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HomeMy WebLinkAbout98-01443 ~ . " J ~ :I j Q4 ~ ~ \l U) '" > , i ~. al 3 u: ...c \ D ~ \l I'J .- W ) / ( .. ...' \> :;~ - - :;) .- :CJ . C>o C- ~ 6, On March 23, 1996, Robert Sehnnrrs and another unidentilied male ("John Doc"), employees of Defendants, met with Plaintiffs at their home regarding aluminum trim. 7. During his meeting with Plaintiffs, Mr. Schnnrrs represented the following: a. That he was a representative of Sears and American; b. That Sears perfonned all ofits home improvement projects through its subsidimy American; c, That American did all of its work in-house and did not subcontract work to third parties; d. That Sears and American stood behind their work with a 100% customer satisfaction guarantee; and e. Based on the work that Sears and/or American would perfonn for Plaintiffs, Plaintiffs would never have to paint any wood trim on their house again. 8. Based on these representations, Plaintiffs entered a contract with Sears and American for a total price of$8,477. A copy of that contract is attached hereto and incorporated herein as exhibit A. 9. At that same meeting on March 23, 1996, Plaintiffs purchased from Sears and American a sliding window to replace the casement window located in Plaintiffs' kitchen, 10. During a walk through the kitchen and a discussion regarding the purchase of the replacement window with representatives of Defendants, Patricia Eisenhauer asked whether the casement windows in the rest of the house would create any difficulty in connection with the aluminum trim on the window frames, 11. Mr, Schnnrrs and/or John Doc indicated there would be no problem and they had done casement window trim before, 12. Shortly after March 23, 1996, workmen (Jack Long and Jeffrey Reck) dispatched by Defendants, commenced work at Plaintiffs home, 13. The overwhelming majority of time the workmen spent at the Plaintiffs' home was dedicated to the trim around the windows. 14. During the course of the improvements, Plaintiffs tearned that the workmen were employed by J & B Construction, which was a subcontractor to American, contrary to Mr. Schnnrrs assertion on March 23, 1996 that American did all of its work in-house and did not subcontract work to third parties. 15. On April 2, 1996, Plaintiffs paid $8,477 to Defendants upon completion of the work. 16. A few days after the workmen left, when the weather first wanned, Plaintiffs attempted to open a window to allow air circulation throughout the house. 17. Plaintiffs discovered that none of the windows in the house could be opened because the trim overlapped the frames thereby preventing the windows from swinging open. 18. On or about April 22, 1996 to on or about June 3, 1996, Plaintiffs communicated with nwnerous Sears' representatives in efforts to resolve the problem, including: Mr. Schnnrrs, Russ Haas, Mike Anthony and Mike Dougherty. 19. Mr, Dougherty calted Plaintiffs and scheduled a Scars' representative to remedy the problem. 20. On or about June 4, 1996, a representative from Sears ("Kenny"), Sears' designated window specialist, arrived at Plaintiffs home, reviewed the problem, indicated the problem could not be solved and indieated the windows could only be opened if all of the trim was removed from the frames.. 21, "Kenny" indicated that Defendants had had a similar problem on another job in Plaintiffs neighborhood. 22. Defendants then sent workmen to remove the aluminum trim from the window frames, COUNT 1- DAMAGE TO PROPERTY 23. Paragraphs I through 22 arc incorporated herein by reference as iffully set forth, 24. In removing the aluminum trim from Plaintiffs home, Defendants damaged Plaintiffs window frames. WHEREFORE, Plaintiffs Shnun and Patricia Eisenhauer demand judgment in their favor and against the Defendants Sears and American in excess of $1 0,000.00, plus lawful interest, the costs of this action, legal fees and such other legal and equitable relief as this Honorable Court deems just and. proper, COUNT 11- BREACH OF CONTRAcr 25. Paragraphs I through 24 arc incorporated herein by reference as if fully set forth, 26. Plaintiffs and Defendants contracted for Defendants to provide aluminum trim to all exposed wood surfaces of Plaintiffs house. 27. Plaintiffs told Defendant that the sole purpose of the contract was to eliminate the need to paint the house, 28. Defendants were aware that Plaintiffs house contained casement windows, 29. Defendants were aware they had encountered problems with trimming casement windows in the past. 30. Defendants failed to install the window trim so that the windows could be opened. 31, Defendants inspected the window trim, detennined they could not trim the windows to pennit proper operation, and removed the window trim, 32, Due to the removal of the window trim, Plaintiffs must now periodically contrnct with a painter, which defeats the stated purpose of the contrnct and breaches a representation of Defendants. 33. Plaintiffs requested that Defendants remove all aluminum trim from the house and refund the $8,477. 34. Defendants refused to refund the $8,477 paid by Plaintiffs, 35, Plaintiffs were required to opemte the air conditioning in the house during the spring in order to provide ventilation to the house thereby incurring additional electric charges, 36. Defendant further breached the contrnct by failing to complete certain aspects of the job in an appropriate and workmanlike manner. 37. Plaintiffs house is now without aluminum trim around the window frames, which work was included in the $8,477 contrnct price. 38. Plaintiffs have been without the use of their $8,477 since April 2, 1996, 39. As a direct and proximate result of Defendant's material breach of the contrnct and related representations, Plaintiffs have suffered direct and consequential dwnages in excess of $10,000.00. WHEREFORE, Plaintiffs Shaun and Patricia Eisenhauer demand judgment in their favor and against the Defendants Sears and American in excess of$IO,OOO.OO, plus lawful interest, the costs of this action, legnl fccs and such other legal and equitable relief as this Honomble Court deems just and proper, COUNT III-UNFAIR TRADE PRACTICES (71 P.S, S 201-1 et,seq) 40. Paragraphs I through 39 are incorpomted herein as if set forth in full. 41. Defendants have engaged in unfair or deceptive acts or pmctices, as described in the Pennsylvania Unfair Tmde Pmctices and Consumer Protection Law, 73 P,S, g @Ol-I et. seq (the "Act"), in the following manner: (a) Representing that Sears perfonned nil ofits home improvement projects through its subsidiary American; (b) Representing that American did nil ofits work in-house and did not subcontract work to third parties; (e) Representing that Sears and American stood behind their work with a 100% customer satisfaction guarantee; (d) Representing that Defendants could properly trim casement windows; (e) Failing to comply with the tenns of the contract; and (e) Engaging in such other fraudulent conduct by which misrepresenting its capabilities and competence created misunderstanding on the part of Plaintiffs, 42, Plaintiffs Hre persons who entered the contract and sought a maintenance-free home for personnl, family and household purposes and, therefore, are subject to protection under the Act. .....! 43, PlaintilTs bring this private cause of action pursunntto Section 3 of the Act, 73 P,S, ~ 201-9,2, 44, As a direct nnd proximate result of Defendnnt's violation of the Act, PlaintilTs have sulTered direct nnd consequential damages in excess of $1 0,000.00. WHEREFORE, PlaintilTs Shaun nnd Patricia Eisenhauer demnndjudgment in their favor nnd against the Defendnnts Sears nnd Americnn in excess of $1 0,000.00, plus treble damages-nnd attorneys fees as provided in the Pennsylvnnia Unfair Trade Practices nnd Consumer Protection Law, lawful interest, the cost of this action, legnl fees nnd such other legal WId equitable relief as this Honorable Court deems just nnd proper. COUNT IV - MISREPRESENTATION 45. Paragraphs I through 44 are incorporated herein by reference as if fully set forth, 46, Prior to entering into the Contract, Defendnnts represented to Plaintiffs: a, That Sears perfonned all of its home improvement projects through its subsidiary Americnn; b. That Americnn did nil ofits work in-house nnd did not subcontract work to third parties; c, That Sears nnd Americnn stood behind their work with a 100% customer satisfaction guarantee; d. That based on the work that Sears nndlor Americnn would perfonn for Plaintiffs, Plaintiffs would never have to paint nny wood trim on their house again. e. 11mt there would be no problem trimming the windows and they had done casement window trim before, 47, Defendants made the above representations in Pnrngraph 46 with full knowledge of the characteristics of Plaintiffs casement windows, 48. Defendants made the above representations in Pnrngraph 46 with full knowledge of the prior problems Defendants had encountered with aluminum trim on casement windows, 49. Defendants representations outlined in Pnrngmph 46 were false in that Defendants either did not have the capability and competence to complete the window trim so that the windows could opemte nonnally, 50. Defendants either failed to exercise reasonable care and due diligence in making the representations outlined in Pnrngraph 46, or made such representations with willful or reckless disregard of the truthfulness of those representations, 51, Defendants made these representations for the purpose of inducing Plaintiffs to enter into the Contract. 52, Plaintiffs relied on Defendant' position as professional home improvement contractors and the representations outlined in Paragraph 46 in entering into the Contract. 53. The representations made by Defendants were material in that Plaintiffs would not have entered into the Contract if not for assurances that all exposed wood trim would be covered eliminating the necessity of future painting, 54. As a direct and proximate result of Defendants material misrepresentation of its capabilities, competence and intent, Plaintiffs have suffered direct and consequential damages in excess of $1 0,000,00, "'/"1" r",J~S SIDING " SOLD, FURNISHED & INSTAllED BV AMERICAN HOME IMPROVEMENT PRODUCTS, INC, A SEARS AUTHORIZED CONTRACTOR ,. ',' , : ( I,Wo /:,<.- I //I:'.~ 'i/,I'"." ~ ~,', 1/ Phono' ( .-',.l) ;.. horoby omploy Amorlcnn Homo Improvomonl Products, Inc., 0 SODn~ Buthorlzad 'contrnclo,', horolnaflor rolotted 10 09 'Contraclor",la furnIsh Inbor nnd matorlats nocossary 10 pot form tho work horolnaftor Bot forth on lho promlso801 tho owner locoted nl: I " . ... I I 'J (.; /)- CI' ",. S t . ,',j;' ZI ,."1;; Slrool If ';;1",' '.....f" I Iy. '-"';"". too _ p _ " , /.' ,'. -"It !\. .'!:.'i., 'I; I' ,'" . 4000 Wlllport Rd, Mlchlnlclburp, PA 17058 : I . ',.-', it CONTRACTOR TO FURNISH ALL LABOR AND MATERIAL NECESSARV TO CUSTOM INSTALL THE FOLLOWING EXTERtOR HOME REMODELING PRODUCTS: P.,.:.c1 Ar"" \ 1, \"tV o SIDING PREMIUM PACKAGE Promlum doublo S' panol ""l <-,It\.(-t,v-, ",0 3/8' backor board '~X ::, 1,:.> V 4' outsldo cornor pOSIS tot' ALL SIDING to INCLUDE ALL NECESSARV CHANNElS/MOlDINGS, oxcluolvo 4.way window soalor systom, galvanlzod slool starlor strip, Siding 10 bolnstollod 10 Iho following aroos: Also to Includa following opllonaf foaturos: Vos No Full coverogo windows -1.L Quonllty rn' 0 Full poverago doora -=-....' Quenllly Q/ 0 Full coverage gorago doors Q/ 0 Cep sills only _ Quanllty 0 0 Porch railings 0 0 o PREMIUM SOFFIT AND FASCIA SVSTEM To Inc!udo all neccossery channeVmoldlngs, 410 1 vented panel rello, vlny'soffll panels, slrlated olumlnum coli Soffil & Fascia 10 bolnstalled to the following araas: 1~';1J:'l.. /~'lrl';' ''','''/''''''/ New shullor. (No, palr...LiJ New louvor venls --3:...... Quanllty Remova eXlsllng siding Furring Enclosura Insldo well Ves G El o o o No o o O' 0' 0'" "')'.~r ";'-/"'/;/"0'\ '0 Color to bo; Also 10 Include the following opllonal foatures: Ves No Vos No, Porch box a.way wrop (jj 0 New gullers 0 0" Porch collings [B' 0 New downspoul 0 13' Fascia IS]' 0 R & R gullerS/downspoUI Q 0 . All Siding and SofflVFascla Is covered by Ihe Stollo Corp" a wholey ownod subsldlery of Ihe Aluminum Corporellon of America Non.Proreted llmlled Lllellme Werranty, Additlonel work to be done 1i,I Clean up & haul eway alllob.relatod debris, Work NOllo be done j I NO WORK WILL BE CONSIDERED UNLESS HEREIN SPECIFIED, NO VERBAL AGREEMENT RECOGNIZED, Thillt..ualon IhaII be MIbIed 10 KceplMCe bv Contrac1.2'''!he eveoc 01 nuyr"alIurIlIOKCOCl4 delivery 01 goodlot performanc;eol ~ coveted ~ein. \he Contrlldol' -.... -....... ,,,- ~ --... p.-,1a1hwi!h lailullI dwnegea.....1mJI.n IlqUliIIo The COIt"'qlnctaTed, if any.lnthefrWnt the PRXlId "'~manulad(J'ltdOlpun:hIMd\lfllh. rei*oCklng_'MJ*la/1,.t;un".CIaI M..ootbe"'ba.lotdel~ C*J1Od bvltrikat, WNlhetconditlont, delarlnObtallWlg 1l'II1.~. and othet ClUS81 bI:yond It. control. The enTlI'e Underllandll'lg and IlgfINmOnl bolweon lha partie, W. c:onlalned r.rMt. Ant IIldrl w:n not IpeClIIed In 1hl!t1orllOl'het1l18lobepad lor by the Buywon alabot ptu. mallll1.,. balialn acocrdWlea wtIh IccepledConuaclorpolldot" Inywor1( ~ be I*bmed by Ihe ContrlClot~1Uallf 10 'M1tlon IUlhOtllalion SIgned by l/Ie Ouyer or Buyot,,1he ptIce lor IUChWOllc thall be.dded 10 the price lOt Iorth herein. Contr.ct , ....... ?j "1 7 '7 To bo f'nancod 0 Cesh upon complellon 0 Down .... P. "' In wllnDss ,^:hereof the Buyar has entered Inlo Ihls transaclion thIs ~_:J '7 day =:ano. ~; 7 7 of /::~.;,.( /.. 19 ~,;. You ~I.IY" m.,. oance. th.. lranMclfon .. an, lime prior to midnight on the Ihlrd buafne.. ., .ft.r .he".'i.Ol ~h/l".n"Cllon. ... 'he .".ched nollc. 01 c.n,C;~II.lIo.n !~~ lor ~n .'r/''''~l~ 01 WI "1Ih'. X ~-:-,; '- X _"'" J..,;;, "'. -" "-. Accepted by Conl'eclorthls day of 19 _ American Home Improvemenl Products, Inc. by I I I I I, j! NtP~12" Whll. . Conlractor's copy Yellow. Purchase,'s copy EXHIBIT A Pink. InstallaUon copy ... , - VERIFICATION I. Patricia S, Eisenhauer. hereby depose and slate that I am a Plaintiff in the above Il1Qlter and tMtthe facts set forth in the foregoing IComplaint"lll'C true and eorrcctto the best of my infol111Qtion, knowledge and belief. This statement is Il1Qde subject to the penalties of I 8 Pa. C.S.A, ~ 4904 relating to unswom falsification to authorities, . Dated: Al'\t:\..,\.<:Jr" \0\ \q~ i(> ~~Ll~ Patricia S. Eisenhauer jmc\sre\misc\vmfim '""-,,, ..'.,."....i. and Donham discussed many things with Plaintiffs, including, filter alia, siding, gutters, trim, etc, 7, Following reasonable investigation, Defendants are without knowledge sufficient to form a belief as to the allegation in '7, and the same is therefore denied. By way of further answer, no representations were made to Plaintiffs by any employee of Defendant Sears. 8. Denied as stated. It is admitted that Plaintiffs entered into a contract with AHIP (but not Sears) for a total price of Eight Thousand Four Hundred and Seventy- Seven Dol1ars ($8,477.00), and that a copy of that contract is attached as Exhibit "A" to Plaintiffs' Complaint. With respect to the al1egation that Plaintiffs entered into this contract "based on these representations" (presumably those set forth in '7 of Plaintiffs' Complaint), fol1owing reasonable investigation, Defendants are without knowledge sufficient to form a belief as to the truth of the averment, and the same are therefore denied. 9. Denied as stated, The referenced window was purchased from AHIP and not Sears. 10, Denied as stated. Defendants incorporate the averments of '6 as though ful1y set forth, By way of further answer, fol1owing reasonable investigation, Defendants are without knowledge sufficient to form a belief as to Plaintiffs' al1eged statements regarding casement windows, and the same are therefore denied. II. Following reasonable investigation, Defendants are without knowledge sufficient to form a belief as to the allegation in '11, and the same is therefore denied, 2 not Sears. 12, Denied as slated. The workmen were agents of Defendant AHIP and 13. Denied as stated, The contract between Plaintiffs and Defendants is a writing which speaks for itself, Plaintiffs characterization of the time spent on the area around the windows as the "overwhelming majority" is denied. Following reasonable investigation, Defendant AHIP lacks information sufficient to form a belief as to the amount of time devoted exclusively to the trim around lhe windows, and the same are therefore denied. 14. Denied as stated. It is admitted that the workmen were employed by J&B Construction, a captive contractor of AHIP's (but nol of Sears), J&B Construction was carefully selected, trained, approved and rated by Defendant AHIP, which stands by construction work performed by J&B Construction. The remaining averments relating to Mr. Schnarrs alleged representations are denied and Defendants incorporate the responsive averments to '7 as though fully set forth herein, 15. Denied as stated, Plaintiffs paid the contract price to AHlP and not Sears, By way of further answer, Plaintiff Patricia Eisenhauer also executed a "customer satisfaction", indicating her complete satisfaction with Defendants' work, A true and correct copy of this document is attached hereto and made a part hereof as Exhibit "A", 16. Following reasonable investigation, Defendants are without information sufficient to form a belief as to the truth of the averments in '16 and the same are therefore denied, 3 COUNT I - DAMAGE TO PROPERTY 23, Paragraphs 1 through 22 arc incorporated herein by reference as if fully set forth. 24, Denied, To the contrary, Defendant AHIP (and not Sears) removed aluminum trim from Plaintiffs' home carefully and in a workmanlike manner. It is denied that AHlP damaged Plaintiffs' window frames as alleged. WHEREFORE, Defendants demand judgment in their favor and against Plaintiffs, together with costs of this action. COUNT II . BREACH OF CONTRACT 25, Paragraphs 1 through 24 are incorporated herein by reference as if fully set forth, 26, Denied as stated, The contract between Plaintiffs and AHIP (and not between Plaintiffs and Sears) is a written agreement which is attached to Plaintiffs' Complaint and which speaks for itself. Plaintiffs' characterization of the same is therefore denied, 27, Denied as stated. Following reasonable investigation, Defendants are without information sufficient to form a belief as to the truth of the averment contained in 127 and the same arc therefore denied. By way of further answer, Defendants incorporate their response to 126 as though fully set forth. 28. Denied as stated. It is admitted that AHIP (and not Sears) was aware that Plaintiffs' house contained casement windows, 5 29, Denied as stated. AHIP's Harrisburg Office had encountered only one (1) prior problem with casement windows, which problem was resolved to the customers' satisfaction. 30, Denied as stated, It is admitted that the window trim installed by AHIP initially precluded the opening of certain windows at Plaintiffs' residence. 31. Denied as stated. Defendants incorporate their responsive avennents set forth in '20 as though fully set forth herein, 32. Denied as stated. The contract between Plaintiffs and Defendant AHIP is a written document, which is attached to Plaintiffs' Complaint as Exhibit "A", and which speaks for itself. Plaintiffs' characterization of the same or of the "stated purpose" of the contract is therefore denied. By way of further answer, Defendants incorporate their response to '7 herein as though set forth in full. 33. Admitted in part and denied in part as stated. It is admitted that Plaintiff made, inter alia, the unreasonable request that all items described in the contract made Exhibit "A" to the Complaint be removed from the house. Any implication that such removal is necessary or proper under the circumstances is expressly denied. By way of further answer, Plaintiff made alternative demands by way of correspondence dated June 10, 1996, attached hereto as Exhibit "B". 34, Admitted in part and denied in part as stated. It is admitted that Defendant AHIP have refused Plaintiffs' unreasonable request that the entire amount paid under the contract be refunded to Plaintiffs, By way of further answer, any implication that such removal is necessary or proper under the circumstances is expressly denied, To the 6 contrary, Defendants have offered 10 refund the porI ion of the contract price allocated to window trim, but Plaintiff's have refused this offer, Plainliffs have received significant benefits from the work performed at their home, as described in Ihe parties' Agreement. 35, Denied. The avermenls of '35 are denied as constituting legal conclusions requiring no responsive pleading, To the extent the same may be deemed averments of fact, they are denied. FOllowing reasonable investigation, Defendants are without information sufficient to form a belief as the truth of the averments contained in '35 and the same are therefore denied. 36. Denied. The averments of '36 constitute legal conclusions requiring no responsive pleading. 37, Admitted in part and denied in part as stated, It is admitted that Plaintiffs' house is now without aluminum trim around certain window frames. By way of further answer, although aluminum trim around the window frame represents a part of the $8,477,00 contract price, said trim work did not account for the majority of Ihis price or, for that matter, a significant percentage of this price, By way of further answer, Defendant AHlP incorporates its responses to '34 as though fully set forth herein. 38. Denied as stated, It is admitted that Plaintiffs paid $8,477.00 011 or about April 2, 1996. By way of further answer, that sum was the contract price, and the price Plaintiffs agreed to pay, By way of further answer, Plaintiffs have received substantially the benefit of their bargain, as set forth in the parties' Agreement. By way of further answer, Defendant AHlP incorporates its responses to '34 as though fully set forth herein. 7 39. Denied, The averments of '39 constitute legal conclusions requiring no responsive pleading. WHEREFORE, Defendants demand judgment in their favor and against Plaintiffs, together with costs of this action. COUNT III - UNFAIR TRADE PRACTICES (7l P.S. 6201-et.sea.) 40. Paragraphs 1 through 39 are incorporated herein as if set forth in full. 41.(a)-(e) Denied. The averments of '41 constitute legal conclusions requiring no responsive pleading. To the extent the same may be deemed averments of fact, the same are denied. Following reasonable investigation, Defendants are without information sufficient to form a belief as to the truth of the averment contained in '41 and the same are therefore denied. By way of further answer, no representations were made to Plaintiffs by any employee of Defendant Sears. 42. Denied, The averments of '42 constitute legal conclusions requiring no responsive pleading. 43. Denied, The averments of '43 constitute legal conclusions requiring no responsive pleading. 44, Denied. The averments of '44 constitute legal conclusions requiring no responsive pleading, WHEREFORE, Defendants demand judgment in their favor and against Plaintiffs, together with costs of this action. 8 ,~. COUNT IV - MISREPRESENTATION 45, Paragraphs I through 44 are incorporated herein by reference as if fully set forth. 46,(a)-(e) Denied. The averments of '46 constitute legal conclusions requiring no responsive pleading. To the extent the same may be deemed averments of fact, the same are denied. Following reasonable investigation, Defendants are without information sufficient to form a belief as to the truth of the averment contained in '46 and the same are therefore denied. By way of further answer, no representations were made to Plaintiffs by any employee of Defendant Sears. 47, Defendants incorporate by reference their responses to '46 as though fully set forth herein. It is admitted that Defendant AHIP was aware that Plaintiffs' home had certain casement windows. 48. Denied, Defendant AHIP incorporates by reference the responsive averments to '46, By way of further answer, following reasonable investigation, Defendant AHIP incorporates the averments of '29 as though fully set forth herein, 49. Denied, The averments of '49 constitute legal conclusions requiring no responsive pleading. By way of further answer, Defendants do have the capability and competence to complete window trim on casement windows, such that the windows could operate normally. 9 50, Denied, The averments of '50 constitute legal conclusions requiring no responsive pleading. By way of further answer, no representations were made to Plaintiffs by any employee of Defendant Sears. 51. Denied. Defendants incorporate by reference the responsive averments to '46 as though fully set forth herein. By way of further answer, no representations were made to Plaintiffs by any employee of Defendant Sears, 52. Denied. The averments of '52 constitute legal conclusions requiring no responsive pleading. To the extent the same may be deemed averments of fact, following reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to Plaintiffs' reliance, By way of further answer, Defendants incorporate by reference the responsive averments to '46 of the Complaint as though fully set forth herein, 53. Denied. The averments of '53 constitute legal conclusions requiring no responsive pleading, To the extent the same may be deemed averments of fact, following reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to Plaintiffs' reliance. By way of further answer, Defendants incorporate by reference their responsive averments to "7, 41 and 46 as though fully set forth herein, By way of further answer, no representations were made to Plaintiffs by any employee of Defendant Sears. 54, Denied. The averments of '54 constitute legal conclusions requiring no responsive pleading, By way of further answer, Plaintiffs have suffered minimal damage, if any. By way of further answer, no representations were made to Plaintiffs by any employee of Defendant Sears, 10 WHEREFORE, Defendants demand judgment in their favor and against Plaintiffs, together with costs of this action. NEW MATTER 55. Defendants incorporate by reference their responsive averments as a first affirmative defense. 56, Plaintiffs' Complaint fails to state a claim upon which relief can be granted as to either Defendant. 57. Plaintiffs' Complaint fails to state a claim against Defendant Sears inasmuch as Plaintiffs contracted with Defendant AHIP only, 58. No representations were made to Plaintiffs by any employee of Defendant Sears. 59. Defendant AHIP's agent Kenneth Fawber recommended that a certain "flange" be installed in order to permit the operation of the windows. 60. Plaintiffs rejected this recommendation. 6 I. AHIP offered to refund a portion of the contract price proportional to the window trim to Plaintiffs. 62, Plaintiffs rejected this offer. 63. Plaintiffs' Complaint is barred by the applicable statute of limitations, 64. Plaintiff Patricia Eisenhauer documented her satisfaction with the work performed by Defendants upon the completion thereof, by signing a leller of satisfaction. 65, The "Installation Review and Customer Satisfaction Statement" is attached hereto and made a part hereof as Exhibit "A", II " .'.~":J1Jl at'l'96 '"1iM0PM M STRAUSs"-"~ED.MGRPbMM P.3/4 1# ~ 7172324015..52 . . Ofrf& ",ar,," ''''Ace '''~ADC''''''A.'A .llaa. ,... tll.' "'.1000 DUANE, MORRIS & Hr;CKSCHER ''''''C.lOO ,,. C"II'P'~OOat ."vO. WAYN&' 'A ,.087 '1'" '~7.~'" ^TTC~NtY!l "T LAW '.01 MA'UIU ulIItn wl\,..""QTO,.. OC ...ol.olle "0111". "" :1011 NOIlTH '1l0NT ITRIlT ",0, 80ll IC03 ""IlIlIIIURQ, 1''' "101.100:1 171'1' U'1'81100 ... ,O,,.L AOAO ,..fI..O ALUfrfTO"H.'1t 1110'.....0 11101 .......0 ' '\lITIII" ..... "ahO tT""f Hew 10"". NY 10.1..0001 ,....... 1'1'1....... IUlTC""O " .....010.".... AOA. C"CUf ""'~. HJ 0.00.....0 June 10, 1996 Rol:lert Schnarr. 4600 Westport Road Mechanicsl:lurg, PA 17055 Dear Rol:lert, We have received your offer of a $1,250 rebate for the siding diaaster that you and your assorted firms have imposed on my wife and X. Needless to say, our patience is now at an end and we are one step away from instituting a lawsuit againat the many vendors lo, involved.. W. contacted you because we wanted to cover the exposed wood on our house to eliminate the n.ce.ai~y of painting. our'primary concern was our windows, Gince they needed the most upkeep. You told us you could cover all the wood and we would never need ~o paint again, You told ua Sears atood. behind a complete satisfaotion guaranty. You told us ~.merican Home Produc~s would do all the work beoause sears did not use subcontractora. We also bought & window from you and asked if the existing casement windows would pose .'problem. You knew we had easement windows. You .aid there would be no problem, You were wrong, Since the non-American Home product. subcontraccor completed the job in early April and w. finished picking up all the ahards of aluminum lying around ehe house, we have I:leen unable to open our window$. This has neoe.aitatea us running our air conditioner on days when the windows wO\,lld. normally be open. You have now concluded. that due to the casings your firm put on our windowa, we can never open them. Consequently, you must now remove all the easings, This mean. our only goal. eliminating ~he necessity of painting, has now failed, Had wa known this would be the reault, we would have neVer contracted wi~h you. ' . We will give you two choices I (1) remove all ~he window casing. and rescore the window frames to their original condition (including filling the holes made by your nail.) and rebate to us D ,,') 0 c:'; ~ -n .' ~--:.. -I ,'"":i- "-;.J ~?i~ rJ',.".- ~J :~ ~- , N ,Jr1 (, , C ".:10 ,") I I,'.: \:; '~IO ::rJ. 'r ., '" '!J - :....... '::-!,:) '- -.. ~ - ' i:.~jnl .. '(~ -'-I :,) .,.~ ::'j ~.q -, ,-.> -<.