HomeMy WebLinkAbout97-06906
NORM ELAM,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL AC'rION - LAW
NO, 97-6906 CIVIL TERM
JURY TRIAL DEMANDED
v.
GEORGE H. HALL and KIMBERLY L.
HALL, his wife,
Defendants
PRAECIPE FOR RULE TO FILE COMPLAINT
TO PROTHONOTARY:
Please issue a Rule upon Plaintiff to file a Complaint in the
abqve-captioned matter with twenty (20) days from date of service
or suffer judgment non pros.
THOMAS, THOMAS & HAFER
---.--.-
By: \..
Dougl B. arcello, Esquire
305 orth Front Street
Post Office Box 999
Harrisburg, PA 17106-0999
(717) 255-7236
Attorneys for Defendants
Iill.I.J;1
A Rule is hereby issued upon Plaintiff to file a Complaint
within twenty (20) days or suffer. judgment non pros.
P~6'~~~~0~~r; ~(COA -- Ai', 1''' 41/.)/,)1/17
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The parties entered into a residential construction contract in
September, 1996 which provided for the construction of the home
in accordance with certain plans and specifications known and
identified as Home Design UA135, A copy of the residential
construction contract is attached hereto as Exhibit "A". The
plans and specifications known as Home Design No, UA135 are
attached hereto as Exhibit "B".
5. Notwithstanding certain provisions of the written
agreement attached as Exhibit "A", the parties entered into
various changes to the agreement and the plans and specifications
without preparing f0rmal change orders. Whenever the subject of
change orders was brought up, Defendants viewed the sub'ect of
change orders as questioning their trustworthiness, As a result,
various changes were made verball.y and without written change
orders. The parties thereby waived change order provisions of
the contract and instead went forward with changes on an
informal, verbal basis.
6. Under the original agreement, plaintiff agreed to add
two feet to the length of the house making it 40 feet long
instead of 38 feet long, He also agreed to eliminate a four foot
off-set on the back line of the house as shown on the plans thus
creating a straight wall without any off-set. Plaintiff agreed
to add such additional square footage for the total of One
Hundred Seventy Five 'I'h0l1sand Dollars ($175,000),
. 2 -
12, Despite demand, Defendants have failed and refused to
pay the amount due and owing to Plaintiff.
13. plaintiff has performed all conditions precedent to
payment of the amounts owing to him,
WHEREFORE, Plaintiff, Norm Elam, demands judgment against
Defendants, George H, Hall and Kimberly L. Hall, jointly and
severally, in the amount of $48,645, together with inteY.'est and
costs of suit.
COUNT II
OUANTUM MERIUT
14, Paragraphs 1 through 13 are incorporated herein by
reference.
15. Plaintiff conferred a benefit on Defendants as a result
of the additional square footage and the additional excavating
and fill/grading/seeding and the other items listed on Exhibit
'C". The fair and reasonable value of the benefit conferred on
Defendants :8 $48,645,
16. Despite demand, Defendants have failed and refused to
pay over to Plaintiff the value of the benefit conferred on
Defendants by Plaintiff.
17. Plaintiff has fulfilled all conditions precedent to
Defendants I obligation to make payment to him,
- 5 -
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Residential Construction Contract
AGREEMENT mado this day of September, 1996, by and between Nonn
Elam (hereinafter referred to as "Contractor" and George Hall and Kim Hall
(hereinafter referred to a "Buyers").
WITNESSETH that in consideration of tho mutual covenants and agreements
herein contained, and Intending to be legally bound hereby, the parties hereto do agree
to the following terms and conditions:
1. Detlnltlol!.!!.. The following terms shall have the assigned meanings for the
purposes of this agreement.
Section 1.1 Contract Documents, The contract documents consist of this
Agreement (including specific and general conditions hereto), and drawings,
specifications, plans, amendments and change orders relating to this Agreement.
These aforesaid documents constitute the entire contract between the parties, and
shall not be modified except by written amendment of the said contract documents,
The contract documents do not include, and specifically exclude, any and all oral
discussions, understandings, and agreements between the said parties prior to the
execution of this Agreement.
2. Contract Work, The Contractor agrees to furnish all the material and labor
necessary for the construction of a two story home upon the property of the Buyer,
which property is located and situate at Lot No. 29 Mayapple, The said work shall be
performed in accordance with certain plans and specifications furnished by contractor
and known and identified as~-12~~~-&-~$.!:>duplicate copies of which have
been initialed by the parties hereto and delivered to both Buyer and Contractor
pursuant to this Agreement. In consideration for the work to be performed under this
contract, Buyers shall pay to contractor the sum of One Hundred Seventy Five
Thousand Dollars, ($'175,000.00) in accordance with paragraph 5 hereinbelow, and
sllbject to additions and/or deductions by change order as provided in paragraph 5.4 of
this Contract.
THE ABOVE STATED CONTRACT PRICE IS BINDING UPON CONTRACTOR
ONLY IF CONTRACT WORK IS COMMENCED WmUN SIXTY (60) DAYS AFTER
THE DATE OF THIS CONTRACT. IN THE EVENT WORK IS NOT COMMENCED
WITHIN SIXTY (60) DAYS FROM THE DATE OF THIS CONTRACT, CONTRACTOR,
AT ITS SOLE OPTION, MAY TERMINATE THIS CONTRACT AND NEGOTIATE A
NEW CONTRACT PRICE WITH BUYER.
EXHIBIT "A"
3. Obllqatlon of Buver
3, Buyer shall furnish to contractor all necessary surveys describing the
physical characteristics, solis, reports and subsurface investigations, restrictive
covenants, building restrictions, legal limitations, utilities locations, and a legal
description of the building site. Buyer shall review the plans and specifications
submitted by Contractor and shall give prompt written notice to the Contractor of any
fault or defect in the said plans and specifications.
4. Obliqatlons of contractor.
4,1 Contractor will provide all construction supervisions, Inspection,
labor, materials, tools, equipment, and subcontracted items necessary for the execution
and completion of the contract work.
4,2 Contractor will pay all sales, use, gross receipts and similar taxes
related to the contract work to be provided by the contractor, which taxes have been
legally enacted at the time of execution of this Agreement.
4,3 The contractor shall supervise and direct the work, using his best skill
and attention.
4.4 The contractor warrants to the Buyer that all materials and
equipment incorporated into the contract work will be new unless otherwise specified,
and that all contract work will be of good quality, in conformance with the contract
documents.
4.5 Contractor shall be responsible for the acts and omissions of its
employees and all subcontractors engaged by Contractor, their agents and employees,
and all other persons performing any of the work under this contract on behalf of or with
the Contractor.
4.6 The Contractor shall at all times keep the premises reasonably free
from the accumulation of waste materials or rubbish caused by the operations of the
Contractor. At the completion of the work, the contractor shall remove all tools,
construction equipment, machinery and surplus materials, and stlallleavE.'l the work
"broom" clean or its equivalent, except as otherwise specified.
4.7 Contractor shall be riP.sponsiblo for obtaining all permits relating to
construction of the aforesaid building and for determining how, if at all, the building lot
upon which said construction is to occur is encumbered by restrictions, conditions
and/or limitations effecting such construction.
4,6 Contractor shall secure and pay for necessary governmental
approvals or permits, easement.s, assessmElnts and charges required be for the
construction, use, or occupancy of permanent structures or for permanent changes In
existing facilities,
6. pavment of Contract Price, ProQress Pavments.
5.'1 In consideration for the performance of the Agreement, Buyer agrees
to pay Contractor, in current funds, as compensation for his services, the Contract
Price of One Hundred Seventy Five Thousand ($175,000,00) Dollars, (subject to the
provisions of paragraph 2 of this contract)
5.2 The Contract Price shall be paid by Buyer to Contractor based upon
written applications for payment which may be submitted b~1 Buyer at the following
times:
0% of the Contract Price upon the execution of this Agreement;
20% of the Contract Price upon the completion of the foundatioll;
20% of the Contract Price when the roof is completed, when framing
and sheathing are completed and when all windows are set in
place;
20% of the Contract Price when the installation of electrical and
plumbing systems, in rough form, are completed;
20% of the Contract Price when the interior drywall is sanded and
ready for painting;
20% of the Contract Price upon substantial completion of the building
as defined herein or at the time of occupancy of the building by
Buyer.
5.3 The Contract Price is for the materials and labor in construction of the
Contract Work ONLY. The Contract Price incliJdes the cost of excavating, digging,
backfillng around foundation and front seeding, landscaping and grading up to
$3,000.00. The following items are also included in the Contract Price; exterior and
interior painting, utility connections, permits, outside concrete sidewalks, water laterals
and driveway. The Buyer shall pay the additional costs involved in providing extra
engineering or foundation work which may be required if the Contractor encounters
abnormal or unusual subterranean conditions during the course of construction
including, but not limited to;
, '
a, Extra concrete block and labor necessary to Install the
same for the construction of foundation that mat be
required In excess of blueprint specifications
b. The cost of labor and materials needed to divert or
control surface or subsurface water found during the
course of construction.
5.4 The Buyer, without invalidating the contract, may order Changes in
the work consisting of additions, deletions, or modifications, the Contract Sum and the
Contract Time being adjusted accordingly. All such changes In the Work shall be
authorized by Written Change Order signed by the Buyer,
5.5 A Cllanga Order is a written order to the Contractor signed by the
Buyer or his authorized agent and issued after the execution of this Agreement,
authorizing a Change in the Project and/or an adjustment in the Contract Prlce, or the
Performance Time Schedule.
5,6 Tile Contract Price and the Performance Time Schedule may be
changed only by Change Order or as otherwise specified in this Agreement.
5.7 The cost or credit to the Buyer from a Change in the Work shall be
determined by mutual agreement
5.8 Final payment constituting the unpaid balance of the Contract Price
as adjusted by Change Order shall be due and payable when the Project is delivered to
the Buyer, ready for beneficial occupancy, or when the Buyer occupies the Project,
whichever event first occurs, provided that the Project is then substantially completed
and this Agreement substantially performed. If there should remain minor items to be
completed, the Contractor and the Buyer shall list items and the Contractor shall
deliver, in writing, his guarantee to complete said items within a reasonable time
thereafter.
5.9 The making of final payment shall constitute a waiver of all claims by
the Buyer except those arising from (1) unsettled liens, (2) faulty or defective Work
appearing within ONE (1) YEAR after Substantial Completion, or (3) failure of the Work
to comply with the requirements of the Contract Documents, The acceptance of final
payment shall constitute a waiver of all claims by the Contractor except those
previously made in writing and still unsettled.
Occupancy of the home by Buyer shall constitute acceptance of same by Buyer
and Contractor, except as provided hereinabove, shall thereafter be under no
obligation whatsoever to Buyer relative to the construction of said home.
. .'
6. Time of Performance. The work to be performed under this Contract shall
be commenced on or about bank settlement or fifteen (15) days after the date Buyer
has fulfilled all obligations required by Paragraph 3 of this Contract, and except as
otherwise provided or permitted by the Contract, shall be substantially completed not
later than nine (9) months fromthe date of commencement.
6,2 The Date of Substantial C.ompletion of the Contract Work is the date
when construction Is sufficiently completed In accordance with the Plan and
Specifications so the Buyer can occupy the construction work. Warranties called for by
this Agreement shall commence on the Date of Substantial Completion of the
construction work,
6.3 If the Contractor is delayed at any time in the progress of the
construction work by any act failure or neglect of the Buyer or by changes ordered In
the Project or by labor dlsputes, unusual delays In transportation, adverse weather
conditions nor reasonably anticipatable, unavoidable casualties, or any causes beyond
the Contractor's control, or a delay authorized by the Buyer, then the Date for
Substantial Completion shall be extended for the period of such delay,
7, Insurance,
7,1 Indemnity. The Contractor agrees to indemnify and hold the Buyer
harmless from all claims for bodily injury and property damage (other than the Work
itself and other property insured under Paragraph 7.2.) that may arise from the
Contractor's operations under this Agreement.
7.2 Contractor's Liability Insurance. The Contractor shall purchase and
maintain such insurance as will protect it from claims under workman's compensation
acts and other employee benefit acts, from claims for damages because of bodily
injury, Including death, and from claims for damages to property which may arise out of
or result from the Contractor's operation under this Contract, whether such operations
be by It or by and Subcontractor or anyone directly or indirectly Clmployed by any of
them, This insurance shall be written for not less than any limits of liability required by
law and shall include constractualliabllity insurance as applicable to the Contractor's
obligations undor this Agreement.
7,3 Buyer's Liability Insurance. The Buyer shall be responsible for
purchasing and maintaining his own liability insurance and, at his option, may maintain
such Insurance as will protect him against claims which may arise from operations
under this Contract.
7.4 Buyer's Property Insurance. Unless otherwise provided, the Buyer
shall purchase and maintain property insurance upon the entire Contract Work at the
, '
site to the full Insurable value thereof. This Insurance shall Include the interest of the
Buyer, the Contractor, Subcontractor and Sub-subcontractors In the Contract Work and
shall Insure against the perils of fire, extended coverage, vandalism and malicious
mischief. Any Im;ured loss is to be adjusted with the Buyer and made payable to the
Buyer as trustee for the insured's as their interests may appear, subject to the
requirements of any mortgage clause. The Buyer shall provide a copy of all policies to
the Contractor prior to the commencement of the Work, The Buyer and Contractor
waive all rights aQainst each other for damages caused by fire or other perils to the
extent covered by Insurance provided under this paragraph, The Contractor shall
require similar waivers by Subcontractors and Sub-subcontractors,
8, Correction of Work. The Contractor shall correct any work that falls to
conform to the requirements of the Contract Documents where such failure to conform
appears during the progress of the Work, and shall remedy any defects due to faulty
materials, equipment or workmanship which appear within a period of ONE (1) YEAR
from the Date of Substantial Completion of the Contract. The provisions of this
paragraph apply to Work done by any Subcontractors as well as to Work done by
direct employees of the Contractor, Contractor does not warrant a waterproof or
damp-proof basement. THE CONTRACTOR MAKES AND THERE EXISTS NO
OTHER WARRANTIES, WRITTEN OR IMPLIED, CONCERNING THE CONTRACT
WORK OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT.
9, DEFAULT BY BUYER. If the Buyer shall default hereunder prior to the
beginning of the construction work, Contractor shall retain the money paid by Buyer as
liquidated damages; and this Contract shall thereupon terminate. If the Buyer fails to
make a Progress Payment to Contractor as herein provided through no fault of the
Contractor, the Contractor may, upon seven days written notice to the Buyer, terminate
the Contract and recover from the Buyer payment for all Work completed and for
proven loss sustained upon any materials, equipment, tools, and construction
equipment and machinery, including reasonable profit and damages.
Upon default in payment of any installment as provided in Paragraph 5.2, the
Buyer hereby authorizes and empowers any attorney of any Court of Record of
Pennsylvania, or elsewhere, to appear for and to enter judgment against him (them) for
the Contract Price, a sum certain, for all moneys due under this Contract without
defalcation, with cost of suit, release of errors, without stay of execution and with ten
(10%) percent added for collection fees; and he also waives the right of inquisition of
any real estate that may be levied upon to collect this sum; and does hereby
voluntarily condemn the same, and authorizes the Prothonotary to enter upon fi. fa. his
said voluntary condemnation and he further agrees that said estate may be sold on fi.
fa, and he heraby waives and releases all relief from any and all appraisement, stay or
exemption laws of any state, now in force or hereafter to be passed.
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SI~RY OF BALANCE OWING TO NORMAN ELAM
Charges
1. 5 closet lights @ $20.00 ~ tax
2, 5 door handles @$7.00 + tax
3. Laundry tub faucet
4. Laundry tub
5. Installation of laundry tub
6. Installation of wet bar sink
7. Disposal
8. Lamp post with receptacle
9. Sink and Faucets (extra)
10. Tile in baths and island
11. Front door trim
12. Installing front door trim
13. Grid for large window
14. Crown molding, extra garage
15. Brick on front walk
16. Stereo, rough in
17, Extra cabinets
18. Trim on gable roof
19. White ceiling painted
20, Garage lights
21. Extra smoke detector
Z2, Treatment on driveway by Ed
-1-
EXHIBI'l' "c"
$ 106.00
37.00
49.00
52.00
65.00
65.00
112.00
60.00
1,002.00
1,422.00
250.00
160.00
400.00
26.00
450.00
205.00
2,561.00
150.00
500.00
58.00
35.00
60.00
.'
23. Extra light on basement door
24. 1 way dimmer @ $12.50
25. 3 way dimmer @ $17.50
26. Carpet
27, Eyeballs on recess lights @ $15.00
28. Basement lights - $60.00
29. Basement outlets - $50,00
30. Gas valve for deck - $30.00
31. Gas valve for dryer - $30.00
32. Ice maker hookup - $40.00
33. Microwave trim - $40.00
34. Extra electric panel - $0.00
35. Excavating and fill/grading/seeding
($9,544 less $3,000 allowance)
36. Additional 551 square feet of living
at $70 per square foot
Total Charges
Credits
37. Check on 4/14/97
38. Appliance allowance
39. Lighting balance
40. Plants
41. Bath accessories
Total Credits
BALANCE DUE NORMAN ELAM
-2-
35.00
12.50
17.50
116.00
30.00
60.00
50.00
30.00
30.00
40,00
40.00
0.00
6,544.00
area 38,570.00
$53,600.00
2 , 000 ..0 0
2,000.00
340.00
250,00
165.00
$4,755,00
$48,645.00
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