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Home My WebLink About97-05451 1 " - AL.L.EN SHAFFER & ASSOCIATES LAW OFFICES Iza MARKIET STRI:IT MILLERSSURG, PA 170&1 (717)G92.Z3415 2941 NORTH ,RONT STREIT HARRISSURG, PA 17110 C717l23e.gBII I. " F1LtJJ Oi-F:CE cr: iH~ p~:::'r' nnfl-RY q7 '1011 I U [':112t 144 ell' ",'" 'U'[ '[Y liili;l:l I', ",'.J t/..I 'I l:c,',"""11 \,...t'l~ '"" r\l..J/..II 'd , i' " , " " ' " , , , boyorpoo. I RICHARD COAKLEY and SUSAN COAKLEY, husband and wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA v. NO. 97-5451 CIVlL TERM BOYER CONSTRUCTION & POOL SERVICE, Defendant ~ CIVIL ACT!ON - LAW NOTICE , ,I You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your def~nses or objections to the claims set forth against you. You are warned that if you fail to . do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, Pennsylvania 17101 Telephone: (717) 232-"1536 NOTICIA Le han demandado a usted en la corte. si used quiere defenderse deestas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda v Ia notificacion. Usted debe presentar una apariencia escrita 0 en persone 0 per abogado y archivar en la corte en forma escrite sus defensas 0 sus objeciones alas demanda en contra de au persona. Sea avisado que si usted no se defieade, lacorte torara medicas y puede entra una orden contra usted sin previo aviso 0 notifica<:ion y por cuaIquier queja 0 aIivio qu~ pedido en Ia ., 10, Admitted in part I denied in part. It is admitted that thel'e was a very slight peeling of paint on the top edge of the coping band. It is denied that the slippery condition of the pool bottom was apparent. The Defendant did not check the pool bottom, 11. Admitted, The site visit took place in August, 1996. The work was actually done in October, 1996. The Plaintiffs would not allow the Defendant to do the work until after the swimming season, per Plaintiff's request. 12. Denied. The resurfacing of the steps and slope were not done. until October, 1996. 13. Denied. The slippery condition was never apparent, and any peeling was very minimal. COUNT II -. BREACH 01" IMPLIED CONTRACT 14, Paragraph of Incorporation. No Response Required. 15, Denied. There was no contract of any kind between the Plaintiffs and the Defendant. 16, Admitted in part; denied in part. It is admitted that the pool was to be repainted. It is denied that it was to be resurfaced. 17. Denied. The Plaintiffs did not hire the Defendant. The work was done in as professional manner as possible given the Plaintiffs requirements and constraints. 18. Denied. The Defendant's first contact regarding any problems with Plaintiffs' pool was with Goodall Pools, on August 6, 1996. 19. Admitted in part; denied in part. It is admitted that the Defendant has refused to look at the job. The Plaintiffs' contract was with Goodall Pools, not the Defendant. 20. Denied. There was no contract between the parties, implled or otherwise. The Defendant was retained by Goodall Pools to repaint and recaulk the pool. COUNT III.. BREACH OP IMPLIED WARRANTY 21. Paragraph of Incorporation. No Response Required. 22. Denied. On October 4, 1996, Plaintiffs advised both the Defendant and Goodall Pools that they were satisfied with the work done by the Defendant. 23. Denied. The Defendant is not aWar~ that such a determination was ever made. 24, Admitted in part i denied in part. It is admitted that the Defendant has received letters from the Plaintiffs. The Defendant denies any suggest ion that his workmanship was inadequate and of poor quality, 25. Admi t ted in part i denied in part. It is admi t ted that the Defendant refuses to return to the site. The Defendant denies any suggestion that any problems the Plaintiffs might be experiencing with his pool were caused b}' its negligence. COUNT IV .. NEGLIGENCi 26. Paragraph of Incorporation. No Response Required. 21. Denied. The Defendant did not select the paint, The Defendant used the type of paint requested by the Plaintiffs. 28. Denied. The Defendant used the paint requested by the Plaintiffs. 29. Denied. None of the problems the Plaintiffs have allegedly been exper.iencing with their pool were caused by the Defendant's failure to visit the site. Only two swimming seasons have passed since June, 1996. 30, Denied, The Defendant applied a rubber-based paint per the Plaintiffs' instructions. COUNT V - - DAMAGl!:li 31, Paragraph of Incorporation. No Response Required. 32, Denied. The Pl aint if f s are seeking reimbursement for work that far exceeds the scope of the work Goodall Pools had the Defendant do on their behalf. NEW MATTER 33, ~aragraphB 1-32 are incorporated herein by reference. 34, In May, 1996, the Defendants were contacted by Goodall Pools regardit:lg the repainting and recaulking that needed to be done on the Plaintiff's pool. 35. The Defendant was hired by Goodall Pools to repaint and recaulk the pool. He advised the Plaintiffs that the old paint should be removed prior to repainting or his new paint job would only be as good as the old one. He was advised to paint on top of the old paint anyway. 36. The Plaintiffs advised the Defendants and Goodall Pools as to the kind of paint that was to be used and which areas of the pool were to be painted. 37. Pursuant to the Plaintiff's request, the Defendant used a chlorinated rubber-based paint on the pool and not an epoxy pai.nt as they stated in their complaint. 38. The Defendant advised the Plaintiffs not to paint the fiberglass and that the type of paint they were requesting was not . . . ~ ~ ~ N en ~ :ll ~ ~ ~ ~ :ll z ~ Iii 0 ~ ~ ~ ~ ::! ~ CD . ~ C .. ~ 0 !ll x c i:: :ll . :ll .r;) . ~ . ~ N 0 ~ ~ II> ~ N .. ~ ~ ~ ~ ~ Cl > - ~ - ~ III ... ... - ~ g 0 <5 ~ n - ~ 1JI . . , , 0 '.1'> () ( -.J -II "- 'J ""'i' c; r'it" , I . "'J ". r'tr_. -;~. . I ' "'11'11 ;'''t..- ',',I) ,fc .. -:.) ~ ,) (I) e,~~,.' .., ; i~ ::\ J:(',l .,' .- ':~ f 1 ...-, j i..jr., j.oC.: .. to' Q ~..') J.' ~ I .;; .... lxJ\lIto\l.'lullb.ald .lIul RIClIARD COAKLEY and SUSAN COAKLl. Y , , IN THE COORT OF COMMON PLEAS OF husband and wife, I CUMBERLAND COUNTY, PENNSYLVANIA plaintiffs I I fI', ,. '/~I I NO. t I - 5~5'1 {.(I-'t.. \./.- f J#<, v. I I CIVIL ACTION - LAW BOYER CONSRUCTION & POOL SERVICE, I Defendant I 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 notice are served, by entering a writtan appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the com- plaint 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 4th Floor Cumberl"nd County Courthouse Carlisle, PA 11013 Telephone: (117) 240-6200 repainted. 5. Goodall poola advised that they did not speciali2e in re- painting of pool surfaces and advised the plaintiffs to contact the defendant to repaint the pool. 6. The oral contract called for re-sanding, caulking, re-surfac- ing and repainting of thu kidney-shaped pool. 7. Defendant's repair work on plaintiffs' pool was completed by June, 1996. B. On or before June, 1996, it became readily apparent that the newly surfaced pool was dangerously and abnormally slippery, to the point where plaintiffs forbid the use of the pool by anyone. 9. On or before June, 1996, the plaintiffs contacted Goodall Pools, and requested that they contact the defendant to do a site visit in order to determine the problem with the surface of the pool. 10. On the initial site visit, slight peeling of the paint was apparent, aD well as the slippery condition of the pool bottom. 11. As a result of that consultation, the defendant sanded down the pool steps and part of the slope, adding sand to the paint to the steps and surrounding area to create traction for swimmers. 12. On or about July, 1996, it became apparent that the re- surfacing of the steps and the slope was inadequate to solve what was an increasingly dangerous situation. 13. In addition to the slippery condition, it became apparent that not only was the newly painted pool peeling, but the pool showed hairline fractures where the paint was peeling. -2- WHBRErORE, plaintiffs demand judgment against the Defendant for the sum of One Thousand six Hundred Seventy-four and 10/100 ($1,674.10) Dollars, representing the refund of the monies paid by the plaintiffs to the defendant under the contract, plus interest and costs of suit and such other relief as this Court deems just and appropriate. COUNT II - BREACH or IMPLIED CONTRACT 14. Paragraph 1 though 13 above are incorporated by reference as though fully set forth at length herein. 15. At all times, relevant to this lawsuit, the parties herein as if the contract was, in fact, in writing. 16. At all times, both parties acted on the belief that the defendant would specifically perform the service of re-surfacing and repainting the plaintiffs' pool and that the defendant would be paid accordingly. 11. Plaintiffs aver that they hired the defendant to repaint the pool job based on the recommendation by another that the defendant was the best in the area and would perform the work in a professional manner, which it was not, 18. Plaintiffs aver that when they became apparent that the pool re-surfacing and repainting was incorrectly done, they immediately contacted the defendant to correct the problem. -3- 19. Defendant has continued to deny a problem, and refuses to even look at their inadequate job at what allegedly is their specialty. 20. Defendant has refused to honor the contract of the re- surfacing and repainting of the pool, thereby broaching the implied contract between the parties. WHEREFORE, plaintiffs demsnd judgment against the defendant for the sum of One Thousand Six Hundred Seventy-four and 10/100 ($1,674.10) Dollars, representing the refund of the monies paid by the plaintiffs to the defendant under the contract, plus interest and costs of suit and such other relief as this Court deems just and appropriate. ~ III - BREACH OF IMPLIED WARRANTY 21. Paragraph 1 through 20 above are incorporated by reference as though fully set forth at length herein. 22. On or about October, 1996, plaintiffs advised both the defendant and Goodall Pools that there was still a problem with the pool. . 23. It was determined that the plaintiffs should deal directly with the defendant to cure the defects in the workmanship of the pool repainting and re-surfacing. 24. Plaintiffs have made numerous requests through both certi- fied and un-certified letters, to have defendant remedy the problem -4- oaused by its inadequate and poor quality of workmanship. Copies of whioh are attaohed hereto made a part of the reoord thereof, and marked as Exhibit "A". 25. Defendant has refused to come to the site to see the prob- lems oaused by its failure to use the correct paint on the pool's concrete surface. WHEREFORE, plaintiffa demand judgment against the defendant for the sum of One Thousand Six Hundred Seventy-four and 10/100 ($1,674.10) Dollars, representing the refund of the monies paid by the plaintiffs to the defendant under the contract, plus interest and costs of suit and such other relief as this Court deems just and appropriate. COUNT IV - NEGLIGENCE 26. Paragraph 1 through 25 above are incorporated by reference as though fully set forth at length herein. 27. Defendant clearly failed to select the proper epoxy paint blend that would permanently adhere itself to the pool's concrete surface. 28. Defendant's failure to select the proper paint caused the paint to bubble, peel and crack, thereby allowing air and water to seep under the paint and make contact directly with the pool's under- lying concrete base. -5- 29. Beoause defendant failed to visit the site for the last year, the pool paint, surfaoe, and coping has progressively peeled and deteriorated to the point where three seasons have passed without any use because of the inherent dangers created by defendant's negligence. 30. Defendant's negligence in selecting the proper epoxy paint has caused plaintiffs to lose the use and enjoyment of their pool for three seasons. WHEREFORE, plaintiffs demand judgment against the defendant for the sum of One Thousand Six Hundred Seventy-four and 10/100 ($1,674.10) Dollars, representing the refund of the monies paid by the plaintiffs to the defendant under the contract, plus interest and costs of suit and such other relief as this Court deems just and appropriate. COUNT V - DAMAGES 31. Paragraph 1 through 30 above arc incorporated by reference as though fully set forth at length herein. 32. An estimate of the coets to repair said damages caused by the defendant to the pool include as follows: A. Pump water out of pool. B. Sandblast concrete bottom of pool to bare concrete. C. Acid bath concrete for additional adhesion purposes. D. Lightly sand or sandblast fiberglass walls and fiber- glass coping. -6- ~'.J.' l '~'~; 11): ~'.-' :1 : .:~. -: ~'I,' ','1' 11'1'll'..l.. !'I'lll- 111' P,..l;r. . ~J~: .. ' {I'" .::,,:, .' BOYER Cql.'l~TRliCTl()N J"~ ':rfl,ANDPOPFSBRYICIi N~ 2~:~14 ~ 'j ,'t'>...,:\~ './ ,,'.. I ':'):~~r~'. '~'MING'''QOLS'' CONCR'E'i'E CONTRACTOR.. ' " ' ....., y~t~~\"'1 U"Un-:.R!MODIL!~p*;~INTlNANCl ""f:~' ,~~ ,y,." ~.'IffilOUSTRUT .' M'LLI~~'URG. PA 17061' ~', 1I'l'!,ol'l~.17171 6n.J363., 100 5n.POOI '. " II .. CUllom, II.. [.1' , ., " . .e O,d.. ~ 0 _.....,~- ,. -~ ..---;---. r-D~'.~'1c4- ~~ Nom..... __ " _e~-. '-"- -- . ' . ' .' 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