further demurred to certain portions of the
Complaint.
FACTS
Plaintiff filed a Complaint on February 25, 1997, setting
forth the following allegations. Defendant constructed
plaintiff's home in 1985 and eleven years later, the porch
collapsed. Plaintiff's insurance company denied coverage after
an expert examined the porch and opined that the collapse was
caused by poor workmanship and defective construction. In March
of 1996, defendant agreed at its expense to remove the debris
created by the collapse and to construct a new porch. In May of
1996, construction began and continued until July of 1996,
without completion of the project. Additionally, the work which
was done was not completed in proper workmanlike condition in
NO. 97-0540 CIVIL TERM
that defective or old siding was used along with other wrong
material; the steps were never replaced; and the concrete was not
properly installed. Plaintiff incurred expenses in labor fees
for the removal of concrete and debris as well as painting
defendant failed to perform on the job site. Total damages are
estimated at $5,255.00.
DISCUSSION
I. Preliminary Objection in the Nature of a Motion to
Strike Pursuant to Pa.R.C.P. l028(a)(2).
Rule 1028(a)(2) provides the following ground for a
preliminary objection: "failure of a pleading to conform to law
or rule of court or inclusion of scandalous or impertinent
matter." Defendant claims that plaintiff has failed to conform
to Pa.R.C.P. 1019(h) which states:
A pleading shall state specifically whether any claim
or defense set forth therein is based upon a writing.
If so, the pleader shall attach a copy of the writing,
or the material part thereof, but if the writing or
copy is not accessible to him, it is sufficient so to
state, together with the reason, and to set forth the
substance of the writing.
Defendant argues that at paragraphs 5 and 9, plaintiff alleges
the existence of an agreement and or contract between the parties
and does not indicate whether such agreement or contract is oral
or written in nature. Further, if it is written, the contract is
required to be attached to the Complaint.' Defendant asks that
In his objections, defendant also avers that paragraph 3
of the Complaint alleges defendant constructed plaintiff's home
in 1985 yet fails to attach a construction agreement or agreement
of sale between the parties. This argument was not briefed and
2
NO. 97-0540 CIVIL TERM
the Co~plaint either be dismissed or amended.
At Argument, plaintiff maintained that the contract was
oral. Moreover, it has been held that if a pleading does not
specify whether it is based upon a writing, the inference is that
it is oral. Harvey Probber, Inc. v. Kauffman, 181 Pa.Super. 281,
285, 124 A.2d 699, 700 (1956), cited in Barger v. Chevron, Inc.,
56 D&C 2d 200, 205 (1972). In view of the foregoing law and
counsel's statement, we declare that the contract is oral. This
objection is therefore denied.
II. Preliminary Objection in the Nature of a More Specific
Pleading Pursuant to Pa.R.C.P. 1028(a)(3)
Defendant alternatively contends that to the extent the
agreement is oral, plaintiff should be required to plead more
specifically the nature and terms of the agreement to adequately
prepare a defense. After review of the Complaint, this Court
believes that defendant has been apprised of the essential facts
to prepare a defense and further details can be elicited through
depositions. However, we will require plaintiff to amend his
Complaint to indicate with whom he made the agreement to make the
repairs, if known, or at least the circumstances surrounding how
this agreement was made.
III. Preliminary Objection in the Nature of a Motion to
Strike Pursuant to Pa.R.C.P. 1028(a)(4)
therefore will not be addressed in accordance with Local Rule
210-7.
3
NO. 97-0540 CIVIL TERM
Defendant argues that paragraphs 9 and 10' with regard to
the installation of BOO face brick should be stricken for legal
insufficiency. The standard for ruling upon preliminary
objections in the nature of a demurrer is well-established:
All material facts set forth in the complaint as well
as inferences reasonably deducible therefrom are
admitted as true . . . The question presented by the
demurrer is whether, on the facts averred, the law says
with certainty that no recovery is possible. where a
doubt exists as to whether a demurrer should be
sustained, this doubt should be resolved in favor of
overruling it.
Mahoney v. Furches, 503 Pa. 60, 66, 46B A.2d 45B, 461-62
(19B3) (citations omitted).
Defendant alleges that the exhibits attached to plaintiff's
Complaint demonstrate that brick was never utilized in the
construction of plaintiff's porch, particularly the BOO face
brick alleged in his claims of damage set forth in Exhibit B
attached to the Complaint. Defendant argues that paragraph 3,
page 1 of the denial of coverage letter sent from plaintiff's
insurance company clearly reads that the porch was constructed of
a "concrete structural slab bearing on B inch hollow unreinforced
concrete block foundation walls on three sides." In view of the
standard for legal insufficiency, we believe this objection
, 9. The defendant breached its contract to properly
construct the porch.
10. The cost of repairing the defective and improper work
is the sum of Four Thousand Four Hundred Fifty-Five and
no/lOO ($4,455.00) Dollars. A copy of said estimate is
attached hereto and marked as Exhibit "B".
4
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
NO. 97-540 CIVIL TERM
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
I
DARRIN G. WILLIAMS,
Plaintiff
S&A CUSTOM BUILT
HOMES, INC.
Defendant
NOTICE TO PLEAD
TO: Darrin G, Williams
rio Marcus A. McKnight, III, Esquire
West Pomfret Professional Building
60 Weset Pomfrct Street
Carlisle, PA 17013-3222
You are hereby notified to plead to the within document within twenty (20)
days after service hereof, or a default judgment may be entered against you,
METrE, EVANS & WOODSIDE
By:
aniel M. Campbel , Esquire
Sup. Ct. I. D. #72689
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Defendant,
S&A Custom Built Homes, Inc,
Dated: March ~, 1997
95195_1
DARRIN G. WILLIAMS,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
NO. 97-540 CIVIL TERM
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
v.
S&A CUSTOM BUILT
HOMES, INC.
Defendant
PRELIMINARY OBJECTIONS OF DEFENDANT
S & A CUSTOM BUILT HOMES. INC.
AND NOW, comes Defendant, S&A Custom Built Homes, Inc., by and
through its attorneys, Mette, Evans & Woodside, and makes the foIlowing
Preliminary Objections, in support of which it avers as foIlows:
I. Preliminary Objection in the Nature of a Motion to Strike Pursuant
to Pa. R.C.P. 1028(a)(2)
1. Pa. R.C,P. 1019(h) provides as follows:
A pleading shaIl state specificaIly whether any claim or defense set
forth therein is based upon a writing. If so, the pleader shaIl attach a
copy of the writing, or the material part thereof, but if the writing or
copy is not accessible to him, it is sufficient so to state, together with
a reason, and to set forth the substance of the writing.
2, Paragraph 3 of Plaintifl's Complaint alleges that Defendant
constructed Plaintifl's home in 1985.
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lNIVldrm:) 3'lU 01 l1fHl UNV lV3.JrlV JU DUON jO J)IMt:lS j() 300Hd
COMMONWEALTH OF PENNSYLVANIA
-COUNTY OF: CUMBERLAND
NOTICE OF JUDGMENT/TRANSCRIPT
CIVIL CASE
PLAINTIFF: NAME and A!)CHtSS
rwILLIAMS, DARRIN G. --,
4 STRAWBERRY LANE
CARLISLE, PA 17013
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Uag 0..' No
09-2-01
OJ Nam. Hon
PAULA P. CORREAL
"d._ EAST WING - COURTHOUSE
1 COURTHOUSE SQUARE
CARLISLE, PA
'......one 1717) 240-6564 17013-0000
VS.
OEFENDANT:
NAME aI'Id AQOR[BS
rs & A CUSTOM BUILT HOMES
1147 HARRISBURG PIKE
CARLISLE, PA 17013
L
INC.
S & A CUSTOM BUILT HOMES INC.
1147 HARRISBURG PIKE
CARLISLE, PA 17013
Docket No,: CV-0000564-96
Date Filed: 10/18/96
THIS IS TO NOTIFY YOU THAT:
Judgment:
FOR PI.AINTIFF
[R] Judgment was entered for: (Name) WILLIAMS , DARRIN G.
[R] Judgment was entered against: (Name) S &' A CUSTOM BUII.T HOMES INC.
in the amount of $
1,llR qn on:
(Date of Judgment)
(Date & Time)
1/11/q7
o Damages will be assessed on:
3.057.40
61. 50
.00
.00
3,118.90
o This case dismissed without prejudice,
Amount of Judgment $
Judgment Costs $
Interest on Judgment $
Attorney Fees $
TOTAL
$
o Levy is stayed for _ days or 0 generally stayed,
o Objection to levy has been filed and hearing will be held:
Date:
Place:
Time:
ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY F:LING A NOTICE
OF APPEAL WITH THE PR~!HO~Y/CLERK OJ:, COUR~ OF THE COURT OF COMMON PLEAS, CIVIL DIVISION,
'IOU MUS~ INCLUDE ~.coP~ OF THlsfNIJTICE OF }u"D D~'7 Wf,' /TRAN ~IPT FORM WITH YOUR NOTICE OF APPEAL
1- !~> C;, Oat ' ? "- C-&1v........' \ District Justice
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I certify that this is a) e' and GDf~ect copy of ,tie~ rd lihe procee ngscontaining the judgment.
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, _'.' Date' . '( .,11-,_, / ,J ' District Justice
SEAL
My commission expires first Monday 01 January, 2000 '
AOPC 315,96
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PROOF OF SERVICE OF NOTICE OF APPEAL ANO RULE TO FILE COMPLAINT
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Pa. D. & C.3d 5, 6 (1980), In support of this objection, Defendant cites a single toot note in .Iost
v. Phornlxvllle Area School District, 267 Pa. Super. 461, 406 A.2d 1133 (1979), a case where
the plaintiff did not base his cause of action upon a written contract, making the tootnote mere
dicta, Because the Defendant entered into the contract as a builder in the business of
construction. Defendant is in an equal or greater position than the PlaintitT home owner to have a
eopy of the contract and knowledge of any and all subsequent agreements, Dctendanttherefore
has notice of what to defend against.
When the facts lie in the knowledge of the opposing party as much or more than in the
party submitting the complaint. the same precision is not required lor pleading, Bloomsburl!
Mills. Inc.. v. Sordoni Construction Co.. 14 Pa. D. & C.2d 551, 554 (1957),
Defendants have full knowledge of the plans and specifications, as well as the
construction contract. and requiring plaintiff to attach these papers, which arc
already in defendants' possession. would be an absurd requirement in our opinion,
It is the court's opinion that delendants arc fully advised orthe basis ofplaintitl's
suit and that they arc in a position to fully answer and deny, if they so choose, any
or all of the allegations set torth in the complaint. Id, at 558-559.
Although the court in Bloomsburg did point out that the action in that case was one of negligence
rather than breach of contract, the principle has since been extended, See I. W. Levin & Co. v.
Oldsmobile Div. of Gen. Motors Coro., 8 Pa. D. & C.3d 361, 363 (1978); Cianfrani v.
Commonwealth. State Emo. Ret. Bd., 78 Pa. Commw. 597,_, 468 A.2d 1151, 1154 (1983);
Keoul!h v. Harshaw's. Inc., 36 Pa. D. & C.3d 612, 615 n.1 (1984), "Where a document that
has not been attached to a complaint is one that a responding party would likely have a copy of in
its own tiles. an objection based upon the failure to attach a copy thereof will not succeed, . , ,"
Goodrich-Amram 2d * 1019(h):9,
The reason lor Pa.R.Civ.P. 1019(h) is absent because Dctendant was a party to both the
contract and subsequent agreements and has or should have copies of the same within its
2
possession, Plaintifl's Complaint has therefore confonned to the applicable law, Plaintiff
attached to the Complaint infonnation on both the specific dcsign and workmanship problems
with the porch and the estimatcd cost of covcring Dctendant's breach, The Complaint is
thereforc sufficiently specific reasonably to infoml Defendant of the facts that it must be
prepared to meet at trial. Plaintifl's failure to attaeh said contract or subsequent agreements to his
Complaint is not fatal to the validity of the Complaint.
B. PlalntiCrs Complaint has plead Cacts with sufficient specificity to apprise
DeCendant oCthe claims alleged against it pursuant to Pa.R.Civ.P. 1019(a).
Plaintifl' agrees that Pa.R.Civ.P. 1019(a) requircs a complaint to apprise a dcfendant of
the alleged claims and to summarize thc essential facts thc complainant intends to establish in
support of his claim, The rules are also to be "liberally construed to secure the just, speedy and
inexpensive detennination of every action or proceeding to which they arc applicable,"
Pa.R.Civ.P.126, This rule also allows any error to be disregarded if the substantial rights of the
parties are unaffected, In light of these rules, Plaintifl's Complaint has plead facts with sufficient
spccificity to give notice to Dcfendant of what issues Plaintiff intends to prove at trial. The oral
agreement was made as an effort to repair the damage caused by the collapse of the original
improperly constructed porch, Plaintiff was simply told that it would be fixed according to
proper specifications,
Defendant overstates its objection in alleging that the Complaint fails to delineate any of
the tenns of the agreement between the parties, The Complaint states that Defendant agreed to
construct a new porch and to rcmove the debris lromthe collapsed porch, The Complaint also
sets forth the alleged defects: detective and old siding which had been cracked was used, the
porch steps were nevcr rcplaced, painting was never perlonned, debris wus Icn at the homc, and
the concrete was uguin installed improperly us it hud becn before, The Complaint also states thc
approximate date that the Dcfendant company agreed to repair the collapscd porch, The collapsc
3
of Plaintiff's porch and subsequent failure of the builder to properly repair said porch hardly
constitute bald. unfounded allegations, Plaintiffhus complied with l'a.R.Ch'.I'. 1ll19(a), and the
Complaint has sufficiently informed Defendant of all issues and esscntial facts being mised,
Defendant's preliminary objection should therefore be denied,
C. Whether Plaintiff is permitted to recover for the layin~ of "1100 face hriek"
is a factual issue hetter resolved durin~ trial.
Defendant's statement of thc law lor tcsting the legal sufficiency of a preliminary
objcction in the nature of u demurrer needs only to be supplemented by the following:
Since the sustaining of u demurrer results in a denial of the pleader's claim or a
dismissal of his suit, a preliminary objection in the nature of a demurrer should be
sustained only in cases that clearly and without a doubt fail to state a claim for
which rcliefmay be granted.", (I' the facts as pleaded state a claim for which
relief muy be granted under any theory of law then there is suflieient doubt to
require the preliminary objection in the nature of a dcmurrer to be rejccted,
Countv of Allel!henv v. Commonwealth of Pennsvlvania, 507 Pa. 360,_,
490 A.2d 402, 408 (19115),
The facts pleaded are sufficient to support a claim for breach of contract. Plaintiffhas
appropriately attached documents explaining how the Defendant improperly constructed
Plaintiff's porch and estimating thc cost of covering Defendant's breach, Defendant's objection to
the use ofspeciiic materials used to cover that breach of contract is premature and instead
represents a factual dispute better resolved at trial.
Preliminary objections raising an issue under Pa.R.Civ.P. 1028(a)(2), (3) or (4) ure
detemlined from the facts of record so that further evidence is not required, Defendunt's third
preliminary objection made pursuant to Pa.R.Civ.P. 10211(a)(4), however, raises a factual issue
and dispute whose resolution requires the collection of more facts and more evidence, At this
point in the proceedings, such action will result in unnecessary dclay in the resolution of this
maller, The Complaint is sufficiently speciiie to apprise Defendant of the issues involved so that
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the very least explain the absence thereof, leaves S&A at a loss as to how to
respond to the Williams' Complaint. In particular, there is no indication on the
face of the Complaint as to the basis for the claims of damages in the amount of
Five Thousand Two Hundred Fifty.five ($5,255.00) Dollars,
Paragraph 7 of the Complaint states: "[t]he Defendant never completed the
work and the work which was performed by the Defendant was not in proper
workmanlike condition." However, Williams fails to plead any of the tenns of the
alleged agreement between the parties, nor does Williams provide any factual
support for the allegations of unworkmanlike construction and/or repair. In
paragraph 8 Williams alleges "[tlhe Defendant used the wrong materials and has
never replaced the steps." Again, however, Williams fails to state any agreement
tenns, and thereby, cite what materials were agreed.upon to be utilized in the
repair of the Williams' porch. As to the steps in particular, there is no allegation
as to how and/or why the steps were damaged or in need of replacement.
In paragraph 5 Williams states "[i]n March of 1996, the Defendant agreed
at its expense to remove the existing debris and construct a new porch as
requested and specified by the Plaintiff." At paragraph 9 Williams alleges "[t]he
Defendant breached its contract to properly construct the porch." However, in
neither case does Williams provide the specifications allegedly provided by
Plaintiff to Defendant S&A. Moreover, no detail whatsoever is provided
concerning the alleged contract, its terms, or the obligations of the parties as a
result of the alleged contract.
Exhibit "A" of the Williams' Complaint consists of correspondence from the
Ohio Casualty Group. Apparently they are attached as expert opinion, allegedly
evidencing the defective nature of the original construction. However, these
opinions have no legal ramifications in and of themselves, particularly as to the
alleged agreement between the parties. They do, however, establish the original
construction of the porch, i.e., materials used, size, etc, See paragraph 3, page 1 of
the April 24, 1996 correspondence attached as Exhibit "A" to Plaintiffs Complaint.
Exhibit "B" is the estimate of repairs to the porch allegedly prepared by
Hunters Masonry. Notwithstanding the lack of any attempt to explain or attach
an agreement between the parties, the estimate as attached at Exhibit "B" at item
no. 1 states "lay approx. 800 face brick," Clearly, Williams includes this item as
reimbursable damage. However, the original specifications for the porch, never
included brick. See paragraph 3, page 1 of the April 24, 1996 correspondence
attached as Exhibit A to Plaintiffs Complaint. The porch was constructed of
concrete block, not brick, The Plaintiffs own exhibits clearly establish the
inappropriateness of the inclusion of such an item of damage.
Alpha Tai Omel!a Fraternitv v. Universitv of Pennsvlvania. 318 Pa. Super. 293,
464 A.2d 1349 (1983). In essence, a pleading is to serve the function of defining
issues and giving notice to the opposing parties of what the pleader intends to
prove at trial so that a defendant may, in turn, prepare to meet such proof with
its own evidence. Laursen v, General Hospital of Monroe Countv, 259 Pa. Super.
150, _, 393 A.2d 761, 766 (1981), reversed on other grounds, 491 Pa. 244, 431
A.2d 240 (1981).
This requirement of specificity is no different for oral contracts. As with
express contracts, complaints filed on the basis of oral argument "must allege with
whom the contract was made, a meeting of the minds, the executing of the
contract, the mutuality of the obligations, and, with definiteness and certainty, the
terms of the contract. This must be done in such a manner as to give the
defendant full and specific details of the alleged breach thereof and the damages
claimed." 4 Standard Pennsylvania Practice 2d ~22:9; see also, Chodoff v.
Michelin Tire Co" 304 Pa. 196, 155 A.2d 437 (1931). The failure to adequately
plead can result in the complaint being stricken by the Court, in recognition that
the pleader had the opportunity to replead the complaint following the filing of
preliminary objections, but did not take the opportunity to so amend. As a result
of this failure to amend, the Courts have assumed that the complainant has pled
as strong a case as is possible, Christiansen v. Philcent Corporation, 226 Pa.
Super. 157,313 A.2d 249 (1973).
Masters. etc, v. International Onranization Masters. etc" 414 Pa. 277, 199 A.2d
432 (1964). For the purpose of testing the legal sufficiency of the challenged
pleading, preliminary objections in the nature of demurrer admit as true all well
pleaded material, relevant facts, and every reasonable inference deducible from
those facts. Allerrhenv Countv. 507 Pa, at 372, 490 A.2d at 408; Conrad v.
Pittsburrrh, 421 Pa. 492, 218 A.2d 906 (1966); Bruhin v, Commonwealth, 14
Cmwlth. Ct. 300, 320 A.2d 907 (1974).
Viewing the Williams Complaint on its face, it is readily apparent in light of
the exhibits attached thereto that brick was never utilized in the construction of
the Williams' porch. If, in fact, Defendant S&A Custom Built Homes, Inc. agreed
to repair and/or reconstruct the porch, there is no basis upon which Plaintiff can
demand Defendant include in such repair and/or reconstruction 800 face brick as
alleged, Paragraph 3, page 1 of the April 24, 1996 correspondence attached as
Exhibit "A" to Plaintiffs Complaint clearly reads that the porch was constructed of
a "concrete structural slab bearing on 8 inch hollow unreinforced concrete block
foundation walls on three sides." No brick was included in the description of the
original construction of the porch. However, Plaintiff includes in his claims of
damage the cost of laying approximately 800 face brick as delineated on the
invoice allegedly prepared by Hunters Masonry and attached to Plaintiffs
Complaint as Exhibit "B."
,
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WS. i'rlILLER IV, P.E.
CONSULTING STRUCTURAL ENGINEER
3001 PIKESfREEl'
HARRISBURG. PA Inn
TEL: (n7l 564-1644
FAX: 1717l 564-2432
April 24, 1996
John Lyter
The Ohio Casualty Company
P.O. Box 843
Carlisle, PA 17013
Re: SlI'Uct1l1':1l Inspection of Collapsed
Concrete Porch Slab
Residence of Darrin & Penny Williams
4 Strawberry Lane
Carlisle, P A
Dear Mr. Lyter:
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In accorUau\;<; wiLl:. }'vW" ,cque~:' ! c:)!!d\!cred :1 strUcroral insuection at the residence of Darrin and
Penny Williams on March 26. 1996. The purpose of my inspection was to rietermine the cause and
extent of structUI':ll damage to the collapsed rear concrete porch slab, foundation walls, and supponed
roof structUI'e, and to make general recommendations for repair, as applicable. My inspection was
conducted in the presence of Mrs. Williams, and it included detailed visual observations of both the
collapsed rear porch slab and the uncollilpsed front porch slab.
GF.NERAL BUIT..DTNG DESCRIPTION AJ'ID BACKGROUND INFORMATION-
The Williams residence is a p:utial one story, partial two story bi-level residence with full basement
under the one story section. and attached front and rear porch strUctUI'eS. The building has wood
frame roof and floor strucrores, and wood stud frame exterior walls with a combination of brick veneer
on the front and vinyl siding on.the remaining elevations. The residence is siroated on a relatively level
site with finished exterior grode,}ocated approximately 3 feet below the first floor level. The home was
~onedly constrUcted for the Williams in 1985 jJy S&A Homes. ':""
_ ;me rear porch has overall exterior dimensions of 10 feet deep (front to rear) by 20 feet wide. The
porch consistS of a nominal 4 inch concrete strUcroral slab bearing on 8 inch hollow unreinforced
concrete block foundation walls on three sides. The slab is nominally reinforced with twO or three #3
bars in each direction. and it butts against but is not supported by the rear basement foundation wall of
the house. The porch slab and topS of the supporting foundation walls are located approximately three
feet above finished exterior grade. and they extend downward to footings that are near the level of the
adjacent basement. Finished grade within the porch foundation walls is slightly below the surrounding
finished exterior grade. The porch slab and foundation walls serve as supports and bearing for a pair
of ornamental iron post columns which support a gable style porch canopy roof above.
The fronJ;-pQlth,~as;.overall exterior dimensions of 5' -0" deep (front to rear) by 24' -0" long. The front
porch slaB is-alSQ of"no.minal 4 inch thickness, and it appears to be supported by only the front and
side porc"11 found'ation walls. The slab does not appear to bear on the front basement foundation wall
of the house; however it could not be positively determined whether there was a bearing ledge on the
main foundatiJlv.lVi:i!llfu pmmde positive support for the slab. Mr.;. Williams indicated that the builder
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lnsp, of D. Williams Porcu Slab
(2)
April 24. 1996
had stated that the from porch was constrUcted in a similar manner [0 the rear porch. The front porch
slab and porch foundation walls also serve as bearing and sup pOll for a series of three ornamental
round columns which SUPPOIl the porch roof overhang of the main gable house roof above.
INSPECTION.
I conducted a detailed visual inspection of the Williams residence On March 26. 1996 to determine the
~ature and cause of the collapse of the rear porch slab. and to detennine the condition of the similarly
'constrUcted frOnt porch slab. The 10 foot deep by 20 foot long rear porch slab had strUcturally failed
and completely collapse into the unfilled foundation space below. The slab failed in pure tlexural
tension and shear due to the applied forces and bending moments. and it broke into 3 or 4 large pieces.
The slab comers. which supported the ornamental iron post columns. remained inlllct, and there was
no apparent strUetural damage to either the canopy porch roof above. or supporting concrete block
foundation walls below. The wood form work and shoring. which was originally constrUcted to pour
the slab, was severely rotted and nearly disintegrated. Minor to moderate rot damage was observed on
the wood sill pl:ue at the top of the main house foundation wall. Disregarding the failure. the failed
COncrete slab and reinforcement was in sound condition with no evidence of premature deterioration.
wear. 11ISt, or other damage. The slab thickness was measured to vary from a minimum of 3-112
inches to a maximum of 4-1/2 inches. and there was a maxim urn of 3 . #3 reinforcing bars in each
direction.
The 5 foot wide by 24 foot long front porch slab appears to be in relatively good condition except for
the presence of two relatively small hairline shrinkage cmcks running the 5 foot direction and one
slightly larger crack tunning diagonally across the right rear corner of the slab. These cracks are
relatively normal shrinkage and movement type cracks. and they are not normally indicative of any
significant strUctural problems. However. if the front porch slab is either nOt supported by compacted
fill material or continuous ledger bearing along the main front foundation wall. there is the potential
and likelihood for a similar failure and collapse.
CONCLUSIONS AND RECO?Vf1l,.!ENDATIONS.
The rear concrete porch slab at the Williams residence strUcturally failed and collapsed due to normal
bending and shear forces from its own weight. The slab was not properly supponed along the rear
house foundation wall. and it did not have proper thickness or reinforcing to span either the 10 foot
shOll direction. or the 20 foot 10l)g direction. For most if its "life", the slab was apparently supponed
b,L the forwork. shoring, and wciod ledgers that were originally installed. FollowiDg the complete rot
aiia deterioration of the forworIc, the slab was forced to span the 20 foot long dimension between the
two side porch foundation walls which it was not structurally capable of doing. The ACI code '.
- wpulates that the minimum thickness for simply supponed solid One way slabs is the span length
divided by 20. Accordingly, for the slab to span the 20 foot length between the side foundation walls.
it would have had to have been a minimum of 12 inches thick. Moreover, regardless of the applied
design loads. the slab would have had to have had minimum positive bending reinforcement of #5 bars
at 8 inch centers in the long direction and minimum temperature reinforcement of #4 bars at 10 inch .
centers in the shOll direction. Even if the slab had positive bearing support along the main rear house
foundation wall. it would have had to have been a minimum of 6 inches thicIc, with minimum positive
bending reinforcement of #4 bars at 10 inch centers in the shOll direction and minimum temperature
reinforcc::ment of #3 bars at 10 inch centers in the long direction.
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(~t urIS }lme. the front porch slab is apparently undamaged; however. if the slab is not supponed by
6i~ c'Qinpacted till or continuous bearing along the front house foundation wall. it will likely fail and
, ~ollapse in the future, Accordingly, I would recommend that the owners have one or two small test
obseqtAljgn-hqles cut in the from porch slab along the main front exterior wall of the house. From
these'Jlb1~. it can be veritied whether the proper slab bearing support exists. If proper support does
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Insp, of D, Williams PorclI Slab
(3)
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April 24, 1996
not exist. the slab should be removed and replaced in a manner similar to that described below for the
rear porch slab.
The rear concrete porch should be removed and replaced with a properly designed structural concrete
slab. The unfilled space between the porch foundation walls c:m not be filled with compacted fill or
crushed stone material to provide for full slab bearing. The porch foundation walls and footings are
not designed or constructed as rel.1ining walls, and they can not resist the imposed lateral earth
pressure forces from three or four feet of differential fill material. Accordingly, I would recommend
diat additional 8 inch concrete block foundation cross walls and footings be installed in the short
direction at the approximate third points of the 20 foot slab span. The contractOr can then form and
pour a continuous three span concrete structural slab of minimum 5 inch total thiclmess. The slab
should be reinforced with #4 main bottom bars at 12 inch centers in the long direction, #4 main top
bars at 12 inch centers in the long direction, and #3 bottom temperature bars at 12 inch centers in the
short direction. The porch roof must be temporarily shored and braced for full design loads until such
time as the slab has set and cured, and any other necessary repairs must be made to wood sill plate and
adjoining floor construction. In either event. the wood house floor framing should be protected from
the edge of the slab with continuous t1ashing. If necessary, the front porch slab can be reconstructed
in a similar manner by installing 5 foot long foundation cross walls and footings at the third points of
slab span at 8 foot maximum centers. The 8 inch block foundation cross walls and footings must be
taken down to at least the level of the existing porch foundations. and they must bear on original
undisturbed soil.
In summary, the rear porch slab at the residence ofDanin and Penny Williams structurally f:riled and
collapsed under its own weight due to the improper design and consuuction of the slab. TItis improper
design and construction included inadequate slab thickness. inadequate slab reinforcement. and lack of
proper bearing support along the rear house foundation wall The slab should be removed and
reconstructed in accordance with the ACI Code and the complete design of a registered professional
engineer. The front porch slab should also be funher investigated for similar deficiencies and replaced
as necessary. I have enclosed a series of photographs which clearly show the details of the front and
rear porch slabs, and the nature of the collapse. If you have any questions or comments concerning
my inspection. this report, or the conclusions and recommendations contained herein, please contact
me.
.
.
Re~~y submi~ .
~~~/V
William S. Miller IV, PE. ~
Structural Engineer
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