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WHEREFORE, P1aintl1Ts demand judgment In their favor and against the Defendant In an amount
not to exceed $25,000.00.
COUNT II
BREACH OF CONTRACT
17. Paragraphs 1 through 16 are Incorporated herein as if set forth more fully below.
18, Defendant contracted to perf'orm all of the agreed upon work pursuant to the terms of the
construction contract mentioned above.
19. The contract maintains certain guarantees,
20. The Defendant breached the terms of the contract between the parties in that it failed to
perform, In a substantial workmanlike manner, the work agreed to by the parties and failed, 88 required
by the contract, to repair the property during the terms of the contract.
WHEREFORE, P1aintl1T demands judgment In their favor and against Defendant in an amount not
to exceed $25,000.00 plus costs of this suit,
COUNT m
NEGLIGENCE
21. Paragraphs 1 through 20 are incorporated herein as if set forth more fully below.
22, Defendant's construction of the home referenced above was negligent and not up to the
standards of workmanship required within the community.
23. Defendant's negligence in failing to provide a home free from defects and fit for human
habitation has caused the P1aintl1Ts to suffer fmanciallosses 88 set forth above which negligence was the
primary and sole factc.r of such fmanciallosses.
7. Contract.or shall warrant that \lark done by Contractor and
his .ub-contractor.. a",.nt. and .mploy... for a p.riod of on. (1)
y.ar from compl.tion of the hom.. provid.d how.v.r. that nothin",
h.r.in .hall limit the manufactur.r. warranti.. p.rtaining to
appliances, eqUipment and materials used in construction.
Contractor shall do whatever is necessary to assure that the work
conforms to the requirement9 of the construction contract durin;
the pro",r... of the work. and to r.medy any d.f.ct. due to faul ty
material. and workman. hip promptly upon r.qu..t th.r.for by Own.r.
8. Po.....ion of the dwelling .hall not be d.liver.d to Own.r.
until it is tot.lly compl.t. and th.y have paid Contnctor this
full contract price plus any additional comp.n.ation for addition.
to the contract or extras under this Agre.ment, and minus
deductions from the contnct price for del.tions or .ub.titutions
under this A",reement agre.d to by the parties hereto.
g. Own.rs shall carry fire in.urance for the full value of the
contract. Policy shall b. no l..s than a broad form dwellin", or
hom.owners policy namin", contractor as an additional in.ur.d.
Contractor wi 11 secure publ ic liabil ity insurance and bodil y injury
in the amount of $100,OOO{$300.000 and property damage in the
amount of $200,000,00.
10. Contractor will pay the expense of securing temporary
electrical service to be used durin", construction and .hall be
responsible for the cost of .lectrical usage during construction.
11. Owner agre.s to pay any added costs for equipment time and
blasting for the removal of rock durin", excavation and ditching.
12. This agreement is conditioned upon O\lnerls obtaining, by
February 28, 1995, adequate financing for construction of said
dwellin", in accordance with the terms herein,
13, It is a",reed that the Contractor .hall not be re.ponsible
for delays in construction because of extraordinary weather or
unanticipated work stoppaqes in suppliers of materials. or other
extraordinary circum.tances to the extent any of the foregoing are
beyond his control, In the event that any sp.cified material,
fixture or service (oth.r than allowanced it.m.) becom..
unavailable we agree to a substitution or deletion of the specified
material or fixture \lith a corresponding increase or decrease in
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COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-2685 CIVIL
MICHAEL AND KATHERINE KEYS
Plaintiffs
M L BUILDERS, INC.
Defendants
HARDWOOD WAREHOUSE and
CHERRYBARK, INC.
Additional Defendants
.
.
.
.
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.
.
COMPLAINT
1. Plaintiffs, Michael and Katherine Keys, are adult
individuals currently residing at 14 Joseph Drive, Boiling
Springs, Cumberland County, Pennsylvania, 17007.
2. Defendant M L Builders, Inc. is a Pennsylvania
corporation with a registered address at 641 Whiskey spring Road,
Boiling springs, Cumberland County, Pennsylvania, 17007.
3. Additional Defendant Hardwood Warehouse is a
Pennsylvania Corporation doing business at 6195-0 Allentown
Blvd., HarriSburg, Dauphin county, Pennsylvania, 17112.
4. Additional Defendant Cherrybark, Inc. is a Mississippi
Corporation with a registered address of P.O. Box 151,
Hazelhurst, Mississippi, 39083.
5. In early 1995 Plaintiffs and Defendant M L Builders,
Inc. entered into a construction contract of the construction of
a single family dwelling to be located in Boiling springs,
Cumberland County, Pennsylvania. A copy of the construction
contract is attached hereto and marked Exhibit "A".
6. Thereafter, pursuant to the terms of the construction
contract, Defendant M L Builders, Inc. undertook the construction
of the said home.
7. Defendant M L Builders, Inc. installed a wood floor in
the home.
a. Plaintiffs have filed suit against Defendant M L
Builders, Inc. alleging problems with the wood flooring including
gaps and squeaks.
JOINDER OF ADDITIONAL DEFENDANTS
Defendant M L Builders, Inc. herewith joins as Additional
Defendants to the above-captioned suit Hardwood Warehouse and
Cherrybark, Inc. and avers the following:
9. The floor installed in Plaintiffs' home by Defendant M L
Builders, Inc. was purchased from Hardwood Warehouse.
10. The floor installed in plaintiffs' home was manufactured
by Defendant Cherrybark, Inc.
11. Defendant properly installed the flooring in Plaintiffs'
home.
12. The gaps and squeaks in the flooring are caused by
defects in the flooring.
13. The contract for the purchase of the flooring maintains
certain guarantees.
14. Additional Defendant Hardwood Warehouse, in selling
defective flooring, breached the terms of the contract with
purchaser, M L Builders, Inc. in that it failed to provide a
quality product, free of material defects, as required by the
contract.
15. Additional Defendant Cherrybark, Inc., in manufacturing
MICHAEL AND KATHERINE KEYS
Plaintiffs
.
.
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-2685 CIVIL
VS.
.
.
.
.
:
M L BUILDERS, INC.
Defendants
:
.
.
ANSWER TO AMENDED COMPLAINT
1. Admitted.
2 . Admitted.
3. Admitted.
4. Admitted.
An'::..l0Q.c
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5. (a) Admitted that Defendant M L Builders, Inc.
purchased the wood floor from Hardwood Warehouse, denied that the
floor was installed improperly. Strict proof of same is demanded
at trial.
(b) Admitted that the floor was stored in the home's
garage prior to installation, denied that squeaks and cracks were
caused by said storage or any negligence on the part of Defendant
M L Builders, Inc. strict proof of same is demanded at trial.
(c) Defendant M L Builders, Inc. is without the means
to ascertain the veracity of Plaintiffs' statements concerning
water leakage in the home and that portion of the question is
therefore denied. Defendant M L Builders, Inc. suggested the
installation of a sump pump in the home but did not agree to
effectuate the installation. Strict proof of same is demanded at
trial.
(d) Defendant M L Builders, Inc. is without the means
to ascertain the veracity of plaintiffs' statements concerning
water leakage in the home and that portion of the question is
therefore denied. Defendant M L Builders, Inc. denies that the
home was not properly landscaped, to the contrary, the
landscaping was done in a proper, workmanlike manner, in
accordance with Plaintiffs' directions. Strict proof of same is
demanded at trial.
ee) Denied that the garage floor was improperly
installed, to the contrary, Defendant M L Builders installed the
garage floor in a proper, workmanlike manner, in accordance with
Plaintiffs' directions. Plaintiff in fact directed Defendant M L
Builders, Inc. to use the product of additional Defendant
Cherrybark, Inc. and to purchase same from additional Defendant
Hardwood Warehouse. strict proof of same is demanded at trial.
6. Admitted that Plaintiffs made complaints to Defendant M
L Builders, Inc., denied that M L Builders, Inc. has any further
obligation under the contract and denied that the home is unfit
for human habitation as alleged. Strict proof of same is
demanded at trial.
7. Denied that Defendant M L Builders, Inc. is responsible
for any further repairs. The home is constructed in accord with
the contract. Defendant denies that Plaintiffs have suffered any
financial loss as a result of Defendant M L Builders, Inc.'s
actions or inactions. Strict proof of same is demanded at trial.
8. Denied that Defendant M L Builders, Inc. caused
financial losses to Plaintiffs through is actions or inactions.
strict proof of the alleged financial losses is demanded at
trial. It is specifically denied that Plaintiffs have the right
to be compensated for attorney's fees by Defendant. strict proof
of same is demanded at trial.
9. Answer 1 through 8 are incorporated by reference.
10. Denied that the provisions of the Pennsylvania Trade and
Unfair Practice and Consumer Protection Law have been violated by
Defendant M L Builders, Inc. in any fashion and denied
specifically that any inferior product was delivered or installed
by Defendant M L Builders, Inc., in fact, Plaintiffs specified
the flooring products to be installed in the house.
11. Denied that Defendant M L Builders engaged in any
unlawful, deceptive practices.
12. Denied that the facts of this matter give rise to such
an action, damages or attorney's fees.
13. Denied that Defendant has violated the Act or made
representations which would be subject to the act. Strict proof
of same is demanded at trial.
14. Denied that Defendant M L Builders, Inc. has failed to
comply with any warranties which may apply to the construction
contract. strict proof of same is demanded at trial.
15. Denied that the actions of Defendant M L Builders, Inc.
were of an inferior nature and therefore subject to the act.
strict proof of same is demanded at trial.
16. Denied that Defendant M L Builders, Inc. has violated
the above mentioned Act and denied that Plaintiffs have suffered
any financial damages and denied that Plaintiffs have any right
to treble damages. strict proof of same is demanded at trial.
17. Defendant M L Builders, Inc. incorporates by reference
its answers to paragraphs 1 through 16 as if set forth more fully
below.
18. Admitted.
19. Admitted.
20. Denied that Defendant M L Builders, Inc. breached any of
the terms of the contract or failed to perform in a workmanlike
manner its obligations. strict proof of same is demanded at
trial.
21. Defendant M L Builders, Inc. incorporates by reference
its answers to paragraphs 1 through 20 as if set forth more fully
below.
22. Denied that Defendant M L Builders, Inc. was negligent
in the construction of the home, to the contrary, M L Builders,
Inc.'s construction of the home was above the standards of
workmanship required within the community. strict proof of same
is demanded at trial.
23. Denied that Defendant M L Builders, Inc. caused
Plaintiffs to suffer financial losses, to the contrary, Defendant
M L Builders, Inc. built a home which was free from material
defects and fit for human habitation. strict proof of same is
demanded at trial.
y ubmitted
C
W 11 am A. uncan,
1 Irvine Row
CarliSle, PA 17013
(717) 249-7780
Attorney for M L Builders, Inc.
10. The Pennsylvania Unfair Trade Practices and Consumer Protection Law, 78 Pa.C.S.A. f
201 et seq., dermes an unfair method oC competition or unfair or deceptive act or practice as represented
that gooda or services are oCa particular standard, quality or grade Ie they are oCanother, Calling to comply
with the terms oC any written guarantee or warranty given to the buyer at, or prior to or after contract
Cor the purchase oC gooda or services made; or maldng repairs, Improvements, replacements on real
property oC a nature or quality inferior to the standard oC that agreed in writing.
11. Section 201.8 oC the Act declares unlawful such unfair deceptive practices or acts in the
conduct oC any trade or commerce.
12. Section 201.9.2 oCthe Act allows private actions by consumers and authorizes the Court
to award triple damages and attorneys Cees.
18. The DeCendant has violated the Act by Calling to uphold its representation that the services
to be performed would be completed in a workmanlike manner.
14. The DeCendant has violated the Act by Calling to comply with warranties provided in the
original construction contract.
15. The DeCendant has violated the Act by making repairs, Improvements, replacements on
real property oC a nature or quality inferior to the workmanlike standard agreed to in writing.
16. As a result oC DeCendant's violation oC the above mentioned Act, PlaintilTs have sulTered
damages in an amount in excess oC $10,000.00 and thereCore request triple damages up to a maximum oC
$25,000.00.
WHEREFORE, PlaintlCCs demand judgment in their Cavor and against the DeCendant in an amount
not to exceed $25,000.00.
COUNT II
BREACH OF CONTRACT
17. Paragraphs 1 through 16 are incorporated herein as Ie set Corth more fully below.
18. DeCendant contracted to perform all oCthe agreed upon work pursuant to the terms ofthe
construction contract mentioned above.
19. The contract maintains certain guarantees.
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(~t be typewritten and subnitted in tiupl i,."te)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter far the next Argunent COUrt.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption llIlSt be stated in full)
MICHAEL AND KATHERINE KEYS,
(Plaintiff)
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M L. BUILDERS, INC.,
(Defendant)
HARDWOOD WAREHOUSE and
CHERRYBARK, INC.,
(Additional
Defendant)
Nb.1997-2685 Civil Term XliX
1. State matter to be argued (i.e.. plaintiff's IIDtion far new trial. defendant's
derrurrer to CCJItllaint. etc.):
Additional Defendant, Cherrybark, Inc.'s, Preliminary Objections to
Defendant's Joinder Complsint
2. Identify counsel who will argue case:
(a) far plaintiff:
Address :
(b) far defendant:
Address :
Ron Turo, Esq. Ie) Cor additional defendant Cherrybark
32 South Bedford St. William P. Douglas, Esq.
Carlisle, PA 17013 27 West High St.
Carlisle, PA 17013
William A. Duncan, Esq.
1 1rvine Row
Carlisle, PA 17013
3. I will notify all parties in writing within boo days that this case has
been listed far argurent.
4. Argunent COurt Date: December 10, 1997
DOUGLAS, DOUGLAS & DOUGLAS
Dated:
September 29, 1997
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COUNTY OF DAUPHIN
J. R. LOTWICK
SHERIFF OF DAUPHIN COUNTY
OFFICIAL RECEIPT
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