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Home My WebLink About97-02076 . . ' 'It&. Q 1 ;' ~ ~ It .a N ~ ' ..... ""'- .. ~~ '" ~ ~<1 > '- ~ . ct-.. ... ...... " 11 .- I.' . .:;) - ...,,) t' ~) ~I I .1 <I , I NOTICE OF APPEAL COMMONWEAL 1"H OF PENNSVLVANIA CQURT OF COMMON PLEAS Cumb~lland County JUDICIAL DISTRICT /1.,,)1- ?'l DISTRICT JUSTICE JUDGMENT FROM COMMON P.L~S N~, 7 '/- ,)~, 'Ie, C,<.'(.: t -r;,...... NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pled! an appeal from tho judgmunt rendered by the District Justice on the date and III the case mllntioned below. NA". 0" .......u...." ....11.0.". "0. a.. "..... 0.. 0.'. Desert Dry Waterproofin~/Central PA ..00.....0.. ......""..", cn" 09-3-05 Ronald Klair .,..,. II. coo. 5010 Lenker Streee Hechen i!::sb.!!f&. PA 17055 ."'.0" ,UOQM,,,,, ." ,... c.... 0".";'-'"'' '0....,'..." ()]/27/97 n. Desert DL" WateL" roofin~/Central ......u.. D' ......... D..~ PA ~~~o e, Eaq., 031979 is required under Pa. Micha~l C. Fasti i C""I" "0, C'/19 !,I 7 -0000027 LT 19 This block will be signed ONLY when this notation R,C,P,JP, No, 10088, This Notice of Appeal. when received by lhe District Justice. will a SUPERSEDEAS to the judgment for possession in this case. operate as If appellam w.. Claimant lsee Pa. R.C.P,J.P. No, 100'(6) in action before District Justice, he MUST FILE A COMPLAINT within twenty days after /iling his NOTICE of APPEAL. 1201 S'9f1dCUltI of ProthOllotar'l or DepuIY PRAECIPE TO ENTER RULE TO FILE COMPLAINT Arm RULE TO FILE IThis section of form to be /Jscd ONL Y when appell.nt w.. OEFENDANT Isee Pa. R,C.P.J,P. No. 100/111 in action before District J/Jstice, IF NOT USED, detach from copy of notice of appeal to be served /Jpon appelleel, PRAECIPE: To Prothonotary Enter rule upon Hi chael C. FaB t i~~i ,appelleelll, to fil. a complaint in thil appeal Ndm. of dPpellettfs} (Common Pleal No. 97-:20 '11.. &;;.,;; -r~ within twenty (20) daYI after ler ic. "' RULE: To Hichael C. FaBti~~i Name of appel/tlef,) , appelleels) (1) You are notified that a rule is hereby entered up=>n you to file a complaint in this appeal within twenty (20) days after the date of service of this ,ule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within thil time, a JUDGMENT OF NON PROS WI LL BE ~NTER ED AGAINST YOU. , (3) The date of service of this rule if service was by mail is the date of mailing, ~ a. ">>1.j/. J ~5,; Sign.,U,..of'Pro on ",.; 0' O.pury Oat.: APL'U ,J/.J;19..JL7 AOPC 312,90 C()!Jlll FII [TO BE FILED WITH PAOTHONOT,IRY I , j", .., ;> :r( . ~ , '" \'1 \I' I ......: (0 I u', " J I" . , " , <,~ ( , :'! I I ('.J ; - " , ..j ( . " \' .... <-- ..... CO " r- ') [ i..) c.- U ~ ,~ -') - J l 'J - '. ..... '--6~ . un '.wlha U()llSIWU,OJ "w /.I.JI/iCJ IQ ~fJ'J -...---_..._---- - -._.~._-- .JpIlUJ I..... JIA'Q10P wOll'" ilJOI.Kl ;"J'")'~IIJ ,0 ,j,In"utl,s ______.'___. ____.._. '_',_n ~IJi~l_~~~~~:.~~~~_______.________ --'-6I'--.-..-----JOA'lIO---' SIHl ]V'l 3lJOHS 0391lJ:JSSnS OW I03WlJIH'lII NIJOMS .01.U.Hf fJd4:lfU. adla:J.lJ t,JiJpu.n 'pew tlj.JJ.I~'jlfJdJ' Ipali'llJ:l1 Aq L J d:J!^JiJ'i. Icuo...,atf AI) [J '--61 . ----,----.~ mn"___"---"--lIO fJ,l5'i.tJpPl! SlIM- .jlll~ .Hll. lUUqM 01 j'>).MII.IIJlle .uil unun Il!'if(kj'q' jO ftJHON ,,^O(!P i)1l1 6UlA,tJPdUlo:np. IU'Plrhuoj IF OJ!, ~ 01 :)j"H 0141 'I_Ala, I UHH hHI1,nJ pue I 0lilld4 iJ;llj~lI!1I1:.' Id!d:),lJ 5,Japu,*\ 'peUlIP;lliH'i,hal) IpJIJII;.JJI Ail r.'J JJI^1.)'j ,P.W).....,,, ^q 1"- 1- 6L '---~-'" _"I -f.)weu} "J,Jtldddr. 'JlU \JOltn pu~ 'O,iJJ<llj P"43l'Uf! Hjl.J,J;lJ IHI --...~ <', ji1Illj.I'i 'l'lhU tpal<l)Slfi;lJ) Ipa!JI}liJ:l) Aq [1 aJII\Jil'i I~Uil'ij,ld Aq rJ '-6L' -- ._--~--_. ------(i);}.M.JJS JO ,~H!Il) 110 1l',Jliiljl Po11p.u6IS<Ij) oJ:>ll\nr Plll'iIG ;1\11 t/odn '-.- ON 'OR,lld UOWUIOJ '11?,Hllt"r;f to J:lllON J\tJ JO AdOJ I..' I--j Pil^J;)~ I ,e1i1 uJJlH{' IOI!!,j,'\-"" .4.q,llilQ I :ll^VOI:J:I't ,,: --- jO A.lNflOJ VINV^'ASNNld:lO Hi lV]MNOWWOJ (ssxoq 8/qBOI/elelB ~osq:J "Baelelu 10 SO/IOU a'111i4'1'1 tl31.i'l 5'.1 '10 (0/1/131 NIH1/M OJ7/J 38 lSnI'i aOlAJiJS /0 iOOJd "41) .1NIV'dWOO 3'1~ 0.1 31ml ONV W3ddV ~O 30110N ~O 30lAlBS ~O ~OOl:ld t)~! 1..J l ::3-' it'.;.: 1 ~ -'1 .. ";'~.1.~.J.)? COMMONWEALTH OF PENN5Y1..VANIA COU~ OF' CUM,lUlRlJIIHD -""'''' 09-J-05 -, I I I 17051-0000 I ~......~ ROHALD B, JlLAIR .- !l07 N. YOM ST. MSCHANICSaURG, PA ,_ (717J 766-4575 D.'.~T DRY WATERPRooPING/CENTRAL 'A 5010 LENaER STRaIT ...cHANICS.Ulm, 'A 17055 THI.I. TO NOTlf'V VOU TH.\T, Juc.lgm<Wrt ; 00 Judgm.nt w.. ....tered tor: rE ;.E~' r;;, :E'.T;:;.... po;,.,:;E O~ NOTICIi OF cttllll<H1I~TITRANSCRIPl pl.A~r'_' ......w ~ A.00IlIiM r,.AITIQQI, MICHAEL C. 405 COC~LIN 'TREST MECHANIC.BURG, PA 17055 L '18. "'Ai..........~. ro..aRT DRY WATER'ROOrlNG/CENTRAL 5010 LENKER STREIT MECHANIC.BURG, 'A 17055 L O."."'OANT pj,j Oo<>kM No.. CV-000002'/-t7 Ollie Filed: 11 J 1/97 ..,. ~ rOR PLArNT!"" 00 (N.",.) DISERT (Neme) FASTIGGI. MICHAEL C. DRY WATER' ROOfING/CENTRAL 'A Judgment we. entered -9,,'nll: ,n'1I. amount of S 2 o Oemage. will be _&Nd on: ..2 ..1. on, o Thll cae dlam,1Iad wllllOut ptlljudice, o Levy Ia _yed !or _ day. or 0 generally atayed. o O!;jJ III ", 10 1""'1 h.. been fll..d IIn<I nearing "'III tle held: r- Tim.: i- (011I" 01 JudglTMlnl) (Ollie" Time) 1J'''IG'7 Amount 01 Judgment . 2.J92.13 Judgment Coet. S UJt InI...... on J~ment S ARomey F_ . .00 TOTAl. S 2.442.43 I ANY PAR,., HAl THE flIGHT TO APP\lIoL. WITHIN:tO DAYS AI"TI!R THIINT"V OF JUDOMIINT IV FIUNQ A NOTICI 0.. A_L. WITH THe P"OTHONOT.....V/CL.I!RK O~ COU"T'8 0' THI COUAT 0' COMMON PL.lAI, CIVIL. DIVI.ION ' YOU 14 INCL.Uoe:" COPY OF THl8 NO I! ~~ICAIPT ~OAM WITH vOUFI NOneE 01' APPeAL. -Z ' ,DistrICt J..-lce '- I. . true .,,~rr.Cl copy 01 the r~ 1t1...P"O~ contAining the luclgmenl, ar.. "_"'__ _, / ,_ u , ' Oletrtot Juatlc;. bp'r.. flr.1 MO/1~ 01 Janullty, ....... MAL 04/14/97 09:18 TX/RX NO.5009 P.002 . '* . . ',ri;> -., .~~1f""'!:~ ') "~..: 't,... _ ~;' . ;iq;:, ~; 1~\: If'.~..' i;;;t:,','-LL ,~jl' f',~: "c', '_;0 ; , :t " " <;.1 'I'~ ! ,'-,i:; ,;~, -,'; '~~",.;'.'.eH-.' ,. f "'I'"--;..~ ".. ,..'....oi ; tU!\U ~',~.' '-'if,\lrl:''''''-'.' .. i. +, ; '\ \;,:,,':1""'1'; P.I.....'_~,. .,' "';,;";..' ~ >'::~~Y~J!~.2'~: f~, '. ,,\:.J ",," ,d"_ ~ ~.,- _". , .,....,;~.~<-,., '1 ",' ; :i.,':<i'l "~;." ',r:, \ " ;-( ~ -"" '" "'-", ., ~ to. , 'f.> \ ' .""""'-...,....... S .1;.'\'..... > '" ~\" ,,"'- etv.:) . '",';:"c~_ / ,/ 'J' .}.. .. C"'::','-', ,', -~~.' ~-~-~~ 1':: 'I ,,~~ 'O-M ,-',"--+--~". '-'-'_.~'--'-'''-'--....-''''-'-''~'-'_.' ""~r"1"'~r'---~"--'------:,, ;:"...,,;i';'XPftOOII' 0,. SERViCe OF NOTice OF APPEAL AND RU!,E TO FlU COMPl.AINT ",' :'i;i'A,"i',~ of"UMd,'McJ818E FILED Wf1i.#N fEN (IOJ 004 YS AFTER 1ll1"Y the notle" of appeal Check apptlcsl11tl__ "c. '~fiii,f\~:~#h~\._t)\1l~'~C 't\\j::", ,:! ~', .~ . " "i_,-,' " 1.wr'9'ir III.M~~v",v~ , , ,'< i;; pC-".\,' "';'_"--" i~~\IIf~QI' " ,~...,..,' . ." ~;.. ... !~'tQAVIT; .J.hemy ~ea'2IJH,rm thal'wv.u' ,', ;,,', ,.' .' ';",' . .' ,,'" '. ' 1!~tt~..$;"!'!}!?,V i1j~~A~;4,JRDp~'';( (;~~'.';;';lliip'I"" N"li7.~i07~, ~~'!n ',[..td!:ir;<I,'~'~i.t\~~.tj;~'IIf\~!'~ !Ii~'a.~'!ft ' ;i'i"',cp/.", " (ik:",J'Wv",e}_~jmJ9.L..,__. 19_,,-. O',l.lt J.>Ilf"'...."''''ldl ",(),.",,,j'6flJlt;oJIVIIII~j "'41/-""'.'9" '" .. '...IPt .tt..hod h.reto, and <If"''' the ap!,"",'u, '''.'''eillic.hael.C. Fu,tiUi.n",..l. u"n_,~._____."'" u "111/Q7 _, 19_,:") ',y p<",,,,", \orv;"" iXJ hy Ico'I>'..<I) ltey"le"'di mad. "'ndi>r'i'I~liltfl,d&l1l~6.'f :~~~<,lIti...~. tfI4\C I ..nod '11\.. Rv........Fol. . <;"''''''."" .'''''';''/>;InY'Rjt the .~e /;;>~ of;A~~ unOO.tm'bTlP.i'.'Is)t~ ,~;.."".. .,., ~ the Rule was addrenc<l 00.._.4/.22/.9.1. -"_, 19,_, 0 .,by. pe"?,,,,' ,!,[W'Oil,lXJ J.~ {ce'hhed) ('''91Steredl !.' ""-'"-Z-~"""''''''''.. 1:14" "~'" '.' ,,,: '. ,-:.' "','J', , ,'"' .,. '. . ,', \' . , .~ ' . ~ ' ' ,Rlle~ ~i!~kl"E ~- " t1 VOt! ,. ___,19P1. '_. t'. . _''__,. t n'Besb 1'.<~8qUh'" ~IW.Q("fMlfl .:{1:~=;;='~1H~'~\'" i:;"' l My _lMion ..pi," on "" ., ;,'i ,19 .. 'F , .w:! " 0' '-J oq -0' ~... , f!!lf :,'; <~ L ',Q ~ '.l- -a JH t)" ,~. .~ .~o , ~ , i) ':B ~~ >-: )~ /, ~c ":! :':""1 < .. ,..., -,-,.. ...,- 'D ~ NotarlaI Seal KaINrlon c. Y;~1. NoI'l'Y Publie Hamsburg, P""Phm QOunIy My Commission Exp/tft *v 2. 1!l9ll of""" , 'I \1 \ ! I 8 a 1 I .CompIIjt_l _..I" -_. .eoo.we _I........... ."... 'fO'JI M'N .... MIlhH on !hi ,.... oI..1Drm 10 I'lII .. can fIIwn'" ........... IAIIiGtI**'1Dfm to" IroN 01'" ~ 01 on" '** 11__ doll nal .=-__Aoor ~on""_-""-- .The FIll"" ~"'IhoW'" wtIan\'" "*"... dIItv.-d Ind IN dill _. 3, 10: Michael C. Fastiggl 405 Cocklin Street ~~chanicsburg. PA 17055 IIloO with 10 .-... -.0 ......... (tar .. .1llnI ...): I 1.0 ~1I...'.Addr'" 2. CJ FIMlrIc*d DelI'Mt ConouII poo"-' "" .... I I I J I J 5. I e. . P8 Form ..-4 I~~ .. ..~ .: , . :j \ I : a I 8 il i I 1 '" IIloO with 10'- ... -.0 ......... (tar .. ..,.. ...): I. CJ Addn---1'.Addr- i' 2. CJ FIMlrIc*d DelIvelY ConouII poIlmUW lor.... f P48511l797 j CI ~red 0 Ce<tII4Id o EllpIMI Moll 0 lnoured f o RoUn RocIIpIIor Mon:/WdOI 0 COD II 7.011' 1 ~ . , 1... ~ I s. Addr '. Addr_ (Only ~ 1 ond IN II pMd) ~ .~ 1_1"-- lCamIlIIM.... a.....1nd otb. '~.'f04I nIIftlIend..... on""" oIlNItwm 10...... can fIIWn.... ........... ..... HI bin eoblrorA 01" ~ <<on IhI ,**11", em. nal 1=-,...",....." IIIql .... on IhIINIIcl6ICI below....... ruft)Ir. .1llI........_.._.._..___ond....... -. .... 10: District Justice Ronald K 507 N. York St. Mechanicsburg. PA 17055 5, ec.Nad By. (Prlnl NIIme) I . I ~- MICHAEL C. FASTIGGl, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO, 97-2076 Civil Term DESERT DRY WATERPROOFING OF CENTRAL PENNSYLVANIA. INC,. Defendant JURY TRIAL DEMANDED NOTICE 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 NOlice are served. by entering a wrillen appearance personally or by allorney and filing in writing with the Court your defenses or objections to the claims sel forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. COURT ADMINISTRATOR Cumberland County Courlhouse Fourth Floor Carlisle, PA 17013 (717) 240-6200 41506.01 5112i97 { FACTS RELEVANT TO All. COUNTS 3. In the Spring of 1996, Plaintiff Fasliggi conlacted Desert Dry and requesled that a sales representalive come to his home to inspecl a wet wall problem in his basement and provide a recommendation and estimate for repair. 4, Shortly Ihereafter, Deserl Dry sent a representative to P~aintiff Fastiggi's home to inspect the wet basemenl area and proposed the installalion of a sub-floor pressure relief walerproofing system ("sub-floor waterproofing system") in Plaintiff's basement. 5. The representative of Desert Dry provided a proposed eslimate of $2,780,00 for the installalion of Desert Dry's sub-floor walerproofing system. (A copy of the proposal and estimate is attached hereto as Exhibil "A"), 6, The inslallalion of the sub-floor waterproofing system would require the removal of Ihe concrele floor edge along two walls in Plaintiff's basement, with an approximate lotal footago: of 54 feet. bUI with a few enginp.ered concrete spacers (i.e., original floor parts) to be left in place along each wall to maintain the strength and stability of the foundation. 7. The proposal also provided for a quality concrete mix 10 fill the Irenches and a spraying of the walls with a mold and mildew retardant. 8. The Desert Dry representative assured Plaintiff Fastiggi thallhe sub-floor waterproofing system would remedy the wet basement problem. 9. On August 27, 1996, a second Desert Dry representative came to Plaintiffs home to verify the work 10 be performed based on the original proposal and estimate, "&S06.0l 5/12197 -2- 10. The Desert Dry representative measured the walls and also eltplained the procedure for the installalion of the sub-floor waterproofing system, including but not limited to, the length and width of the trench; Ihe concrete spacers to be left in place along each wall; the placemenl of the stone; and the deplh and placement of the 4 inch f1eltible coiled perforated piping. II. The second sales representative also assured Plainliff that the sub-floor waterproofing system would remedy the wet basement problem. 12. Both Desert Dry representatives represented to Plaintiff that the work to be performed by Desert DQ' employees would be done in a proper, high quality, and workmanlike manner in accordance with their discussions and (a) the proposal, (b) the work order Contract, and (c) the diagram and specifications provided to Plaintiff which illustrated the method and procedure followed for the installation of a sub-floor waterproofing installation system, (A copy of the diagrams and specifications provided to Plaintiff by Desert Dry are attached hereto as Elthibit "B"). 13, The Desert Dry representative provided Plaintiff with sales information that emphasized its "23 years" of eltperience, that its "WORK IS GUARANTEED," and thaI it was "NOT A FRANCHISE NOR AFFILIATED WITH ANY OTHER WATERPROOFING CONTRACTOR." (A copy of the sales information provided to Plaintiff by Desert Dry is included with the materials attached herelo as Elthibit "B"). 14. On that same day, Augusl 27, 1996, Plaintiff Fastiggi signed a form work order Contract provided by Desert Dry for the installation of a sub-floor waterproofing system, (A coW of the work order Contracl is altached hereto as Elthibit "CO). 4M06.0I '112197 -3- , 15, Pursuant to the Contract, Plaintiff Fastillgi promised to pay Dt:sert Dry $2,780,00 in exchange for the installation of the sub-floor walerproofing system, 16. On September 30, 1996, two individuals showed up at Plaintiff's home to install the sub. floor waterproofing syslem, 17, The work performed at Plaintiffs home was actually done by emplayees of a subcontractor, not by Desert Dry employees as represented by the Desert Dry sales representatives. 18. On October 4, 1996, Desert Dry was advised of Plaintiff Fasliggi's total dissatisfaction with the sub-floor waterproofing system and Ihe quality of Ii'.e workmanship, Specilically thaI the workmen: (a) failed to leave the concrete spacers (i.e., original floor) in tact at specific points along each wall; (b) failed to cut the trench in a straight and uniform 12 inches across (width), and failed 10 dig the trench and place the slone in a uniform manner (depth); (c) failed to leave enough space above the stone for four inches of concrete floor, the depth of the original floor; (d) failed to place the synthetic filtration membrane beneath the entire pipe surface to prevent dirt and particles from clogging the pores of the piping; (e) filled Ihe trench wilh a soupy cement and sand mix that was not of the same strength or equal consistency of the original floor, which also created a "rough" service where the 'new concrete floor" came logether with the "original concrete floor." <0 poured cemenl and sand mix around an uncovered sump pump receptacle in a manner that allowed the soupy mix to get inside the brand new sump pump (installed that same day) and 10 harden; and (g) failed 10 treat the walls with a mold and mildew retardant. 4Ij()6015112197 -4- 19. Plaintiff Fastiggi also learned that the work was performed by employees of a subcontractor hired by Desert Dry, not Desert Dry employees as represented to Plaintiff. 20, In mid-October of 1996, Mr. Larry Grallon, the Regional Manager of Desert Dry, and the owner of the subcontracting company that actually performed the work, were invited 10 Plaintiff's home to inspect the work, 21. As a result of this meeting and the inspection of the property, Desert Dry reluctantly agreed 10 have the subcontractor remove the inferior quality cement and sand mix and prepare it for an appropriate 4 inch concrete finish from a qualified concrete contraclor. 22. Plaintiff Fastiggi solicited estimates from professional concrele conlraclors to fill the Irench with a quality concrete finish, and was approved by Desert Dry to use the services of Mike Shaver doing business as Mike's Concrete, 23. Mr, Gratton requested that Plaintiff Fastiggi inform him of the date and time that Mike's Concrete would perform the remedial concrete work so he could visually inspect the preparation of the 54 foot trench and work performed by the Desert Dry subcontractor before Mike's Concrete re-filled the trench with the 4 inch concrete finish, 24. On December 6, 1996, Mike's Concrete of Middletown, Pennsylvania saw CUI and straightened the edges of the trenches and poured and finished the concrete materials to fill the trenches al a depth of 4 inches. 25. Although Plaintiff Fastiggi informed Mr. Grallon of the date that Mike's Concrete was to perform the work, neither he nor a representative of Desert Dry showed up at Plainliff's residence on December 6, 1996. 26. The remedial concrete work cost the Plaintiff an additional $591.00. 48.506.01 j/12I91 -5- 27, The Plaintiff paid ~ total of $3371.00 ($2,780,00 to Desert Dry plus $591.00 to Mike's Concrele) for the installalion of the sub-floor walerproofing sySlem. 28, To date, waler continues to penetrate Plaintiff Fastiggi's basement walls despite assurances and representalions from Desert Dry thatlhe sub-floor waterproofing system would cure this problem, 29. As a result of Defendant's conduct, Plaintiff brings the following claims in support of the damages he has suffered, COUNT I BREACH OF CONTRACT 30. The Plaintiff incorporates herein by reference paragraphs 1 through 29 above as though fully set forth at length, 31. The Plaintiff enlered into a work order Contract with Desert Dry for !he installation of a sub-floor waterproofing system to alleviate a wet basement problem. 32. Plaintiff substantially fulfilled alllerms and conditions of the proposal, work order Contract, and related installation diagrams and specificalions by payment of the original purchase price. 33. The Defendant, Desert Dry, has not fulfilled its obligations under the provisions of the proposal, work order Contract, and related installation diagrams and specifications. 34. More specifically, Desert Dry breached its work order Contract with Plainliff by neglecting to do or performing in a poor, improper, and unworkmanlike manner certain 4I.S06.0I j:f12i91 -6- 37. As a direct resuh of the breach of Contract by Defendant, Plaintiff has suffered the inconvenience and interruption of the enjoyment of his premises and the loss of use of the area in and around Ihe sub.floor waterproofing system. 38. As a direct result of the breach of Contract by Defendant, Plaintiff has further suffered damages in Ihe diminution of the fair market value of his home, WHEREFORE, Plaintiff Fastiggi demands judgmenl against Desert Dry in an amounl in excess of the local jurisdictional amounl requiring arbitration, together with interests and cosls. COUNT 11 BREACH OF EXPRESS WARRANTY 39. The Plaintiff incorporates herein by reference paragraphs 1 Ihrough 38 above as though fully set forth at length. 40, Under the provisions of the work order Contract and through the oral representations of its sales representatives, Desert Dry made an express warranty and gllarantee of its "workmanship and material," and that Ihe installation of the sub-floor waterproofing syslem was of merchantable quality, fit for use, and suitable and fit for a particular purpose, thaI is, it would remedy Plaintiff's wet basemenl problem. 41. Plaintiff relied upon Ihe express warranties of Defendant. 42. Desert Dry breached its express warranty to Plaintiff in thaI the workmanship and material was defective, Ihe sub. floor waterproofing system was nol of merchantable quality, and was not suitable and fit in that it did not remedy Plaintiff's wet basement problem, .u5(~,OI '112J~1 -8. 43. As Ihe direct result of Defendant's breach of its express warranties, Plaintiff has suffered damages as more fully set forth in paragraphs 36 through 38 above, which are incorporaled herein by reference as though fully set forth at length. WHEREFORE, Plainliff Fastiggi demands judgment against Desen Dry in an amount in excess of the local jurisdictional amount requiring arbitration, together with interests and costs, COUNT III BREACH OF IMPLIED WARRANTY 44, The Plaintiff incorporates herein by reference paragraphs 1 through 43 above as though fully set forth at length. 45, Desert Dry impliedly warrantect and guaranleed its "workmanship and material," and that the installation of the sub-floor walerproofing syslem was of merchantable quality, fit for use, and suitable and fit for a particular purpose, thaI is, it would remedy Plaintiff's wet basement problem, 46, Plaintiff relied upon Ihese implied warra.uies of Defendant, 47 Desert Dry breached its implied warranties to Plaintiff in that the workmanship and material was defective, the sub-floor waterproofing system was not of merchantable quality, and was not suitable and fit in that il did not remedy Plaintiff's wet basement problem. 48. As the direcl result of Defendanl's breach of its implied warranties, Plaintiff has suffered damages as more fully set forth in paragraphs 36 through 38 above, which are incorporated herein by reference as though fully set forth at length. .A506.01 S'I2i97 -9- 5 I. Under Ihe UTPCPL, Plaintiff is entilled 10 recover up to lhree times lhe actual damages of Defendanl's improper conducl. logelher with allorney's fees and costs, 52. Plaintiff has suffered actual damages as more fully set forth in paragraphs 36 through 38 above, which are incorporated herein by reference as though fully set forlh al length. WHEREFORE, Plaintiff Fastiggi demands judgment against Desert Dry for three times the actual amount of damages, logelher with allorney's fees, interest, and costs, an amount in excess of Ihe local jurisdictional amount requiring arbitration. Respectfully submilled, SAUL, EWING, REMICK & SAUL % F ~~'- /fohn F. Duggan, E uire Allorney I.D, No. 73074 240 North Third Street, Suite 700 Harrisburg, PA 17101 (717) 238-7674 Allorney for Plaintiff Michael C. Fastiggi DATED: May 12, 1997 '_,01 ~/12/91 -11- r ",-:>~)"~\ ' \~ / t>'-v~ ) c~~ // Photle "'~- 111.181.9300 ~ Desert Drt" Walerproolln9 01 Cenlral Pennsylvania, Inc. 1 h9 Bhch Building \ of Ihe Wast Shme Olllce pa'k\ 5010 Lenker Sheql ' Mechanlcsbulg, PA t 1055 """ PROPOSAL pertains to total footag., z walls and S-L/(i-) GUARANTEES the wall and floor .ystem .hall b. warrant.d for as long ee the homeowner holds title to the property. This warrenty m~y elso be trsnaferred to the next homeowner when the property Is eold, Thls wauenty Includes f'REB LABOR AN\) IlATERIALS, COtttlERCIAL PUtlPS shall be warranted aa per manUfacturer's warranty of one year, COHPLETE S'!STEtI meets FilA VA or CONVENTIONAL mortgage "CERTIFICATE OF DRY BASEHEHT." ..... WALL SERVICE the existing concrete floor edge shall be removed approximatelY 12 Inches out from the edge of the wall. (Footer must clear 8"), The bottom blocks are to be exposed, drilled and bled of any water that may exist during day of eervlce, These BLEEOER HOLES are to be left In place, once the blocks are properly bled, the lower blockS will be treated and the crew will Install DESERT DR'! POL'tHER1C wall system along the facing of the lower wall and edjacent to the floor edge, ENGINEERED CONCRETE SPACERS shall be left as necessary and practical. . ThIs system Is designed to efficiently serve as an emergency backup syetem to permit finishing ~f,the wall area. '. FLOOR SERVICE once the floor Is cut and a trench path Is excavated the crew will Install a synthetic filtration membrane In the trench. they will then Install DESERT DRY'9 sub-floor pressure relief system, Haterlals shall consist of large washed gravel, 4"A.D.S, flexible called perforated piping, a cover of polyethylene for a vapor barrier, and the floor slab shall be replaced using a concrete mix with CFP Fl8ER (10,000 pol fiber tensile strength). All debrIs will be removed and the serviced area will be broom cle~ned ~nd the walls will be sprayed wIth a mold and mildew retardant. "" TOTAL lflVESTIIE/lT for the above deocrlbed servIces: $ .~.fO ::'7') '70(\ ___) I _ '- tIC g~ (.!)-c -ld CCCll S i '"" --l t ~ ~ .. .. Q ...., '" ~~ , .... ..., Q ,,~ .; 'ti ,. , " . ''. , ',,I.., '. . .t . , " " , , '. . '\l ' ,"" . ~ ~ ~~~I~ ~ ~ \1. ~C) ~ I all \.\ I.J ~'" ~a! ~ ~ ~ 8 \c--~d r\J'O y.~~ ~ ... , , u . ~ ... ~ . .. \. ('tl~ ~ ~ n." \J ~~...... ~ Wo '~ ~'t: ,d.' . A.D.'::'. ~~n:: 4C:1.f' ~ltJo PII'I ~Iu:.. Zl::> ClEAjJ EWe-W^"=+!W ~e ~{ ! - .-.--..-- ~-------_. ---- -.--... '1-', ~: .. '......... . .....: .. ." .' , .., .. .... .: ::. '- .,'" . . . ., ;.....: .......... ". .._.i . . _.',.. ":' . . '. .r'c:.~- .: .' ..' ,.' .. ,'~".'. .",.. ,H...._'.". . I' ,.,. . .' WK \vOULU UK!!: '1'0 ItHllOUUC(t; OUIlHI~I.VI'~'i OESEnl' L'nr \V^"!IlrIlOOflNO CllMrMIY 15 OWlleu Mllll1run^, I!P IIV "II MIll M^,lflAIlIlI'III!II'I' ^"" ~lltl~ VA \'111 NJU NJMl. OVEn HIP rAH 1) ynAII.".. uesCRr DRY lIAS S^lISI'lUIJ UVUK 11l,IKKI L1JSIIIMI!Il~ Willi II1F.IR NO. T1MB-UMlr,OUARANIEI!UUR\' ILhUIBIH. IF \'ou "AVE l'.xrEnJpJICElJ ^ WnT 8t\sUIBtrr FRoM 11MB TOIIMB SOll1AT yoU W!!"I! MAAIIJ'IU I-IIlISII I" OR FUf\JiISlIl r, rSRJlArs WI! CAN /lEU. ' A VIlV nMHIEtfT OlV'!' yOU FU!ASUn.B NOW MID lUlrURNS lIIB COSU W1U!N YOU SELL D\' oan INO 1 III! fUu..lllue VA!.UeOFIllE/lOMB. . OESFllr 1'/\ \' omn, v /I. ... F.lIA rnorEnry ct!nllnCAIJOIls. we seRvB Rl!SIVBmIALANO coMMERCIAL CUSJOMERS AS WELL AS AU.. OOVJ!RNMJ!Nr AOBIlCI.I!S. OllR rRlcP..' ^M TNR ClIO ro~tr\lJJtJVB. BANK FIIIANCINO IS A AlLABLS. pp nPJr, . Munbtr, SocltlJ 01 Amulcu MDIU" e...lnun lYE' AnE NOr A FrtANCll/SE NOR AFFIUA TEV \VIm ANY OTHEn \VII TEnpnOOFING CONTflACIOn. D~ eSel4t MEMBERSHIPS: It1I11 I"''"H.I'''.... CIrlllltd Will.."..,." Ce~..d... At.... ,ocIoty of MIIaty I!","H'" 11..n "'ond Cll_"" of Com...... Nllll~"'" ofHom.ltN... .,o.p.m.....At...,.. Or._ ,,.,. D;r'I' WllleJprooOng & roumlaUon llepn1r Contraclors lVIAIUNO SICI{ BASEMENTS WELL IS W.HAT WE DO... SUCCESSFULLY FOR THE PAST 25 YEARS DUIlI Dry ollt" VA and F.II,,," prnp<<lV ell. ~1Ic"""', ..r-.lna ".Id.n'" and eommerdP/ e\lI. ~... lit ""I at ao..mm....11fg.nd... The~ ptle.. .n fLIr trod compeUIv', and bank ftnandna It .vallebI.. nit' lIwIyt """"..Ire to Nch IIld ...ry CUllom" ...1 you he.... 111" All WDlId"9 dor' 10 _.Id.r ClW1C'~'lI1l1Y con!J.t .Igntd .1 t>om., (thor.... .."'~ ^ dty bonm.nl'" l""" homa g...... ~ pl...UII noW .nd ..m ,alllm ,.. eoIt "',.... you .an, bI. coun you ..m ... goJn/r'9 I.. Mu.. .... vtlUI 0' your hom.. lIon1 P'Y ~ ,p'" 1..1 ooofd b. und lJt blur 'vin9. lIon11g""'" problom ~,o' eoutd COIl rou '.""and. 01 do"OIl ., ",pol. '010.. CJIJI o...rt Dry '11-300-238,88118 lJt . h. n' ~mol. 0'''''0111 ..m '''''' b '..I.... \,our dlllk, d""'p bo,omonllJt IlIm"r hll'9. You /la.. nolHng .. 10.. but . .... ba.."",nL lh. coull 0' MIl boum.nl "",bl.m. ...ry front ""'" '" h""". ~tony pro"'IIf11' do nol .1- up ~ ....,., r'"" ."" Itl. haun ".. bu"L 1'" bu"dtr mry ho.o .ub-eonlrlc1ed I.. 'J'IlIlca. lion of 0" 'n.""n".. 1... ..,0' en 'If wall. ..., /Utt ron.d... bundlng cod., Of," CIUut un Includl blclcU 118' mil'( ha"" .".,111r1<ld d.t1I. 'om Iltl bundl"ll tn. (.uch II Mn' bI. and ror'''' 1",I'ntolr...d "'Ih ,.ore. .""'r- lion, Of ". g,odlnG ..,d ,.,.etlon oil,. buIIdnG ,II. ",oy ho... bien p<X'fly pl.",,",,, ' ~'o.... "olu" ",oy It<v' ployod . 1'0'1 h your ,.obl,,,, "'Ih )'0"' b..,m...'" lndllglOcncl ",,1110' d"lnOfd eol.1U Dr tf '''I roct. .pr."d. Ev,n te,~ ,"11ft In ,.. I:>unda~on .." cau.. ". ",obI.m 01 · "'I bltoment. . Cen'c8ng 81' p'o~I.m ...Iy "'" to"" IlOuoand. or doll... In dtmoQ'f 10 ~10 foundodon duo ro hydro'lftlle ,..'''\111 'II'" CftU'!' '18 ft''''11 ., crltk. buckl. Of thl". .. ""II .. oddlllonollo"" ,1lI- IIIn.d "om .......18' d"m"Qt to h."""" 'rtlflmt, ~ plllU1tf'. I"od II... "'lId......d ..P" .nd 10.. of fl. ruI UII or your baum.nL OUR WORI< IS GUARANTEED WITHOUT TIME LIMIT CALL ANYTI1\'IE '117':"/GI-93UU yOU HAVE NOTHING TO LOSE BUT A WET BASEMENT . . , ALL METHODS · BACKHOE EXCAVATION · NO DIGGING · DRAIN TILE &, PUMPS ' STRUCTURAL SUPPORTS Desert . Dr~ WATERPROOFING & STRUCTURAL REPAIR . ,CONTRACTORS . 717-761-9300 , 1/lollt do"s a wet basement or cracked walls mean to you? I' ' LlISS or property value? LUSS or lI.cclla n I ca Is, lIeat, ^C, eledriclll systems, etc,' LUSS of capHal assets. appliances, etc. LOSS of personal property LOSS of structural Integrity LUSS of usable space LOSS of health. allergies, Inllects. etc. LOSS of sale or forced "^S-19" sale NOI/ 19 'I'll'; T I liE TO CIIECK YOUR BMEtlENT Bnnement Inspection analysis chart lnstructlonsl I. Circle nun.lJerll which describe thll prohlemll 2. rl"r.p. numbers on diagram showing where problem exllltll I, 2, J, 4, 5. fj, ? . ll; 9, 10, 11. 12. 1.1. '.1, I ~. Iii, II. III, lIydrostatic rressure C",pJllarlty . 1I1'~h lIater Table SoIL Condl tlon crncl(ed Walls Crncked rloor Itall tlolsture rllnqull Poor IIasonry ''''proper Waterproofing Uo.,,!d Walls CO",! Leaks Paint Blisters till dr?II ,",,,'ct l'. Vermin lne Ilterlltion F:Cflllrescent tln,I'.nr !Jet.erlorat.lon 1I0ll'!y-combed Cement 19. 20, 21, 22. 23. 24. 25. 26, 27. 2B. 29, 30, 31. 32. 33. J<t, 35. 36. Sandy lIalll1 Seam Infiltration ^ppll~nce Rusting SettlIng Problem Rusty Residue t10leture Odor outside Crackll lIindow Wellll StOOpll & stairways Chimneys WlIrped plIneling Crllcked/Lifted Tilell Lolly Colum Postll Tie Rod Leakll Beveled rloorll Uisintergflltlng Block Dampness Water Vapor ----------------------------------------------------------------- Sketch uf Uasemen!:. FRONT '... /,-~'~ D ~rt Drtp The Birch Building ese of the West Shore Office Park Phona 5010 Lenker Street 717-761;9300 Waterproofing of Central Pennsylvania, Ine, Mechanicsburg, PA 17055 Namgt j'j, O(':,;!! I:; '::71')Q Phone: ,??7-I':O 'l Dale: /",1,{ r; 2 f, 19?r ( ,1//:1' ,-..... /' ('.... J, '" .:. I ,::i. C. fJ . J 7/ :::;;- Addre..: 71..-.. \..., 0, r-II/V --,! City: ",',f'C/I it:;' Slate: i 1\ Zip: --'~ ,.- DESERT DRY WATERPROOFING OF CENTRAL PENNSYLVANIA, INC. egrees to fumlsh all materials and illbor necessary to waterproof egalns! se"page, the sub. soil walls shown In sketch below on building located at: 1/0""'- r- _I. 1""'- /,l/ II "r ~ Addre..: ,. I t u ( t<... 1/, '-, ~ / City: /,0(' /J', Slale: / /"- l'!,- co' ') IJ ' ~ CUSTOMER AGREES TO pay a deposit 01 $ /--:0 , , The balance of $ /' ..0' , i'} r-/.- e>:::> shall be paid to contractor on the day work specified herein Is complete. Totel S 2J(-O Zip: J 7" ~r- SKETCH' SPECIFICATIONS CONCRETE .................................... 0' BLOCK,....,."........................,.....,....19"'"" STONE............................................ 0 PANELED .......................................0 OUTSIDE CONCRETE ................... 0 FLOOR SYSTEM INSTALL .........................................0 PROVISION ....................................0 ,,' , 'tl SUMP PUMP .................................. P .. ~:" "" - ROUGHCASTING........................... P ~ ." "/v . 7' 1 -;. ~ ). I 1) I ;d' ~I- ',/, /~, ,- 'O'lJ<>('; 1..... .) l, /. ~ '{ '~! 2" /-''''.(,.0 .", ".?l (I'll- ,"cO::/.f(,../P ..:'! r I!....'.'.~ .... .... . ./ I ,j · -;'-' ./'/, ~ J7rl _.:; ~ i..'J.,~ ..:. .'1.'./ ,;.,," " t J ,~.... ,}! ,~111)"1 rt..JA.-'" ;-'i..,,,'ql /hA1 ,.../ {I Or. I~ . J \ ~{;..\i" il.,/I/ r,) I"'.{ .'.1/ '::11';<''5 ).,s..:- ~ 1"/1':7)1.. (:.),-111 f..li Y Y'iu ;, '" ,I I".-l',. 11"../ ._.,. -, i /1 .,r.. " '...1t....,.'t':..~.... ....."7'-0'_( T{;O;V' .....r _rj4 In accon1ance with lerma and condiUonl hlr,inatt" III lorth. a'"t1 Ory Wlltrprooflng ot Central Pennsylvania, Inc. Will inlt.U . P'IIIUI, ,..:ef wattrprooflng .ystem c:onsilllog of perforlted P'IM. lion., mort'f, lump pumpa , pump COf\Wn.... .1 required. Concrete IIoof wll' be broken II OIC.ssaty. DI..n Dry wiU not be ruponliblt lor nltCelsary lil, destruc:tion nor damage to carpeUI1il. L______y:. - , . --- ,"':'. Y ...... "~ ;. ,I~, (:.j(.. . ; ~ ., ..;...... , 1--: , ,.J .'i -~~. .- , -:" I !'/ ~'~fi ./'., -" '.j ,1/ rl !! .!~..~ i=T /.. . 'I,.' . ~ '_.'<.,1." P 'I _I :/~..r .: t,c/v .-1 .j"~("" . ',"" J'! ,I - Guarani" - W, IlUlIdnlll our ...orlaruJ/lIhlp and mOIlrl4IIDr Ih. .nli" p.riDdDI t1m. In ..hlch /h, cu,lDmIT hDIds lili, tD /h. prDp'", o,ainsl ...at" p,n,l1'tJJin, Dnlylh, IUb.'DII ...u, CDV' (wh." JlDDr mu!, w./I) .nd Imm.diart fIoDr .". ...lIhin (3) 1'" DI ...UIlS 'ptc/fl.d hIT,i.. Dnd . prtJlurc nll,1 systlm Iuu b,," Installed. This guaronltl 40'1 not ptrtain 10 r/ampntJl ctJUSld by condmons WI cannol con"ol such as humldily, t,alein, pipls, lie. On oil ",al,d homts DESERT DR Y "quir,s Ih, oUllnt 10 b. apostd abovI Ih, flOaT b,/orc work is p,r/orm,d.. CwlOmtr 10 '"Ppt, lI,ctrlcal aullds 10 op"atl lump pump(s). If walls or, stont, 10lUl broc*, mud filltd bloclt, aT brIek "ndl ~ontractnr 'V" dttms roughcasting 0/ walls Is "'Clllary; conlractor will f1tum and roughcast Ih, walls at an additional cMr" 0/ $ I .I/. ,; pIT SqlUJT' loa' around plrimtltr or paTU Ihtrlof. If Stlpagt continutf In thIS<< specifitd aTlas afttr all ImllJllalio1U havI b"n compltt,d. contractor 'U4TdlttltS ,hal Ih" wiU connnu, 10 work on Ih'lI alfecttd aTlas until'hty hdY' ,limin4t.d such s"par' al no addilional cost to Iht cuslomlT. This ,uaranl" shall b,eom, tlJeenvt upon customers full complwne. with tll. abovI 'taud paym,nl (Inns. Contract ,ubj.el to "nns 4nd cDndilions prinl,d Dn Ih. "vrrsllld.. BUYER HAS RiGHT TO CANCEL WITHIN (3) WORKING DA I'S BY GIVING WR/7TEN NOTICE. GUARANTEED FOR THE ENTIRE PERIOD OF TIME IN WHICH THE CUSTOMER HOLDS TITLE TO THE PROPERTY. NOTICE TO CUSTOMER. Do not sign this conlract,l blank. You are entilled to a copy 01 the conlract althe time you sign. Keep" 10 prolect your legal rights, I heleby certify tha' I have leceived a copy 01 this conlract. Owner DESERT DRY WATERPROOFING OF CEN PENNSYLVANIA,INC, PLAINTIFF'S EX71BIT ,.- ,.- I;~<::! I'll) -, :/ , ~ ,~/" ,,/// .,." ."',, -, 1'--."::'" n.. ~ , t r .\ '" , TERMS AND CONDITIONS (1) Convact changes or delelions must be approved In wntlng by an oltlcer 01 DESERT DRY 'NA TERPROOFING OF CENTRAL PENNSYLVANIA, INC, ConUaclor reserves lI1e rlghl of relusalto acceplll1is conlfact. (2) II necessary to re,waterprool Irom inside CUSTOMER 10 bare walls and lloor in area Irealed and otherwIse make specolied areas accessible 10 conlractor. CUslomer responSIble lor replacement of same, but CUSlomer shall nol replace until notified of compleUon by conlfactor, (3) Conlfactors liability shall be limited to the re-waterproofing 01 the sub.soil masonry specllled In conlfacl and contractor sholl nOl be liable lor consequential damages. (.) It necessary lor contractor to drill through extenor concrele, lIagstone, asphalr. wood or any substance olher Ihan earth, cootractor WIll repair to lI1e best vI his ability, bul will assume no liability lor damages to same. (5) Conlractor assumes no liability tor damage to underground pipes, drain lines, wiring, ranks or other non.vlsible inslallalions, unless notilled by customer ;n writing at !he exislence 01 such items pnor to convnencement 01 work. (6) It pressure relief fioor system is installed Inilially or at a laler dale, the materials and melhod(s) Ulillzed shall be at Ihe SOle dlscrelion 01 conlractor, It floor system is installed, such installation will be above and/or below Roor as contractor deems necessary. It floor is opened and lI1e thickness at the concrete exceeds four inches the conlfaclor at his discrellon Will close the floor, return Ihe deposil and cancel the conlract. (7) If sump pump Is Inslalled, sump pump discharge hose shalllerrninale al immediate exterior 01 wall above grade level in any ~rea coolfaclor deems most deSirable, unless otherwise specified If, contract. Sump pump(s) guaranteed by manufacturer's guaranlee only, If addillonal sump pump inslallallons are ever reqUired, the charge to cuslomer will be at the then preva'ling rale lor same, (8) We do nol guaranlee against condilions over which we have no conlrol, such as strUClural damage or conditions 01 sub.sorl masonry, or from damage caused by olhers, nor for lire. Iloods. backing up 01 sewer systems or acts of God, We assume no responsibility whalsoever lor any damage 10 the intenor of any bu,lding, nor to ,ts contents claimed to be caused by water seepage. This guarantee is not aSSignable except by wnnen consent of lI1e conlraclor, (9) Customer agrees Ihat prior 10 the paymenl,n lull of said conlfact and/or nOle, the said premises improved hereunder will nol be sold, mortgaged, assigned or otherwise removed or disposed 01. In Ihe event Ihat Ihe torego'"g covenant Is violated, customer agrees 10 pay immediately 10 the conUactor, or the holder of said contract and/or note, the entire unpaid balance due thereon. (10) Guarantee can be transferred to one subsequent owner upon payment of len percent of the anginal pnce. This lee Is waived it property is sold Within one year of the contract date, . (11) ConlfaCtor shall have the right to sell, assign and Iransler this conlract. nole and olher inslfuments executed by the cuslomer, (12) If this Installation is financed and customer signs HOME IMPROVEMENT INSTALLMENT CONTRACT, all terms and conditions in such HOME IMPROVEMENT INSTALLMENT CONTRACT, 10 the eXlentlhey are inconsistent Wllh terms in Ihis contract. shall take precedence. All terms and conditions in this contract not ,nconslstent WIth the ~errns and condillons of such HOME IM,"'ROVEMENT INSTALLMENT CONTRACT shall remain in lull force and eltecl. (13) In the event that customer shall apply lor, but not quality [or. financing, cuslomer shall furnish contractor with evidence satlslactory to conlfaClor of the ability of cuslomer pay lI1e tOlal conlfacl price, or such failure to quality for finanCing shall be considered a refusal by customer 10 permil contractor 10 proceed With Ihe wor1< under this contract pursuant to paragraph one (1) above. (14) If customer lails or refuses 10 deliver 10 Ihe order of the contractor the documents required for finanCing, the full amount 01 the balance shall forthwilh become due and payable on complelion of work specllled in lI1is contract at 1I1e oPlion 01 Ihe contractor. (15) If any additional work, as spec' lied Within guarantee of Ihls contracl, ever IS reqUired, customer shalllurnish conlfactor with evidence salislactory to contractor 01 Ihe ability 01 customer 10 pay for said addilional work, or such lallure by customer shall be conSidered a refusal by customer to permit contractor [0 proceed With the work under this contract and this will release contractor from all liabilities and obligations extended to customer under this contract and Ihe guarantee herein. (16) ThiS guaranlee shall nol be In lorce unlll all payments to contraclor have been met Guarantee can be transferred to one subsequent owner upon payment of ten percenr at the anginal price, If approved by contractor at time of settlement. (17) In the even I customer shall, prior to the commencement 01 any work by contractor, reluse to permit contractor to proceed with the work speCIfied herein, customer shall pay contraclor 25% cA the contract price as liquidated damages. plus reasonable attorney fees, In the event customer at any lime prior to the compietion 01 work by contractor shall refuse to permit conuactor to proceed With the work, CuSlomer shail pay contractor the costs incurred by the cootractor for labor. materials. commiSSions or other expenses. plus 25% 01 the contract price as liqUidated damages, pluS reasonable anorney's lees. In no event shalllhe liability 01 the customer under tillS paragr.aoh, ~xcJuslve of attorney's lees, exceed the total contract price (18) On Slone. solid bleCk, mud Iilled blOck or brick foundations, COn/ractor shall only be responSible to sar/lce the seepage through. the !laer syslem unless the walls have oeon rougnc.J51erJ as Dart ot tl11$ agreement (1~) 5tH'ilea ~aHs for cOnllnUlng seeodr;e QrohJems N!lf De made WIth no Jcl(lIflonaJ ch,1rqe to ';:.JstOfTl~r. Mr.::wever, It COniractor finds the prQbJt;rr1 In 10 unquaran!ee(j J;e:j '3 If ~~rr)Qlern IS not .](1 actual 5eeO,H]C problem (:;ucn -1S !ed1qf'lg Pl~)f~g, condensatlon, high humld:ly ';,~",,':f (.h;lCk-UD'i, Uf1plu,_;r;e'J SL;f;;O PU(fit), ~J!c). (il('fl COI1!ractGr r~~,epIeS It,.:: qqn! ~'-' ct!;uq.:\ (IJstC(ner a $]5 leI:: lor an)-' unn'2'.::e'~", J"f .o'J;'i:f>~ ,'-:que';t:; . Mlr.BAEL c. rAmGGI, 'IaJDtllr I IN THE COURT or COMMON .LEAS I CUMBERlAND COUN'lY, PENNSYLVANIA I I I I I NO, 97,1016 CIVIL TERM I I JURY TRW.. DEMANDED y, DESERT DRY WATERPROOFING or CENTRAL PENNSYLVANIA, INC, DefeDdaDt DEFENDANT'S PREUMINARY OBJECTION TO PlAINTIFF'S COMPlAINT NOW COMES, Defendant, Desert Dry Waterproofing of CenlraI Pennsylvania, Inc., by ill attorneys, MILSP A W & BESHORE, and mes Ihe following Pre1iminary Objection to the Complaint herein: I, Motion to Strike Demand "ID excess or locallurlsdlctloaal amount reoulrlDll arbltratloD" In All COUDts 1. This dispute arises from Plainliffs contract with Defendant for the provision of certain basement walerprooflng services inlended 10 repair a "wet wall problem in his basement" for the total sum of $2,780.00. (Complaint Paragraphs 3,14-15; Eldtibit C) 2. The Complainl alleges Ihat Plaintiff also incurred $591.00 in expenses for "remedial concrele work", (Complaint Paragraph 26) 3. The local jurisdictional amount for compulsory arbilration II S:zj,OOO, (Cumberland County Loca1 Rule 1301-1) 4, The gravamen of Plaintiffs complaint is that "water continues 10 penetrate Plaintiff Faatisgi's basement walls despite assurances and representations from Desert Dry that the sub-floor waterproofing system would cure Ihis problem' (Complaint Paragraph 28), i.e" that his basement is Ihe same as II was before the work was performed by Defendant, S. Plainliffs Complainl is in four counts, alleging (1) Breach of Contract; (2) Breach of Express Warranty; (3) Breach of Implied Warranty; and (4) Slatulory Violalion of the Pennsylvania Unfair Trade Practices and Consumer Proteclion Law, 73 P.S, ~201-1 et seq, 6, There are no damages alleged or possible under Plaintifrs complaint and causes of aelion which would allow Plaintiff 10 recover an amount in excess of the local jurisdictional amount requiring compulsory arbllralion. WHEREFORE, Defendant respectfully requesls thaI Plaintiffs demand in excess of the local jurisdictional amounl requiring compulsory arbitration be stricken. Respectfully Submitted, MILSPAW & BESHORE Datc: "//1(57 ~1~ &4- By Ma n eshore, Esquire #31979 130 Slate Slrect p, O. Box 946 Harrisburg, PA 17108-0946 (717) 236-0781 Attorneys for Defenuant .2- if JUL 0 9 1997 MICHAEL C. FASTIGOI, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Y. NO. 97-2076 CIVIL TERM DESERT DRY WATERPROOFING: OF CENTRAL PENNSYLVANIA, INC" Defendant. JURY TRIAL DEMANDED ORDER Plaintiffs request for dismissal of Defendant's Preliminary Objection 10 Plaintiffs Complaint is GRANTED, Defendant is hereby ORDERED to answer Plainliffs Complaint within twenty (20) days of execution of this Order, So Ordered, this day of July, 1997. J. ,5, Admil\l:d with the 4ualifkation that the Plaintiff's Complaint is a wriuen document that in it! entirety speaks for itself as 10 liability and damages. 6, Denied. II is spt.'Cilically denied that there are no damages alleged or possible to r"cover an amount in eKcess of the lo~al jurisdictilllk11 amounl re4uiring compulsory arbitration. To the contrary. Plaintiff has alleged alternative measures of damages that supporl his claim for (1) Breach of Contract; (2) Breach of Express Warranty; (3) Breach of Implied Warranty; and (4) Statutory Violation of the Pennsylvania Unfair Trade Practices and Consumer Proteclion Law, 73 P,S, ~ 201-1 el seq. More specifically, the Plaintiff has alleged the following damages: 36. As a direct result of the breach of Contract by Defendant. Plaintiff has suffered damages of $3,371,00. the amount of money he has paid for a sub-floor waterproofing system that does not work. and the approximate amount it would cost to replace or remedy the defective work. 37, As a direct result of the breach of Contract by Defendant, Plaintiff has suffered the ioconvenieoce and interruption of the enjoyment of his premises and the loss of use of the area in and around the sub-floor waterproofing system, 3K As a direct result of the breach of Contract by Defendanl. Plaintiff has further suffered dama~es in the diminution of the fair market value of his home (emphasis added). Paragraph 36 alleges damages for estimaled replacement costs. whereas paragraph 38 alleges an alternative basis of damages: "the diminulion of the fair markel value of [Plaintiff5) home." The Fair market value of Plaintiffs home may be affected by the "inconvenience and interruption of the enjoyment of his home and the: loss of use of the area" as set forth in P'dlagraph 37 of Plaintiffs Complaint. BOlh rfplacement cosl iIll1 diminution in market value are recognized measures of damages. PelUlSylvania, has likewise adopted the view that damages for the breach of a repair or construction contract may be measured by the diminution in value. ~ e..i.. Parsons v. Beaulieu. Me.. Builders. 1m: ("Damages for defective [seplic system insrallation in new house] may be measured either by the difference in value between the value of the perfonnance contracted for and the value of the performance actually rendered, or by the amount reasonably required to remedy the defect."); ~ illso Gadbois v. l.eb-Co Builders Inc. 312 Pa. Super 144, 458 A.2d 555 (1983); Miller v C P. Centers. Inc , 334 Pa. Super. 623, 483 A.2d 912. 915 ("The measure of damages for injury to property is the cost of repairs where that injury is reparable: however, where the injury is characterized as pennanent, the measure of damages becomes the decline in the fair markel value of the property. "i. The Plaintiff has alleged damages for the diminution of the fair market value of his home and, these damages. may very well exceed the jurisdictional compulsory arbitralion amount of $25,000. Moreover. under the Unfair Trade Practices and Consumer Protection Law. Plaintiff is entitled to recover up to three times the llktIIiI.l damages of Defendant's conduct. together with attorney's fees and costs, Therefore, assumine for purposes of this argument that the diminution of the fair market value of Plaintiffs home was only $8,334, his claim for damages would still exceed the jurisdictional amount requiring arbitration because of the treble damages provision ($8.334 x 3 = approximately $25.002.(0) of the UTPCPL. '.. ," r " tll' ,,, < , <-- " " (.J v:) L.! I " .' L f .. ',.. " , , "- U U' U II . t t!JUL 091997 MICHAEL C. FASTlGGI, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL V ANL". v. NO, 97.2076 CIVIL TERM DESERT DRY WATERPROOFING: OF CENTRAL PENNSYLVANIA, INC., Defendant. JURY TRIAL DEMANDED ORQER Plaintiffs request for dismissal of Defendant's Preliminary Objection 10 Plaintiffs Complaint is GRA1'ITED. Defendant is hereby ORDERED to answer Plaintiffs Complaint within twenty (20) days of execution of this Order. So Ordered, this day of July, 1997. J. 5, Admilled with the qualification that the Plaintiffs Complaint is a written document that in its entirety speaks for itself as to liability and damages, 6, Denied, It is specifically denied that there are no damages alleged or possible to recover an amount in excess of the local jurisdictional amount requiring compulsory arbitration. To the contrary, Plaintiff has alleged alternative measures of damages that support his claim for (I) Breach of Contract; (2) Breach of Express Warranty; (3) Breach of Implied Warranty; and (4) Statutory Violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P. S. ~ 20 I-I et seq. More specifically, the Plaintiff has alleged the following damages: 36, As a direct result of the breach of Contract by Defendant, Plaintiff has suffered damages of $3,371,00, the amount of money he has paid for a sub-floor waterproofmg system that does not work, and the approximate amount it would cost 10 replace or remedy the defective work, 37. As a direct result of the breach of Contract by Defendanl, Plaintiff has suffered the inconvenience and interruption of the enjoyment of his premises and the loss of use of the area in and around the sub-floor waterproofing system, 38. As a direct result of the breach of Contract by Defendant, Plaintiff has further suffered damal1es in the diminution of the fair market value of his home (emphasis added), Paragraph 36 alleges damages for estimated replacement costs, whereas paragraph 38 alleges an alternative basis of damages: "the diminution of the fair market value of [Plaintiffs] home," The fair market value of Plaimiffs home may be affected by the "inconvenience and imerruption of the enJoymem of his home and the loss of use of the area" as set forth in Paragraph 37 of Plaimiffs Complaint. Both replacement cost iIllil diminution 10 market value are recognized measures of damages, Pennsylvania has likewise adopted the view that damages for the breach of a repair or construction contract may be measured by the dimmution in value. Sl:s:~, Parsons v Beaulieu Me Builders Inc ("Damages for defective [septic system inslallation in new house] may be measured either by the difference in value between the ..atue of the performance contracted for and the value: of the performance actually rendered, or by the amount reasonably required to remedy the defect. "); Sl:s: alsQ Gadbois \' Leb-Co Builders Inc, 312 Pa. Super 144, 458 A,2d 555 (1983); Miller v C P Centers. Inc , 334 Pa. Super. 623,483 A,2d 912, 915 ("The measure of damages for injury to property is the cost of repairs where that injury is reparable; however, where the injury is characterized as permanem, the measure of damages becomes the decline in the fair market value of the property. "i. The Plaimiff has alleged damages for the diminution of the fair market value of his home and, these damages, may very well exceed the jurisdictional compulsory arbitration amount of $25,000, Moreover, under the Unfair Trade Practices and Consumer Protection uw, Plaimiff is entitled to recover up to three times the as;wAl damages of Defendant's conduct. together with attorney's fees and costs, Therefore, assumini for purposes of this argument that the diminution of the fair market value of Plaintiff's home was only $8.334, his claim for damages wouid slill exceed the jurisdictional amoum requiring arbitration because of the treble damages provision ($8,334 x 3 = approximately $25,002.00) of the UTPCPL. CERTIFICATE OF SERVICE I, John F, Duggan, Esquire, hereby cenify that a true and correct copy of the foregoing Plaintiff's Response 10 Defendant's Preliminary Objection 10 Plainliff's Complaint was served this 8th day of July, 1997, via first class mail, postage prepaid to the following counsel of record: Marvin Beshore, Esquire Milspaw & Beshore 130 Slate Street Harrisburg, PA 17101 SAUL, EWING, REMICK & SAUL ~ F h~~-' Ie F. Dug'g;n, ~quire Anorney I.D. No. 73074 240 Nonh Third Street, Suile 700 Harrisburg, PA 17101 (717) 238.7674 Anorney for Plaintiff Michael C. Fastiggi . J JUl 0 t 1991 MICHAEL C, FASTlGGI. Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v, NO, 97-2076 CIVIL TERM DESERT DRY WATERPROOFING: OF CENTRAL PENNSYLVANIA, INC., Defendant. JURY TRlAL DEMANDED ORDER Plaintiff's requesl for dismissal of Defendant's Preliminary Objeclion to Plaintiff's Complaint is GRAI'ITED, DefendaOl is hereby ORDERED to answer Plaintiffs ComplaiOl within twenty (20) days of execution of this Order. So Ordered, this day of July, 1997, J. 5, Admined with the qualification that the Plaintiff's Complaint is a written document that in its entirelY speaks for itself as to liability and damages. 6. Denied. It is specifically denied that there are no damages alleged or possible to recover an amount in excess of the local jurisdictional amount requiring compulsory arbitration, To the contrary, Plaintiff has alleged alternative measures of damages that support his claim for (I) Breach of Contract; (2) Breach of Express Warranty; (3) Breach of Implied Warranty; and (4) Statutory Violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P,S, ~ 201-1 et seq, More specifically, the Plaintiff has alleged the following damages; 36, As a direct result of the breach of Contract by Defendant, Plaintiff has suffered damages of $3,371.00, the amount of money he has paid for a sub-t1oor waterproofing system that does not work, and the approximate amount it would cost to replace or remedy the defective work, 37, As a direct result of the breach of Contract bv Defendant, Plaintiff has suffered the inconvenience and interruption of the enjoyment of his premises and the loss of use of the area in and around the sub. floor waterproofing system, 38, As a direct result of the breach of Contract by Defendant, Plaintiff has further suffered dama~es in the diminution of the fair market value of his home (emphasis added), Paragraph 36 alleges damages for estimated replacement costs, whereas paragraph 38 alleges an alternative basis of damages; "the diminution of the fair market value of . [Plaintiff's] home." The fair market value of Plaintiff's home may he affc'tcd by the .. inconvenience and interruption of !he enjoyment of his home and the loss of use of the area" as set fonh in Paragraph 37 of Plaintiff's Complaint. Both replacement cost aIIl1 diminution in market value are recognized measures of damages. Pennsylvania has likewise adopted !he view thlll damages for the breach of a repair or construction contract may be measured by the diminulion in value, 5<< ~, Parsons v Beaulieu Me Builders. Inc ("Damages for defective [septic system installation in new house] may be measured either by the difference in value between the value of the performance contracted for and the value of the performance actually rendered, or by the amount reasonably required to remedy the defect, "); 5<< a.ls.o Gadbois \'. Leb-Co Builders loe, 312 Pa. Super 144,458 A.2d 555 (1983); Miller v C P Centers Inc, 334 Pa. Super. 623.483 A.2d 912, 915 ("The measure of damages for injury to propeny is the cost of repairs where that injury is reparable; however, where the injury is characterized as permanent, the measure of damages becomes the decline in the fair market value of the propeny, "). The Plaintiff has alleged damages for the diminution of the fair market value of his home and, these damages, may very well exceed the jurisdictional compulsory arbitration amoum of $25,000, Moreover, under the Unfair Trade Practices and Consumer Protection Law, Plaintiff is entitled to recover up to three times the Kllla1 damages of Defendam's conduct. together with anorney's fees and costs. Therefore, assumini for purposes of this argumem that the diminution of the fair market value of Plaintiff's home was only $8,334. his claim for damages would still exceed the jurisdictional amount requiring arbJtration because of the treble damages provision ($8.334 x 3 = approximately $25.002.(0) of the UTPCPL. : ft CERTIFICATE OF SERVICE I, John F, Duggan, Esquire, hereby certify that a lrue and correct copy of the foregoing Plaintiffs Response to Defendant's Preliminary Objection 10 Plaintiffs Complaint was served this 8th day of July, 1997, via first class mail, postage prepaid 10 the following counsel of record: Marvin Beshore, Esquire Milspaw & Beshore 130 Stale Street Harrisburg, PA 17101 SAUL, EWING, REMICK & SAUL ~'- r: .F-~{j'- ~ ~ F. Duggan, fsquire Anomey 1.0, No, 73074 240 North Third Street, Suile 700 Harrisburg, PA 17101 (717) 238-7674 Anomey for Plaintiff Michael C, Fastiggi & JUL 0 9 1997 ~. f MICHAEL C. FASTIGGI, Plaintiff. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA f ~f I v. NO, 97.2076 CIVIL TERM DESERT DRY WATERPROOFING: OF CENTRAL PENNSYLVANIA, INC., Defendant. JURY TRIAL DEMANDED ORDER Plaintiffs request for dismissal of Defendant's Preliminary Objection 10 Plaintiffs Complaint is GRANTED. Defendant is hereby ORDERED to answer Plaintiffs Complaint within twenty (20) days of execution of this Order, So Ordered, Ihis day of July. 1997. 1. 5. Admitted with the qualification that the Plaintiff's Complaint is a written document that in its entirelY speaks for itself as to liability and damages, 6. Denied. It is specifically denied that there are no damages alleged or possible to recover an amount in excess of the local jurisdictional amoum requiring compulsory arbitration, To the contrary, Plaintiff has alle~ed alternative measures of damages that support his claim for (I) Breach of Contract; (2) Breach of Express Warranty; (3) Breach of Imp:ied Warranty; and (4) StalUlory Violation of the PelUlSylvania Unfair Trade Practices and Consumer Proteclion Law, 73 P.S, ~ 201-1 et seq, More specifically, the Plaintiff has alleged the following damages: 36, As a direct result of the breach of Contract by Defendant, Plaintiff has suffered damages of $3,371.00, the amount of money he has paid for a sub-floor waterproofmg system that does not work, and the approximate amount it would cost to replace or remedy the defective work, 37, As a direct result of the breach of Contract by Dcfendanl, Plaintiff has suffered the inconvenience and interruption of the enjoyment of his premises and the loss of use of the area in and around the sub-floor waterproofing syslem, 38, As a direct result of the breach of Contract by Defendam, Plaintiff has further suffered dama~es in the diminution of the fair market value of his home (empha~is added), Paragraph 36 alleges damages for estimated replacement costs, whereas paragraph 38 alleges an alternalive basis of damages: "the diminution of the fair market value of [Plaintiffs] home." The fair market value of Plaintiffs home may be affected by the "inconvenience and interruption of the enjoyment of his home and the loss of use of the area" as set fonh in Paragraph 37 of Plaintiffs Complaint. Both replacement cost iIll1 diminution in market value are recognized measures of damages. Pennsylvania has likewise adopted the view that damages for the breach of a repair or construction contract may be measured by the diminution in value. ~~, Parsons v. Beaulieu Me Builders Inc ("Damages for defective [septic system installalion in new house] may be measured either by the difference in value belWeen the value of the performance contracted for and the value of the performance actually rendered, or by the amount reasonably required to remedy the defect. "j: ~ ills.o Gadhois v Leb.Co. Builders Inc., 312 Pa. Super 144, 458 A,2d 555 (1983); Miller v C P Centers Inc., 3:'4 Pa, Super. 623, 483 A.2d 912, 9i5 ("The measure of damages for injury 10 property is the cost of repairs where that injury is reparable; however, where the injury is characterized as permanent, the measure of damages becomes the decline in the fair market value of the property. "j. The Plaintiff has alleged damages for the diminution of the fair market value of his home and, these damages, may very well exceed the jurisdictional compulsory arbitration amount of $25,000. Moreover, under the Unfair Trade Practices and Consumer Protection Law, Plaintiff is entitled to recover up to three times the KlIlal damages of Defendant's conduct, together with allorney's fees and costs. Therefore, assumin~ for purposes of this argument that the diminution of the fair market value of Plaintiffs home was only $8,334. his claim for damages would still exceed the jurisdictional amount requiring arbitration because of the treble damages provision ($8.334 x 3 = approximately $25.002.00) of the UTPCPL ~~UL 0 9 1997 MICHAEL C, FASTIGGI. Plain!iff, IN THE COllRT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA v. NO, 97-2076 CIVIL TERM DESERT DRY WATERPROOFING: OF CENTRAL PENNSYLVANIA. INC.. Defendan!. JURY TRIAL DEMANDED ORDER Plaintiffs request for dismissal of Defendant's Preliminary Objection to Plaintiffs Complaint is GRANTED. Defendant is hereby ORDERED ro answer Plaintiffs Complain! within Iwenty (20) days of execution of this Order. So Ordered. this day of July. 1997. j; J. j J j I I , 1 I I , I i 5. Admitted with the qualification that the Plaintiffs Complaint is a written documem that in its emirety speaks for itself as to liability and damages. 6, Denied. It is specifically denied that there are no damages alleged or possible to recover an amoum in excess of the local jurisdictional amoum requiring compulsory arbitration. To the contrary, Plaimiff has alkged alternative measures of damages that support his claim for (I) Breach of Comract; (2) Breach of Express Warranty; (3) B~each of Implied Warranty; and (4) Statutory Violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P,S. 9 201-1 et seq. More specifically, the Plaimiff has alleged the following damages: 36. As a direct result of the breach of COlllract by Defendam, Plaimiff has suffered damages of $3,371.00, the amoum of money he has paid for a sub-floor walerproofing system that does not work, and the approximate amount it would COSlto replace or remedy the defective work, 37. As a direct result of the breach of Contract by Defendant, Plaimiff has suffered the inconvenience and imerruption of the enjoymem of his premises and the loss of use of the area in and around the sub-floor waterproofing system. 38, As a direct result of the breach of Contract by Defendanl, Plaintiff has further suffered dama~es in the diminution of the fair market value of his home (emphasis added), Paragraph 36 alleges damages for estimated replacement costs, whereas paragraph 38 alleges an alternative hasis of damages: "the diminution of the fair market value of 1 . [Plaintiffs] home," The fair market value of Plaintiffs home may be affected by (he "inconvenience and interruption of the enjoyment of his home and the loss of use of the area" as set forth in Paragraph 37 of Plaintiffs Complaint, Both replacement cost illll1 diminution in . r "1 market value are recognized measures of damages. Pennsylvania has likewise adopted the view that damages for the breach of a repair or construction contract may be measured by the diminution in value. Scl: ~, Parsons v. Beaulieu Me Builders Inc ("Damages for defective [septic system insralhtion in new house] may be measured either by the difference in value between the value of the performance contracted for and the value of the performaoce aClUally rendered, or by the amount reasonably required to remedy the defect. "); ~ alliJ Gadhois v. Leb-Co Builders Inr:, 312 Pa. Super 144,458 A,2d 555 (:983); Miller \' C P Centers Inc, 334 Pa. Super. 623,483 A,2d 912, 915 ("The measure of damages for injury to property is the cost of repairs where that injury is reparable; however, where the injury is characterized as permanent, the measure of damages becomes the decline in the fair market value of the property, H). The Plaintiff has alleged damages for the diminution of the fair markel value of his home and, these damages, may very well exceed the jurisdictional compulsory arbitralion amount of $25,000. Moreover, under the Unfair Trade Practices and Consumer Protection Law, Plaintiff is entitled to recover up to three times the ~ damages of Defendant's conduct. IOgether with attorney's fees and costs, Therefore, assumin~ for purposes of this argument that the diminution of the fair market value of Plaintiffs home was only S8.334. his claim for damages would slill exceed the jurisdictional amount requiring arbitration because of the treble damages provision ($8.334 x 3 = approximately S25.002.(0) of (he UTPCPL. ~::.' ~~ olJ~ !:!l ...:.d~ 6~ e~~~~.~ IE .",1il~~ ot:)~o=- ;~;.;~! ;f~ ~ :2 ~ OJ '3 <5 ~.. r::: \l.ls - ~~ 1J~ ,g ~ l:J . '" ol:l <Il ell ~;J!lil ,9 a.;l ~ 5~~ ::oe - o po MICHAEL C, FASTIOOI, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA v. NO. 97-2076 CIVIL TERM DESERT DRY WATERPROOFING: OF CENTRAL PENNSYL V ANlA. INC.. Defendant. JURY TRIAL DEMANDED PRAECIPE FOR SUBSTITUTE Kindly substitute me last two pages of the Plainliffs Response to Defendant's Preliminary Objection to Plaintiffs Complaint which was filed in the Promonotary's office on July 8, 1997 with me attached two pages. This substitution is due to me inadvertent omission of IWO lines of text from the original Response, Respectfully submilled, I#r 1: J5'tr--. J n F. Duggan, Es ire Attorney ID 73074 Saul, Ewing. Remick & Saul 240 North Third SI., Suite 700 Harrisburg, PA 17101 (717) 238-7674 Dated: July J!L, 1997 Attorney for Plaintiff Michael C. Fastiggi ~~.11!jl''J7 "inconvenience and interruption of the enjoyment of his home and the loss of use of the area" as set forth in Paragraph 37 of Plaintiffs Complaint, Both replacement cost lIIlll diminution in markel value are recognized measures of damages. Pennsylvania has likewise adopted the view thaI damages for the breach of a repair or construction contract may be measured by the diminution in value. See l:,.i..., P2rsons v. Beaulieu. Me.. Builders. Ine ("Damages for defective [septic system installation in new house J may be measured either by the difference in value between the value of the performance contracted for and the value of the performance actually rendered, or by the amount reasonably required to remedy the defect. "); ~ aWl Gadbois v. l.eb.Co Builders. Inc., 312 Pa. Super 144,458 A.2d 555 (1983); Miller v C P Centers Inc., 334 Pa. Super, 623, 483 A.2d 912, 915 ("The measure of damages for injury to property is the cost of repairs where that injury is reparable; however, where the injury is characterized as pem18nent, the measure of damages becomes the decline in the fair market value of the property. "). The Plaintiff has alleged damages for the diminution of the fair market value of his home and, these damages, may very well exceed the jurisdictional compulsory arbitration amount of $25,000, Moreover, under the Unfair Trade Practices and Consumer Protection Law, Plaintiff is enlitled to recover up to three times the lIk1Ual damages of Defendant's conduct, together with attorney's fees and costs, Therefore, assumin~ for purposes of this argument thai the diminulion of the fair market value of Plaintiffs home was only $8,334, his claim for damages would still exceed Ihe jurisdictional amount requiring arbitration because of the treble damages provision ($8,334 x 3 = approximately $25,002.(0) of the UTPCPL. Plaintiff is entitled 10 plead alternative measures of damages and a conclusion as to this amount without a full investigation and discovery is premature at this early stage of the .... L{) , "; ,: t=..- .. 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