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I IN THE COURT OF COMMON PLEAS
I OF CUMBERLAND COUNTY,
I PENNSYLVANIA
I
I
THOMAS M. KLAUS and TAMMY L.
ltLAUS, husband and wife,
Plaintiffs
AMERICAN EAGLE DEVELOPERS, INC.,
a corporation,
Defendants
CIVIL ACTION - LAW
NO. 98-1494 Civil
JURY TRIAL DEMANDED
SECOND AMENDED COMPLAINT
AND NOW, comes the Plaintiffs, Thomas M. Klaus and Tammy L,
Klaus, by and through their attorneys, Gates & Associates, P.C.,
and respectfully represents as follows:
1. Plaintiffs Thomas M. Klaus (hereinafter referred to as
"Plaintiff Tom Klaus") and Tammy L. Klaus (hereinafter referred to
as "Plaintiff Tammy Klaus"), husband and wife, are adult
individuals residing at 319 2nd Street, New Cumberland, Cumberland
County, Pennsylvania 17070.
2, Defendant, American Eagle Developers, Inc., (hereinafter
referred to as "AED"), is a corporation incorporated and licensed
to do business in Pennsylvania with its registered address as 4165
Beehner Road, Pittsburgh, Allegheny County, Pennsylvania 15217,
3. Lawrence E. Maglin is an adult individual and the
secretary/treasurer of the Defendant Corporation, American Eagle
Developers, Inc,
4, As the secretary/treasurer, Lawrence E. Maglin is
authorized to act as the agent for the Defendant Corporation,
American Eagle Developers, Inc. His address is 4165 Beehner Road,
Pittsburgh, Allegheny County, Pennsylvania 15217,
.
.
5. Plaintiff Tom Klaus is legally blind. He is able to see,
with proper lighting, shadows with some distinction of large
shapes; however, he has no color distinction.
6. Plaintiff Tanuny Klaus is legally blind. She cannot see
anything at a distance nor is she able to see anything at night.
She is able to see some color and large bold print with proper
lighting.
7. Plaintiffs Tom and Tammy Klaus both have guide dogs, do
not own an automobile and rely to a significant degree upon their
friends and relatives for assistance with those activities which
they are unable to perform without the sense of sight.
8. On or about October 7, 1998, Lawrence E. Maglin,
secretary/treasurer of the Defendant AED, came to the home of
Plaintiffs Tom and Tammy Klaus soliciting their business.
9. Lawrence E. Maglin repeatedly stated to the Plaintiffs Tom
and Tammy Klaus that his company, the Defendant AED, was competent,
experienced and honest. Lawrence E. Maglin convinced the
Plaintiffs Tom and Tammy Klaus their residence was in great need of
a new siding and his company, the Defendant AED, was the company to
provide them with an expert job.
10. On October 7, 1997, Plaintiffs, Tom and Tammy Klaus
signed a contract, in the presence of Lawrence E. Maglin, with
Defendant AED for various home improvements to their residence
located at 319 2nd Street, New CUmberland, Cumberland County,
Pennsylvania, 17070. (Please refer to Exhibit #1 attached hereto
~nd made a part hereof.)
< .
11 . The contract which the Defendants AED provided to 'the
Plaintiffs Tom and Tammy Klaus contains a clause directing any
controversy and/or claim arising out of this contract to be settled
in accordance with the mediation-arbitration program through the
Better Business Bureau.
12. The Better Business Bureau mediation-arbitration program
does not arbitrate issues concerning punitive damages and/or
attorneys' fees, both which the Plaintiffs, Thomas and Tammy Klaus
are alleging in this matter. As a direct result, the Better
Business Bureau of Western Pennsylvania will not process this
matter to be considered under their arbitration clause. (Please
refer to Exhibit #2 attached hereto and made a part hereof.)
13. In the instant matter, Plaintiffs Tom and Tammy Klaus are
alleging under the Unfair Trade Practices and Consumer Protection
Law (UTPCPL), the Defendant AED, acted unconscionably and in direct
violation of a contractual obligation between the parties and
additionally the Defendant AED's conduct was particularly
egregious, thus entitling them to punitive damages.
14. Plaintiffs Tom and Tammy Klaus have requested in their
prayer, reimbursement for attorney's fees and expenses.
15. Both of these allegations by the Plaintiffs Tom and Tammy
Klaus have resulted in an action which the Better Business Bureau
of Western Pennsylvania will not process for arbitration.
16. Plaintiffs Tom and Tammy Klaus specifically requested the
contract include a clause stating the employees of Defendant AED
would keep the area around their residence cleared of any trash or
. .
debris, due to the fear the Plaintiffs Tom and Tammy Klaus had for
themselves and their dogs falling and/or stepping on debris.
17. The contract identified as Exhibit #1 specifically stated
the following would be done to the residence of Plaintiffs Tom and
Tammy Klaus:
A. Tear off the aluminum siding on the Plaintiffs
Tom and Tammy Klaus's residence prior to the commencement
of their installation of Defendant's siding;
B. Install one-quarter inch (1/4) heavy duty
insulation system to the Plaintiffs Tom and Tammy Klaus's
residence;
C. Check and repair any rotted wood;
D. Install Alcoa Premium Dutch Lap vinyl siding to
Plaintiffs Tom and Tammy Klaus's residence in the color,
"Everest";
E. Install three energy saver custom double-hung
tilt windows to the Plaintiffs 'rom and Tammy Klaus's
residence in the color, "White";
F. Install three pairs of shutters
Plaintiffs Tom and Tammy Klaus's residence in the
"Blue";
to the
color,
G. Install ceiling soffit to front porch;
H. Cover beam on front porch;
I. All work includes labor, materials, life-time
warranty, clean-up, permits and taxes; and
J. Remove fan on first floor right rear of home.
18. When discussing the contract for services to be provided
by the Defendant AED to the Plaintiffs Tom and Tammy Klaus,
Lawrence E. Maglin, repeatedly assured the Plaintiffs Tom and Tammy
Klaus the improvements which Defendant AED was making to their
residence would be of the highest quality.
. .
19. Employees of Defendant AED arrived on Monday, October 13,
1997, and began performing the contract items as identified in
paragraph 17.
20. During the time periOd the employees of AED were working
on the Klauses' residence, the area immediately surrounding the
Plaintiffs' home was continUOUSly littered with various items and
parts of items which had either come-off of the plaintiff'S home,
were being put onto the Plaintiffs' home or was simply garbage
which the employees of AED had left behind.
21. To prevent injury to the Plaintiffs Tom and Tammy Klaus
and their guide dogs, their neighbors frequently piCked-up debris
such as nails and pieces of siding which were left lying on the
steps to the front porch, the planter on the front porch and the
front porch itself, and even the entire sidewalk in front of the
Plaintiffs Tom and Tammy Klaus's residence.
22. The front porch is important to the Plaintiffs Tom and
Tammy Klaus since this is the entry route utilized with their guide
dogs when entering and/or leaving their residence and also where
they often sit with their guide dogs to enjoy the outdoors.
23. Not only did the area which the employees of the
Defendant AED littered affect the ability of the Plaintiffs Tom and
Tammy Klaus and their guide dogs to enter and exit their home, the
litter and garbage of the AED employees extended onto the sidewalk,
porch and porch steps of their neighbor, Linda Hauser who is also
legally blind with a guide dog making her ability to be outside of
her home dangerous.
.
24. Plaintiff Tom Klaus telephoned Lawrence E. Maglin, per
his direction for the handling of any complaints, leaving a message
regarding the trash and garbage left around their residence.
25. Plaintiff Tom Klaus stayed home from work the following
day to discuss the trash and garbage problem with the Defendant
AED's foreman.
26. Both the Defendant AED's foreman and Lawrence E. Maglin
assured Plaintiff Tom Klaus the littering with trash and garbage
would end; but it did not.
27. A day or two later, Plaintiffs Tom and Tammy Klaus
returned home from work to find no one from Defendant AED had been
working at their residence that day. Plaintiff Tom Klaus
telephoned Lawrence Maglin leaving a message questioning the
absence of any AED employees, but received no response.
28. Plaintiff Tom Klaus stayed home from work the following
two (2) days so he would be there to supervise exactly what the
employees of AED were doing at his residence.
29. One morning when Plaintiff Tom Klaus was not at home, and
while the Defendant AED employees were working on the Klauses'
residence the AED employees tripped a breaker causing the
electricity to parts of the Plaintiffs Klauses's residence to be
terminated.
30. Defendant AED employees took no actions to restore
electricity to the Klauses' s residence nor did they inform the
Plaintiff's Tom and l'ammy Klaus the electricity to portions of
their residence had been terminated.
.
31. Plaintiffs Tom and Tammy Klaus did not realize the
electricity to portions of their residence had been terminated
until late that evening when Plaintiff Tom Klaus opened the freezer
door, felt warm air hit his face, heard water running and felt
packages of soft food.
32. Plaintiffs Tom and Tammy Klaus use Dutterer's Premium
Home Food Service to have items of food packaged, labeled and
stored in the freezer for them.
33. Plaintiff Tom Klaus after careful searching and ruling
out all possible causes for the freezer's malfunction, determined
a breaker had been thrown.
34. Plaintiff Tom Klaus t.elephoned Lawrence E. Maglin leaving
a message regarding the incident, but received no response.
35. Plaintiff Tom Klaus stayed home from work the following
day to question the Defendant AED foreman the next morning. The
AED foreman acknowledged they knew their power tools had caused a
breaker to be thrown to the Klauses' residence the previous day and
had done nothing about it.
36. Plaintiffs Tom and Tammy Klaus contacted Dutterer's
Premium Home Food Service. Dutterer's Premium Home Food Service
determined several of the food items, totaling One Hundred Twenty
Dollars and Sixty-Two Cents ($120.62), in their freezer had thawed
during the termination of electricity to the Klauses' residence and
should be replaced. (Please refer to Exhibit #3 attached hereto
and made a part hereof listing the specific food items which had to
be replaced.)
.
37. The employees of Defendant AED concluded their
installation of the siding to the Klauses' residence the week of
October 20-25, 1997.
38. On the day the Defendant AED concluded the installation
of the siding to the Klauses' residence, Plaintiff Tom Klaus and
Defendant AED foreman walked around the outside of the Klauses'
residence. The Defendant AED foreman repeatedly commented on the
high quality of workmanship which they had provided to Plaintiff
Tom Klaus.
39. During this walk, Plaintiff Tom Klaus when using his
hands to explore the siding felt the electric meter, which felt
loose, almost falling off the house. Further examination revealed
the electric meter was only screwed onto the siding not onto the
house itself and was pulling away from the house with the siding to
which it was attached. Plaintiff Tom Klaus pointed this problem
out to the Defendant AED's foreman.
40. The Defendant AED's foreman did not believe this was a
problem but appeared to fix the problem, at least as far as
Plaintiff Tom Klaus was able to determine.
41. The AED's foreman again told Plaintiff Tom Klaus of the
excellent quality of workmanship which the Defendant AED had
performed upon the Klauses' residence. Although uncomfortable,
Plaintiff Tom Klaus had no real reason not to believe the Defendant
AED's foreman.
'.
42. At the request of the Defendant AED's foreman, Plaintiff
Tom Klaus signed a document verifying the excellent quality of
workmanship on the Klauses' residence.
43. Several days later, Lawrence E. Maglin, personally
accompanied the Plaintiff Tom Klaus on a walk around his residence
continuously commenting on the excellent quality of workmanship
which the Defendant AED's employees had performed upon the Klauses'
residence.
44. Plaintiff Tom Klaus wanted to trust these individuals and
believe them. At this time he did not have any significant reason
to question the intentions or the, i.ntegrity of the Defendants AED
and Lawrence E. Maglin.
45. The week of October 27-31, 1997, the Defendant AED's
employees completed the installation of the windows to the Klauses'
residence.
46. After the completion of the installation of the windows
to the Klauses' residence, the Defendant AED's foreman reviewed for
the Plaintiff Tom Klaus the excellent quality of workmanship which
the Defendant AED had performed upon the Klauses' residence.
47. Defendant AED's foreman requested Plaintiff Tom Klaus to
sign a document attesting to the excellent quality of workmanship
which the Defendant AED had provided to the Plaintiff Tom Klaus.
48. Plaintiff Tom Klaus did not in his mind have any reo.,son
to question the statements of the Defendant AED's foreman or
Lawrence E. Maglin. Plaintiff Tom Klaus trusted these individuals,
.
so he did not seek any additional opinions or "eyes" to actually
review the work done by the Defendant AED.
49. Several days after the discussions with the Defendant
AED's foreman and Lawrence E. Maglin, Plaintiff Tom Klaus again
walked around his residence with a friend, will Shatzer, who was
visiting his residence and was a roofer by occupation.
50. Mr. Shatzer immediately identified the extremely poor
quality of workmanship and shared what he observed with Plaintiff
Tom Klaus.
51. Plaintiffs Tom and Tammy Klaus were extremely upset and
concerned due to the trust they had placed in the Defendants AED.
52. Plaintiffs Tom and Tammy Klaus were very concerned with
their responsibility for the loan they had obtained, in the amount
of Thirteen Thousand Dolla:rs and No Cents ($13,000.00), for the
work which the Defendant AED represented they would perform.
53. Plaintiffs Tom and Tammy Klaus were extremely distraught
believing someone had deliberately taken advantage of them as a
result of their disability.
54. Plaintiff Tom Klaus immediately telephoned AED and was
told someone would get back to him, but received no response.
55. Following the completion of the services by AED, the
weather conditions in the area of the Klauses' residence
experienced numerous periods of heavy rain, sleet and slushy snow.
56. Plaintiffs Tom and Tammy Klaus have owned and lived in
their residence for eight and one-half (8 1/2) years. During that
period of time, the Plaintiffs Tom and Tammy Klaus never
.
experienced any episodes of water leaking into any part of their
residence.
57. On or about January 7, 1998, during one period of heavy
rain and sleet, Plaintiff Tom Klaus while sitting in his living
room heard "dripping". Plaintiff Tom Klaus located the "dripping"
when he opened his front door and water gushed from the flashing
between the front door and the storm door, running onto the living
room carpet.
58. Plaintiff Tom Klaus immediately telephoned Lawrence E.
Maglin and left a message for him, but received no response.
59. Plaintiffs Tom and Tammy Klaus contacted their friend
Will Shatzer to conduct an inspection of the Klauses' residence,
additional areas of water leakage were identified; i. e., the
ceiling of Plaintiffs Tom and Tammy Klaus's bedroom, the ceiling of
the living room, the front door, front door entrance, the panelling
immediately above the front door on the wall, and the carpet at the
base of the front door entering into the living room.
60. Following this further identification of damages and poor
workmanship to the Klauses' residence. Plaintiff Tom Klaus again
telephoned Lawrence E. Maglin, indicating if he did not receive a
return telephone call, he would contact the Better Business Bureau.
No return telephone call was received.
61. The following is a listing of all major damages presently
identifiable at the residence located at 319 Second Street, New
CUmberland, PA, 17070:
.
A.
employees
sidewalk,
residence;
Trash and garbage which
carelessly and negligently
porch and porch steps
the
left
of
Defendant AED
on the ground,
the Klauses'
B. Several pieces of the "insulation" which
Defendant AED installed behind the siding of the Klauses'
residence was left in the backyard. Later, contractors
who saw this insulation questioned whether it was "one-
quarter inch (1/4") heavy duty insulation" as agreed to
in the original contract for services;
C. Food items which spoiled due to the Defendant
AED's employees' failure to restore power and/or notify
the Plaintiff's Tom and Tammy Klaus of the termination of
the electricity to their residence. (Please refer to
Exhibit #2.);
D. Commencing at the front of the Klauses'
residence, it is possible to identify, even from a
distance, pieces of trim and siding which are loose and
do not have a good fit and tight seal. In the majority
of areas where two pieces of siding and/or trim meet, the
ends have not been properly cut, joined and sealed. Many
corners on the trim on the Klauses' residence are not
mitered, do not completely meet, and are loose and
improperly attached allowing the elements, insects, and
any other small matter to easily get under the siding and
trim to destroy the wood and other structures.
E. There are pieces of trim around the front porch
and side of the front porch which have been attached with
only grouting and do not join together properly having
large gaps between each piece of trim. At some point in
the near future, the fluctuation of, temperature, the
moisture and even insects, will cause this trim to simply
falloff leaving the entire area exposed;
F. The "Yankee gutter" across the front of the
porch does not function properly. It allows water to
leak-out over the front of the house, onto and in front
of the front porch and steps creating not only a
physically uncomfortable condition, but also an extremely
dangerous one;
G. Following the recent period of much colder
temperatures which was after these photographs were
taken, several areas of siding on the house have begun to
separate from the house. The seams where the siding
joins are such that one can slide their hand behind and
between the siding at those joints;
.
H. Much of the trim on the windows on the side of
the Klauses' residence, was not cut and jointed properly.
I. The contract states Alcoa Life Time gutters and
downspouts will be installed on the home. At the rear of
the Klauses' residence on the second level, one entire
gutter was simply closed-off and not replaced.
Therefore, when there is precipitation of any form, large
amounts of water spill out and around the upper level
gutter splashing down on the metal porch roof and ground
below. This not only creates a substantial amount of
noise, but additionally creates drainage problems on the
ground;
J. The contract provides for new Alcoa Lifetime
gutters and downspouts to be installed at the residence.
Old downspouting was used along the side of the backyard
fence;
K. An examination of the joints between sections of
the downspouting, reveals the joints have been done
incorrectly. The joints should be done so the water
flows through the joint. Therefore the previous section
of downspouting should flow into the next section. The
next section of downspouting should not go inside the
previous section, as it does in the Klauses' downspouts.
This allows water to flow between the downspouting
sections and out of the downspouting at each area of
jointure;
L. The trim and facets on the upper front of the
home are incorrectly done and do not come together at
areas of jointure and are very loose allowing the trim to
be lifted away from the Klauses' residence;
M. The facet covering the edge of the very narrow
porch roof between the third and second levels of the
home does not meet correctly. However, a closer
examination reveals there is nothing holding this edging
onto the residence. The edging can be easily pulled off
without any difficulty;
N. There are numerous evenly-spaced holes along
this narrow porch roof. These holes were made when
Defendants' workers hung their equipment from the porch
ledge.
O. The Defendant AED's employees walked on this
very narrow porch roof. There is a larger hole on the
front of the house above this narrow porch roof which it
is thought might have been compromised when the Defendant
AED's workers walked on the narrow porch roof which is
contributing to the water leakage into the interior of
the residence;
P. The windows were installed on the third floor of
the home were installed incorrectly. The windows should
have been installed to completely come into the residence
to the point of the former windows. Instead there are
large gaps between where the former windows set into the
Klauses' residence and where the new windows set. One of
the windows screens was installed upside down.
Q. The outside of the windows on the third floor
reveals poor workmanship also to the trim around the
windows. Consistently with the other work done to the
Klauses' residence: (1) the trim at areas joining other
pieces of trim does not come together properly; (2)
joints are not mitered properly; (3) joints are not
grouted here or indeed anywhere on the Klauses' residence
to prevent moisture, insects or any other substances from
gaining access under the siding and trim; (4) nails are
hammered into the trim incorrectly denting the trim and
allowing further openings for water and the elements to
enter behind the trim; and (5) there are numerous places
where the entire piece of trim can be lifted away from
the window;
R. As a direct result of the poor workmanship in
paragraphs A through Q, as stated above, there is
virtually nothing to prevent water from entering the
Klauses' residence. The ceiling of Plaintiffs Tom and
Tammy Klaus, the living room ceiling and the living room
wall. The water has caused the paneling on the living
room wall above the front door to swell and begin to peel
off the wall. The inside top of the front door where the
water leaks from between the flashings is swollen to the
point that sometimes the front door cannot be opened or
closed. Therefore, the front door, with the doorbell,
cannot be used and individual'S must come to the back
door which does not have a doorbell. Additionally, Mr.
and Mrs. Klaus cannot exit their home via the front door,
get their mail, etc., without walking all around the
house in the rain, sleet and snow. At the bottom of the
front door water has been leaking onto the carpet so that
the carpet is beginning to rot.
S. The bedroom ceiling which is the room and wall
directly above the front door and the entire front
ceiling in the bedroom are leaking water and experiencing
water damage.
in direct proportion to the changes in their environment and their
inability to be able to trust other individuals in their lives.
68. Plaintiffs Tom and Tammy Klaus rely upon others to verify
and assist with physical changes in their environment.
69. The Plaintiffs environment, since Defendant AED began
work upon the Klaus residence has been continuously altered, even
dangerous at times. It is vital to Plaintiffs Tom and Tammy Klaus
their environment remain stable to enable them to function
independently.
70. Defendant AED took away Plaintiffs Tom and Tammy Klaus's
ability to function independently while they were doing
"improvements" to their home. Plaintiffs Tom and Tammy Klaus's
ability to be independent will continue to be taken from them as
the repairs of the damages to the Klaus residence are completed.
71. Immediately following the failure of attempts to settle
this matter, Plaintiffs Tom and Tammy Klaus paid HT Company, Inc.
to make temporary repairs to the Klaus residence to prevent
additional damages as a result of water entering the Klaus
residence.
COUNT I. BREACH OF CONTRACT
72. Paragraphs 1 through 71 are incorporated as if fully set
forth herein.
73. On October 7, 1998, Plaintiffs Tom and Tammy Klaus and
Defendant AED entered into a valid contract.
74. Between October 13, 1997 through October 31, 1997,
Defendant AED breached several elements of that contract as listed
in Exhibit #1 and paragraph 17), specifically:
A. Item 2 stating Defendant AED would use a one-
quarter inch (1/4") heavy-duty insulation system behind
the siding;
B. Item 6 stating the Defendant AED would use Alcoa
Life-Time gutters and downspouts;
C. Item 8 stating the Defendant AED would install
three (3) energy saving custom double hung windows;
D. Item 10 stating the Defendant AED would install
a ceiling soffit to the front porch; and
E. Item 12 stating the Defendant AED would be
responsible for "all ... Clean-up ...".
75. Implied in the contract between Defendant AED and the
Plaintiffs Tom and Tammy Klaus is the condition the services
contracted for will be done at a level considered to be an
acceptable level in the general community providing similar
services.
76. Plaintiffs Tom and Tammy Klaus obtained the opinion and
evaluation of two (2) additional companies who provide the same or
similar services as the Defendant AED.
These companies are HT
Company, Inc. and TLC Remodeling, Inc.
(Please see their
evaluations and estimates for repair at Exhibits #4 and #5,
respectively, attached hereto and made a part hereof.)
77. It is the opinion of the two expert companies, HT
Company, Inc. and TLC Remodeling, Inc., and an AED foreman, the
work which the Defendant AED performed upon the Klaus residence was
not at a level acceptable to others in the community performing the
same or similar services.
78. The Defendant AED through it's secretary/treasurer and
agent, Lawrence E. Maglin and foreman, Tony, who accompanied
Lawrence E. Maglin on a tour of the Plaintiff's residence, stated
the work which was performed upon the Klaus residence was not
correctly performed and should be either completely redone and/or
repaired.
79. As a direct result of the breach of contract by the
Defendant AED, the Plaintiffs Tom and Tammy Klaus have suffered and
endured the following damages:
A. Services were provided and performed by the
Defendant AED to the Klaus residence which were below the
acceptable and community standards of such services and
work by other companies also providing similar and/or
same services and work (for a specific listing of damages
to the Klaus residence, please see paragraph 50). As a
result such restoration and repairs as are stated j,n the
estimates of HT Company, Inc., and TLC Remodeling, Inc.
which will cost the Plaintiffs Tom and Tammy Klaus
approximately Thirteen Thousand Dollars and No Cents
($13,000.00) (Exhibits #4 and 5, respectively) must be
completed and performed to the Klaus residence;
B. Plaintiffs Tom and Tammy Klaus have had to
replace the spoiled food items at a cost of One Hundred
Dollars and Sixty-two Cents ($120.62). (Please refer to
Exhibit #3 for an itemized listing of the food items
which were spoiled.);
C. Plaintiffs Tom and Tammy Klaus will have to have
their front door entrance, the wood surrounding the front
entrance, the ceiling and wall at the front entrance and
the floor and carpet at the front entrance replaced
and/or repaired;
D. Plaintiffs Tom and Tammy Klaus's bedroom ceiling
where severe water leakage occurred, must be replaced
and/or repaired;
E. Plaintiff Tom Klaus has had to be absent from
his place of employment six (6) days, resulting in a loss
of six days of employment to him;
F. Plaintiffs Tom and Tammy Klaus will have to
employ a cleaning service to assist them when the
interior repairs are completed to their residence which
have resulted from the water leakage into their residence
due to the actions and/or poor workmanship of the
Defendant AED's employees.
WHEREFORE, Plaintiffs, THOMAS M. KLAUS and TAMMY L. KLAUS
respectfully requests this Honorable Court to enter judgement in
their favor and against the Defendant, AMERICAN EAGLE DEVELOPERS,
INC. for damages in an amount exceeding $35,000.00, for damages
past, present and future; lost income, psychological stress and
trauma; attorneys' fees and costs; and for such further and
additional relief as this Honorable Court deems just and proper
under the circumstances.
COUNT II. VIOLATION OF THE UNFAIR TRADE PRACTICES AND
CONSUMER PROTECTION LAW (UTPCPL) (55 19:8-19:52)
80. Paragraphs 1 through 79 are incorporated as if fully set
forth herein.
81. ~19:28. of UTPCPL expressly prohibits the following acts
or practices:
"Making repairs, improvements or replacements on
tangible, real or personal property, of a nature or quality
inferior to or below the standard of that agreed to in writing."
82. ~19:45. of the UTPCPL gives a right of private cause of
action under this act to:
"Any person who purchases or leases goods or
services primarily for personal, family or household
purposes and thereby suffers any ascertainable loss of
money or property, real or personal, as a result of the
use or employment by any person of a method, act or
practice declared unlawful by the Unfair Trade Practices
and Consumer Protection Law (UTPCPL) may bring a private
action under the UTPCPL to recover damages."
83. ~19:49 of the UTPCPL states a successful claimant under
the UTPCPL may recover actual damages or $100.00 whichever is
greater. Actual damages may include reasonable consequential
damages. Treble damages are appropriate where a person has acted
unconscionably and in direct violation of a contractual obligation
between the parties or where a person's conduct has been
particularly egregious.
84. Under the auspices of the UTPCPL act Plaintiffs Tom and
Tammy Klaus are requesting this Honorable Court award them damages
as follows:
A. Treble damages for the actual amount of damage
which the Defendants AED and Lawrence Maglin caused to be
created in the Klaus residence;
B. Damages for the six (6) days which Plaintiff Tom
Klaus had to remain home from his place of employment to
address the poor and inadequate actions and services of
the Defendant AED;
C. The cost of a cleaning service to assist the
Plaintiffs in the restoration of their residence, when
the interior repairs are completed to their residence
which have resulted from the water leakage into their
residence due to the actions and/or poor workmanship of
the Defendant AED's employees.
D. Damages for the severe psychological stress they
have and continue to endure due to their residence being
not only in a state of disrepair, but also due to the
concern with additional even hidden damages from the
severe water leakage and the financial hardship which the
entire incident has wrought upon them.
E. Damages for taking away the Plaintiffs Tom and
Tammy Klaus's ability to trust other unknown individuals
in addit:on to their lost self-confidence to be able to
be sufficient judges of character;
,
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! . In'conlld.r.tlon of ..Id work Indlor mllerllll. or_both;'to b. fumllhd by th~Conlrec'or~..lhl.owner..gfl...,oi!.~
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ConllleiOrTHESUMOF ~-GIIfL-" ~dufJIII~ 'N#J~NUfIIwO~I--I,.,.",~y~.,J. '. J 71 . '~t '~~':I..... ,J.:
.j , . Th. abovI Conlract II lubJ.ct to cradUlpprovl1 Ind a"lanm.nllo I.ndlnglnihtullon OR PAYMENT IN FULL UpOft cOm'p~~,1 ~t
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m.nl Ihln be dUI Ind p'Ylbl. 30 dlYI from dill of..ld nol. .nd compllllon Clrtlncat..thl ramllnlng Inll.llmlnts 10 M PlYlbl1 on Ihl'~~ "
..m. dlY of..ch Iucclldlng month, Ihl IIII Inlllllm.nt 10 bl lor In Imounl lumdlnllo compllll plymlnl of "-llnce of Ihe noleln full.\~' ,
Thll Conll1lcl Ihlll nol be binding uPQn th. Conlllclor unmlcc.plld by lh. Contr.ctor. Morlover, no addlUon. In.,.Uon of Ih!t ~,
" " . .~nlrlct Ihlll 1M blndlng.on Ihe Conlractor unl...th. lime be In writing Ind ICClplld by the Conlrlctor In.lllel m~nn";:t~t; ":.~{1;r~~~~'
; '; I" : : TheConlrlctor Ih.1I fumllh Ih. mlllrllll for Ihe wark Ind compl.li Ihe wOrk h.rlln Iplclned la 'b~ donel~ ":il1,ibitinu~f~~:~~:~
.;. ; .WOrkmlnl~~ =~::'h'~bY "pra..ntl Ihil h.lllhe Own" In ill 0; th. pramll.. wherlon Ih. Impro';.m'~,'h~~iri i.;~dn'd ~~t:~i~;
, .' ,'.. , mid. h.vlng a d..d ror Ih. ..m., Th. "prl"ntIUon la mid. by Ihl Own". knowlnglhlllhl Contractorrell.. upon It In IccepUng "II~~),
,I \., contllet.1lth.rl b. mo" Ihln onl Own.r.thlY Ih.1I be Jolnlly Ind IIvI"lIy Ulble hlr.on, . ,.:', "~'" ,.;\.t"'., ji.',~, Lill.'
1lI11 Contracllhlll bind Ih.hllre. ...culore, admlnlltrllora, IUCCIISOrt and I ;algnl or the plrIJ.a h.reto, -'. ':r' ;'~:. ~~""'~.i"
And 1111 'urth" Igreld lhal U Ihl Own" Cinelli Ihll conlr.ct II.ny IIml b.fora commlnclm.nt or Ihl work: Ihl'; Ihe rkaUldil~
dlmlgll Irlllng 'rOm Call. .nd I.pln..a n.c....'lIy Incldlntlo the bUlln"l 01 thl Contractor In connecllon with lhll conlflct _mounl or
Ih. ~um.oITln (to") P"cenl ofth. abovI conlllct prle.,.whlch 1~ld .um Ihl Own.r undlrtak.. I~~. ~gl'l~IIO,.~r r~rthW~I_~'.~~;.i!i1.),'~k
Thl OW"" hlrlby c.rtlfllllhat h. h.. "Id 'hll Ig"lmlni Ind Ihlt there II no undlrtllndlng b~iW~ln tha Plrtlli, ~.~To~'I:R~
olhlrwl.., lhln thll contaln.d In thll Igrllm.nl. Ind Ig".. lhlt Ihl ..Id Contreelor II not ralponllbl. nor bound by Iny "p;'lIl1tauOnl',.
nol conlllnltd In lhll Igrll!,"nl. mad. by ~ny ollta aglnla, unll" lh. ..me b. reduced 10 wrltlnglnd algnld bylhe ConlfletOl':'!~,l~t. ;'1,-~I'fl:. '
, Any controv.rty or el.lm Iflllng oul Dr, or "lllIng 10 thll conlrlct, or Iny brlleh lhlrtiof, Ihlll b~ ..llIld I~ IcCOrdln~ ~iti~th~';\~~f
medIIUon'lrbltr.lJon program II dlYllop.d byth. Siller BUlln"l BUIIIU Ine,. Ind Ih. CommerelllArbltrlUon rul.. Dr th.Amlrlcan' t_~:'[~ii1i
ArbUraUonAlSoellUon, Ind judg,mlrll upon thl IWlrd by thlarbllratorCI) m.y b. .nter.d In Iny court hivIng JurtldlcUon Ihlr.of. pravldld I': ti,
.thl Ito"..ld mldlltlon.arbltrallon program I. In,mut'd wllhln Iw.lve (t2) monlhl 0' Ihl d.t. 0' Ihll conlrlct. _ . ,. '.' :::~'d:;'::(':' "t. .
THE OWNER MAY CANCEL TfilS TRANSACTION AT ANY TIME PRIOR TO MIONIGHT OF THE THIRD SUSINESS DA. ~A. FiE-R'.iFf ..
THE DATE OFTHISTRANSACTION BY NOTIFYING THE CONTRACTOR IN WRITING. . . . ;:: ~ ::' "\1~j~ .
IN WITNESS WHEREOF,Inlendlng 10 be legillv bound. the Owner hilS herunlo setlhe hand and seal 'of I~ ~r Ihl;':;Z.:.~i'~;t I ~ 'i
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Feb. 03 1998 12:271'11 P2
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1-888-585-9373
84 E. Uwchllll AVIlnue
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!xlon, PA 19341
RemodelJng, Inc.
PROJECT SPECIFICATIONS
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F'eI>. llJ 1998 12:2a'M P3
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1-888-585.9373
IW E. UwdIIan AVlInutt
Suite .418
!xtan. PA 19341
Remodeling, Inc.
PROJECT SPECIFICATIONS
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84 e. Uwdllan Avenue
Suite 418
Exton. PA 19341
RemodelJng, Inc.
PROJECT SPECIFlCAnONS
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1-888-585-9373
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Remodeling, Ioe.
PROJECT SPECIFICATIONS
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VB.
I IN TIlE COURT OF COMMON PLEAS
I OF COMBERLAND COUNTY,
I PENNSYLVANIA
I
:
: CIVIL ACTION - LAW
NO, 98-1494 Civil
THOMAS H. KLAUS and TAMMY L.
KLAUS, hUllband and wife,
Plaintiffs
AMERICAN EAGLE DEVELOPERS, INC.,
a corporation,
, Defendants
JURY TRIAL DEMANDED
SECOND AMENDED COMPLAINT
AND NOW, comes ~he Plaintiffs, Thomas M. Klaus and Tammy L.
Klaus, by and through their attorneys, Gates & Associates, P.C.,
and respectfully represents as follows:
1. Plaintiffs Thomas M. Klaus (hereinafter referred to as
"Plaintiff Tom Klaus") and Tammy L. Klaus (hereinafter referred to
as "Plaintiff Tammy KlausU), husband and wife, are adult
individuals residing at 319 2nd Street, New CUmberland, CUmberland
County, Pennsylvania 17070.
2. Defendant, American Eagle Developers, Inc., (hereinafter
referred to as UAEDU), is a corporation incorporated and licensed
to do business in Pennsylvania with its registered address as 4165
Beehner Road, Pittsburgh, Allegheny County, Pennsylvania 15217.
3. Lawrence E. Maglin is an adult individual and the
secretary/treasurer of the Defendant Corporation, American Eagle
Developers, Inc.
4. As the secretary/treasurer, Lawrence E. Maglin is
,;
authorized to act as the agent for the Defendant Corporation,
Am~rican Eagle Developers, Inc. His address is 4165 Beehner Road,
Pittsburgh, Allegheny County, Pennsylvania 15217.
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5. Plaintiff Tom Klaus is legally blind. He is able to see,
with proper lighting, shadows with some distinction of large
shapes; however, he has no color distinction.
6. Plaintiff Tammy Klaus is legally blind. She cannot see
anything at a distance nor is she able to see anything at night.
She is able to see some color and large bold print with proper
lighting.
7. Plaintiffs ~om and Tammy Klaus both have guide dogs, do
not own an automobile and rely to a significant degree upon their
friends and relatives for assistance with those activities which
they are unable to perform without the sense of sight.
8. On or about October 7, 1998, Lawrence E. Maglin,
secretary/treasurer of the Defendant AED, came to the home of
Plaintiffs Tom and Tammy Klaus soliciting their business.
9. Lawrence E. Maglin repeatedly stated to the Plaintiffs Tom
and Tammy Klaus that his company, the Defendant AED, was competent,
experienced and honest.
Lawrence E. Maglin convinced the
Plaintiffs Tom and Tammy Klaus their residence was in great need of
a new siding and his company, the Defendant AED, was the company to
provide them with an expert job.
10 .On October 7, 1997, Plaintiffs, Tom and Tammy Klaus
signed a contract, in the presence of Lawrence E. Maglin, with
Defendant AED for various home improvements to their residence
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located at 319 2nd Street, New CUmberland, CUmberland County,
Pennsylvania, 17070. (Please refer to Exhibit #1 attached hereto
and made a part hereof.)
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11. The contract which the Defendants AED provided to 'the
Plaintiffs Tom and Tammy Klaus contains a clause directing any
controversy and/or claim arising out of this contract to be settled
in accordance with the mediation-arbitration program through the
Better Business Bureau.
12. The Better Business Bureau mediation-arbitration program
does not arbitrate issues concerning punitive damages and/or
attorneys' fees, bot~which the Plaintiffs, Thomas and Tammy Klaus
are alleging in this matter.
As a direct result, the Better
Business Bureau of Western. Pennsylvania will not process this
matter to be considered under their arbitration clause.
(Please
refer to Exhibit #2 attached hereto and made a part hereof.)
13. In the instant matter, Plaintiffs Tom and Tammy Klaus are
alleging under the Unfair Trade Practices and Consumer Protection
Law (UTPCPL), the Defendant AED, acted unconscionably and in direct
violation of a contractual obligation between the parties and
additionally the Defendant AED's conduct was particularly
egregious, thus entitling them to punitive damages.
14. Plaintiffs Tom and TanunyKlaus have requested in their
prayer, reimbursement for attorney's fees and expenses.
15. Both of these allegations by the Plaintiffs Tom and Tanuny
Klaus have resulted in an action which the Better Business Bureau
of Western Pennsylvania will not process for arbitration.
16.
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Plaintiffs Tom and Tammy Klaus specifically requested the
contract include a clause stating the employees of Defendant AED
would keep the area around their residence cleared of any trash or
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debris, due to the fear the Plaintiffs Tom and Tammy Klaus had for
themselves and their dogs falling and/or stepping on debris.
17. The contract identified as Exhibit #1 specifically stated
the following would be done to the residence of Plaintiffs Tom and
Tammy Klaus:
A. Tear off the aluminum siding on the Plaintiffs
Tom and Tammy Klaus's residence prior to the commencement
of their installation of Defendant's siding;
B. In13tap one-quarter inch (J./4) heavy duty
insulation system to the Plaintiffs T(.'I':\ and Tammy Klaus's
residence;
C. Check and repair any rotted wood;
D. Install Alcoa Premium Dutch Lap vinyl siding to
Plaintiffs Tom and Tammy Klaus's residence in the color,
"Everest";
E. Install three energy saver custom double-hung
tilt windows to the Plaintiffs Tom and Tammy Klaus's
residence in the color, "White";
F.
Plaintiffs
"Blue";
Install three pairs of shutters to the
Tom and Tammy Klaus's residence in the color,
G. Install ceiling soffit to front porch;
H. Cover beam on front porch;
I. All work includes labor,' materials, life-time
warranty, clean-up, permits and taxes; and
J. Remove fan on first floor right rear of home.
18. When discussing the contract for services to be provided
by the Defendant AED to the Plaintiffs Tom and Tammy Klaus,
Lawrence E. Maglin, repeatedly assured the Plaintiffs Tom and Tammy'
Klaus the improvements which Defendant AED was making to their
residence would be of the highest quality.
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19. Employees of Defendant AED arrived 'on Monday, October 13,
1997, and began performing the contract items as identified in
paragraph 17.
20. During the time period the employees of AED were working
on the Klauses' residence, the area immediately surrounding the
Plaintiffs' home was continuously littered with various items and
parts of items which had either come-off of the Plaintiff's home,
were being put onto the Plaintiffs' home or was simply garbage
which the employees of AED had left behind.
21. To prevent injury to the Plaintiffs Tom and Tammy Klaus
and their guide dogs, their neighbors frequently piCked-up debris
such as nails and pieces of siding which were left lying on the
steps to the front porch, the planter on the front porch and the
front porch itself, and even the entire sidewalk in front of the
Plaintiffs Tom and Tammy Klaus's residence.
22. The front porch is important to the Plaintiffs Tom and
Tammy Klaus since this is the entry route utilized with their guide
dogs when entering and/or leaving their residence and also where
they often sit with their guide dogs to' enjoy the outdoors.
23. Not only did the area which the employees of the
Defendant AED littered affect the ability of the Plaintiffs 'l'om and
Tammy Klaus and their guide dogs to enter and exit their home, the
litter and garbage of the AED employees extended onto the sidewalk,.....
porch and porch steps of their neighbor, Linda Hauser who is also
legally blind with a guide dog making her ability to be outside of
her home dangerous.
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24. Plaintiff Tom Klaus telephoned Lawrence E. Maglin, per
his direction for the handling of any complaints, leaving a message
regarding the trash and garbage left around their residence.
25. Plaintiff Tom Klaus stayed home from work the following
day to discuss the trash and garbage problem with the Defendant
AED's foreman.
26. Both the Defendant AED's foreman and Lawrence E. Maglin
assured Plaintiff To~ Klaus the littering with trash and garbage
would end; but it did not.
27. A day or two later, Plaintiffs Tom and TalTDnY Klaus
returned home from work to find no one from Defendant AED had been
working at their residence that day.
Plaintiff Tom Klaus
telephoned Lawrence Maglin leaving a message questioning the
absence of any AED employees, but received 110 response.
28. Plaintiff Tom Klaus stayed home from work the following
two (2) days so he would be there to supervise exactly what the
employees of AEC were doing at his residence.
29. One morning when Plaintiff Tom Klaus was not at home, and
while the Defendant AED employees were working on the Klauses'
residence the AED employees tripped a breaker causing the
electricity to parts of the Plaintiffs Klauses's residence to be
terminated.
30. Defendant AED employees took no actions
electricity to the Klauses' s residence nor did they
to restore
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inform the
Plaintiff's Tom and Tammy Klaus the electricity to portions of
their residence had been terminated.
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31. Plaintiffs Tom and Tammy Klaus did not realize the
electricity to portions of their residence had been terminated
until late that evening when Plaintiff Tom Klaus opened the freezer
door, felt warm air hit his face, heard water running and felt
packages of soft food.
32. Plaintiffs Tom and Tammy Klaus use Dutterer's Premium
Home Food Service to have items of food packaged, labeled and
stored in the freeze~ for them.
33. Plaintiff Tom Klaus after careful searching and ruling
out all possible causes for the freezer's malfunction, determined
a breaker had been thro~al.
34. Plaintiff Tom Klaus telephoned Lawrence E. Maglin leaving
a message regarding the incident, but received no response.
35. Plaintiff Tom Klaus stayed home' from work the following
day to question the Defendant AED foreman the next morning. The
AED foreman acknowledged they knew their power tools had caused a
breaker to be thrown to the Klauses' residence the previous day and
had done nothing about it.
36. Plaintiffs Tom and Tammy Klaus contacted Dutterer's
Premium Home Food Service. Dutterer's Premium Home Food Service
determined several of the food items, totaling One Hundred Twenty
Dollars and Sixty-Two Cents ($120.62), in their freezer had thawed
during the termination of electricity to the Klauses' residence and
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should be replaced. (Please refer to Exhibit #3 attached hereto
and made a part hereof listing the specific food items which had to
be replaced.) ,
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42. At the request of the Defendant ABD's foreman, Plaintiff
Tom Klaus signed a document verifying the excellent quality of
workmanship on the Klauses' residence.
43. Several days later, Lawrence B. Maglin, personally
accompanied the Plaintiff Tom Klaus on a walk around his residence
continuously commenting on the excellent quali ty of workmanship
which the Defendant AED's employees had performed upon the Klauses'
residence.
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44.
Plaintiff Tom Klaus wanted to trust these individuals and
believe them. At this time he did not have any significant reason
to question the intentions or the integrity of the Defendants AED
and Lawrence E. Maglin.
45. The week of October 27-31, 1997, the Defendant AED's
employees completed the installation of the windows to the Klauses'
residence.
46. After the completion of the installation of the windows
to the Klauses' residence, the Defendant AED' s foreman reviewed for
the Plaintiff Tom Klaus the excellent quality of workmanship which
the Defendant AED had performed upon the Klauses' residence.
47. Defendant AED's foreman requested Plaintiff Tom Klaus to
sign a document attesting to the excellent quality of workmanship
which the Defendant AED had provided to the Plaintiff Tom Klaus.
48. Plaintiff Tom Klaus did not in his mind have any reason
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to question the statements of the Defendant AED's foreman or
Lawrence E. Maglin. Plaintiff Tom Klaus trusteti these individuals,
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so he did not seek any additional opinions' or "eyes" to actually
review the work done by the Defendant AED.
49. Several days after the discussions with the Defendant
AED's foreman and Lawrence E. Maglin, Plaintiff Tom Klaus again
walked around his residence with a friend, Will Shatzer, who was
visiting his residence and was a roofer by occupation.
SO. Mr. Shatzer immediately identified the extremely poor
quality of workmansh~ and shared what he observed with Plaintiff
Tom Klaus.
5~. Plaintiffs Tom and Tammy Klaus were extremely upset and
concerned due to the trust they had placed in the Defendants AED.
52. Plaintiffs Tom and Tammy Klaus were very concerned with
their responsibility for the loan they had obtained, in the amount
of Thirteen Thousand Dollars and No Cents ($13,000.00), for the
work which the Defendant AED represented they would perform.
53. Plaintiffs Tom and Tammy Klaus were extremely distraught
believing someone had deliberately taken advantage of them as a
result of their disability.
54. Plaintiff Tom Klaus immediately telephoned AED and was
told someone would get back to him, but received no response.
55. Following the completion of the services by AED, the
weather conditions in the area of the Klauses' residence
experienced numerous periods of heavy rain, sleet and slushy snow.
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56. Plaintiffs Tom and Tammy Klaus have owned and lived in
their residence for eight and one-half (8 1/2) years. During that
period of time, the Plaintiffs Tom and Tammy Klaus never
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experienced any episodes of water leaking into any part of their
r.esidence.
57. On or about January 7, 199B, during one period of heavy
rain and sleet, Plaintiff Tom Klaus while sitting in his living
room heard "dripping". Plaintiff Tom Klaus located the "dripping"
when he opened his front door and water gushed from the flashing
between the front door and the storm door, running onto the living
room carpet.
58. Plaintiff Tom Klaus immediately telephoned Lawrence E.
Maglin and left a message for him, but received no response.
59. Plaintiffs Tom and Tammy Klaus contacted their friend
Will Shatzer to conduct an inspection of the Klauses' residence,
additional areas of water leakage were identified; i. e., the
ceiling of Plaintiffs Tom and Tammy Klaus's bedroom, the ceiling of
the'living room, the front door, front door entrance, the panelling
immediately above the front door on the wall, and the carpet at the
base of the front door entering into the living room.
60. Following this further identification of damages and poor
workmanship to the Klauses' residence. ' Plaintiff Tom Klaus again
telephoned Lawrence E. Maglin, indicating if he did not receive a
return telephone call, he would contact the Better Business Bureau.
No return telephone call was received.
61. The following is a listing of all major damages presently
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identifiable at the residence located at 319 Second Street, New
CUmberland. PA, 17070:
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A.
employees
sidewalk,
residence;
Trash and garbage which the
carelessly and negligently left
porch and porch steps of
Defendant AED
on the ground,
the Klauses'
B. Several pieces of the "insulation" which
Defendant AED installed behind the siding of the Klauses'
residence was left in the backyard. Later, contractors
who saw this insulation questioned whether it was "one-
quarter inch (1/4") heavy duty insulation" as agreed to
in the original contract for services;
C. Food items which spoiled due to the Defendant
AED's employees' failure to restore power and/or notify
the Plaintiff's 10m and Tammy Klaus of the termination of
the electricity to their residence. (Please refer to
Exhibit #2.);
D. Commencing at the front of the Klauses'
residence, it is possible to identify, even from a
distance, pieces of trim and siding which are loose and
do not have a good fit and tight seal. In the majority
of areas where two pieces of siding and/or trim meet, the
ends have not been properly cut, joined and sealed. Many
corners on the trim on the Klauses' residence are not
mitered, do not completely meet, and are loose and
improperly attached allowing the elements, insects, and
any other small matter to easily get under the siding and
trim to destroy the wood and other structures.
E. There are pieces of trim around the front porch
and side of the front porch which have been attached with
only grouting and do not join together properly having
large gaps between each piece of trim. At some point in
the near future, the fluctuation of, temperature, the
moisture and even insects, will, cause this trim to simply
falloff leaving the entire area exposed;
F. The "Yankee gutter" across the front of the
porch does not function properly. It allows water to
leak-out over the front of the house, onto and in front
of the front porch and steps creating not only a
physically uncomfortable condition, but also an extremely
dangerous one;
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G. Following the recent period of much colder .,..
temperatures which was after these photographs were
taken, several ar~as of siding on the house have begun to
separate from the house. The seams where the siding
joins are such that one can slide their hand behind and
between the siding at those joints;
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H. Much of the trim on the windows on the side of
the Klauses' residence, was not cut and jointed properly.
I. The contract states Alcoa Life Time gutters and
downspouts will be installed on the home. JI,t. the rear of
the Klauses' residence on the second level, one entire
gutter was simply closed-off and not replaced.
Therefore, when there is precipitation of any form, large
amounts of water spill out and around the upper level
gutter splashing down on the metal porch roof and ground
below. This not only creates a substantial amount of
noise, but additionally creates drainage problems on the
ground;
l ~7 J. The coptract provides for new Alcoa Lifetime
~tters and downspouts to be installed at the residence.
Old downspouting was used along the side of the backyard
fence;
K. An examination of the joints between sections of
the downspouting, reveals the joints have been done
incorrectly. The joints should be done so the water
flows through the joint. Therefore the previous section
of downspouting should flow into the next section. The
next section of downspouting should not go inside the
previous section, as it does in the Klauses' downspouts.
This allows water to flow between the downspouting
sections and out of the downspouting at each area of
jointure;
L. The trim and facets on the upper front of the
home are incorrectly done and do not come together at
areas of jointure and are very loose allowing the trim to
be lifted away from the Klauses' residence;
M. The facet covering the edge of the very narrow
porch roof between the third and'second levels of the
home does not meet correctly. However, a closer
examination reveals there is nothing holding this edging
onto the residence. The edging can be easily pulled off
without any difficulty;
N. There are numerous evenly-spaced holes along
this narrow porch roof. These holes were made when
Defendants' workers hung their equipment from the porch
ledge.
O. The Def~ndant AED's employees walked on this
very narrow porch roof. There is a larger hole on the
front of the house above this narrow porch roof which it
is thought might have been compromised when the Defendant
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ABC's workers walked on the narrow porch roof which is
contributing to the water leakage into the interior of
the residence;
P. The windows were installed on the third floor of
the home were installed incorrectly. The windows should
have been installed to completely come into the residence
to the point of the former windows. Instead there are
large gaps between where the former windows set into the
Klauses' residence and where the new windows set. One of
the windows screens was installed upside down.
Q. The outside of the windows on the third floor
reveals poor worlananship also to the trim around the
windows. Consi&tently with the other work done to the
Klauses' residence: (1) the trim at areas joining other
pieces of trim does not come together properly; (2)
joints are not mitered properly; (3) joints are not
grouted here or indeed anywhere on the Klauses' residence
to prevent moisture, insects or any other substances from
gaining access under the siding and trim; (4) nails are
hammered into the trim incorrectly denting the trim and
allowing further openings for water and the elements to
enter behind the trim; and (5) there are numerous places
where the entire piece of trim can be lifted away from
the window;
R. As a direct result of the poor worlananship in
paragraphs A through Q, as stated above, there is
virtually nothing to prevent water from entering the
Klauses' residence. The ceiling of Plaintiffs Tom and
Tammy Klaus, the living room ceiling and the living room
wall. The water has caused the paneling on the living
room wall above the front door to swell and begin to peel
off the wall. The inside top of the front door where the
water leaks from between the flashings is swollen to the
point that sometimes the front door cannot be opened or
closed. Therefore, the front door, with the doorbell,
cannot be used and individual's must come to the back
door which does not have a doorbell. Additionally, Mr.
and Mrs. Klaus cannot exit their home via the front door,
get their mail, etc., without waiking all around the
house in the rain, sleet and snow. At the bottom of the
front door water has been leaking onto the carpet so that
the carpet is beginning to rot.
S. The bedroom ceiling which is the room and wall
directly above t;he front door and the entire front
ceiling in the bedroom are leaking water and experiencing
water damage.
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in direct proportion to the changes in their environment and their
inability to be able to trust other individuals in their lives.
68. Plaintiffs Tom and Tammy Klaus rely upon others to verify
and assist with physical changes in their environment.
69. The Plaintiffs environment, since Defendant AED began
work upon the Klaus residence has been continuously altered, even
dangerous at times. It is vital to Plaintiffs Tom and Tammy Klaus
their environment r~main stable to enable them to function
independently.
70. Defendant AED took away Plaintiffs Tom and Tammy Klaus's
ability to function independently while they were doing
"improvements" to their home. Plaintiffs Tom and Tammy Klaus's
ability to be independent will continue to be taken from them as
the repairs of the damages to the Klaus residence are completed.
71. Immediately following the failure of attempts to settle
this matter, Plaintiffs Tom and Tammy Klaus paid HT Company, Inc.
to make temporary repairs to the Klaus residence to prevent
additional damages as a result of water entering the Klaus
residence.
COUNT I. BREACH OF CONTRACT
72. Paragraphs 1 through 71 are incorporated as if fully set
forth herein.
73. On October 7, 1998, Plaintiffs Tom and Tammy Klaus and
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Defendant AED entered into a valid contract.
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74. Between October 13, 1997 through October 31, 1997,
Defendant AED breached several elements of that contract as listed
in Exhibit #1 and paragraph 17), specifically:
A. Item 2 stating Defendant AED would use a one-
quarter inch 11/4") heavy-duty insulation system behind
the siding;
B. Item 6 stating the Defendant AED would use Alcoa
Life-Time gutters and downspouts;
C. Item 8 stating the Defendant AED would install
three (3) energy, saving custom double hung windows;
D. Item 10 stating the Defendant AED would install
a ceiling soffit to the front porch; and
E. Item 12 stating the Defendant AED would be
responsible for "all ... clean-up ...".
75. Implied in the contract between Defendant AED and the
Plaintiffs Tom and Tammy Klaus is the condition the services
contracted for will be done at a level considered to be an
acceptable level in the general community providing similar
services.
76. Plaintiffs Tom and Tammy Klaus obtained the opinion and
evaluation of two (2) additional companies who provide the same or
similar services as the Defendant AED'.
These companies are HT
Company, Inc. and TLC Remodeling, Inc.
(Please see their
evaluations and estimates for repair at Exhibits #4 and #5,
respectively, attached hereto and made a part hereof.)
77. It is the opinion of the two expert companies,
Company, Inc. and TLC Remodeling, Inc., and an AED foreman,
HT
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the
work which the Defendant AED performed upon the Klaus residence was
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E. Plaintiff Tom Klaus has had to be absent from
his place of employment six (6) days, resulting in a loss
of six days of employment to him;
F. Plaintiffs Tom and Tammy Klaus will have to
employ a cleaning service to assist them when the
interior repairs are completed to their residence which
have resulted from the water leakage into their residence
due to the actions and/or poor workmanship of the
Defendant AED's employees.
ifHEREFORE, Plaintiffs, THOMAS M. KLAUS and TAMMY L. KLAUS
respectfully requests this Honorable Court to enter judgement in
,
their favor and against the Defendant, AMERICAN EAGLE DEVELOPERS,
INC. for damages in an amount exceeding $35,000.00, for damages
past, present and future; lost income, psychological stress and
trauma; attorneys' fees and costs; and for such further and
additional relief as this Honorable Court deems just and proper
under the circumstances.
COUNT II. VIOLATION OF THE UNFAIR TRADE PRACTICES AND
CONSUMER PROTECTION LAW (UTPCPL) (55 19:8-19:52)
80. Paragraphs 1 through 79 are incorporated as if fully set
forth herein.
81. ~19:28. of UTPCPL expressly prohibits the following acts
or practices:
"Making repairs, improvements or replacements on
tangible, real or personal property, of a nature or quality
inferior to or below the standard of that agreed to in writing."
82. ~19:45. of the UTPCPL gives a right of private cause of
action under this act to:
./
"Any person who purchases or leases goods or
services primarily for personal, family or houC"ehold
purposes and thereby suffers any ascertainable loss of
money or property, real or personal, as a result of the
use or employment by any person of a method, act or
"
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practice declared unlawful by the Unfair Trade Practices
and Consumer Protection Law (UTPCPL) may bring a private
action under the UTPCPL to recover damages."
83. ~19:49 of the UTPCPL states a successful claimant under
the UTPCPL may recover actual damages or $100.00 whichever is
greater. Actual damages may include reasonable consequential
damages. Treble damages are appropriate where a person has acted
unconscionably and in direct violation of a contractual obligation
between the partie~ or where a person's conduct has been
particularly egregious.
84. Under the auspices of the UTPCPL act Plaintiffs Tom and
Tammy Klaus are requesting this Honorable Court award them damages
as follows:
A. Treble damages for the actual amount of damage
which the Defendants AED and Lawrence Maglin caused to be
created in the Klaus residence;
B. Damages for the six (6) days which Plaintiff Tom
Klaus had to remain home from his place of employment to
address the poor and inadequate actions and services of
the Defendant AED;
C. The cost of a cleaning service to assist the
Plaintiffs in the restoration of their residence, when
the interior repairs are completed to their residence
which have resulted from the water leakage into their
residence due to the actions and/or poor workmanship of
the Defendant AED's employees.
D. Damages for the severe psychological stress they
have and continue to endure due to their residence being
not only in a state of disrepair, but also due to the
concern with additional even hidden damages from the
severe water leakage and the financial hardship which the
entire incident has wrought upon them. ,/
E. Damages for taking away the Plaintiffs Tom and
Tammy Klaus's ability to trust other unknown individuals
in addition to their lost self-confidence to be able to
be sufficient judges of character;
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THOMAS M, ltLAUS and TAMMY L, I IN THE COURT 011' COMMON PLBAS
ltLAUS, husband and wife, I OF CUMBERLAND COUN'l'Y,
plaintiffS I PENNSYLVANIA
I
vs. I
. CIVIL ACTION - ~w {
,
AMERICAN BAGLE DEVELOPERS, INC., I NO'yf_ / 4ti (l.u~L
a corporation and LAWRENCE E, ,
,
MAGLIN, individually, I
Defendants 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 notice are served,
by entering a written 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 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 ~E
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PENNSYLVANIA 17013
TELEPHONE NUMBER: (717) 249-3166
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4. Plaintiff Tom Klaus is legally blind. He is able to see,
with proper lighting, shadows with some distinction of large
shapes I however, he has no color distinction.
S. Plaintiff Tammy Klaus is legally blind. She cannot see
anything at a distance nor is she able to see anything at night.
She is able to see some color and large bold print with proper
lighting.
6. Plaintiffs Tom and Tammy Klaus both have guide dogs, do
not own an automobile and rely to a significant degree upon their
friends and relatives for assistance with those activities which
they are unable to perform without the sense of sight.
7. On or about October 7, 1998, Defendant Lawrence Maglin,
president of the Defendant AED, came to the home of Plaintiffs Tom
and Tammy Klaus SOliciting their business.
B. Defendant Lawrence Maglin repeatedly stated to the
plaintiffs Tom and Tammy Klaus that his company, the Defendant AED,
was competent, experienced and honest. Defendant Lawrence Maglin
convinced the Plaintiffs Tom and Tammy Klaus their residence was in
great need of a new siding and his company, the Defendant AED, was
the company to provide them with an expert job.
9. On October 7, 1997, Plaintiffs, Tom and Tammy Klaus signed
a contract with Defendant AED for various home improvements to
their residence located at 319 2nd Street, New Cumberland,
Cumberland County, pennsylvania, 17070. (Please refer to Exhibit
#1 attached hereto arid made a part hereof.)
10. The contract which the Defendants AED and Lawrence Maglin
provided to the Plaintiffs Tom and Tammy Klaus contains a clause
directing any controversy and/or claim arising out of this contract
to be settled in accordance with the mediation-arbitration program
through the Better Business Bureau. The Better Business Bureau
mediation-arbitration program does not include controversies and/or
claims which concern the quality of the services and/or product
where no deception is alleged.
11. In the instant matter Plaintiffs Tom and Tammy Klaus are
alleging negligence by the Defendant AED and Lawrence Maglin, not
deception,
12. Plaintiffs Tom and Tammy Klaus, specifically requested
the contract include a clause stating the employees of Defendant
AED would keep the area around the Klaus residence cleared of any
trash or debris, due to the fear the Plaintiffs Torn and Tammy Klaus
had for themselves and their dogs falling and/or stepping on
debris _
13. The contract identified as Exhibit #1 specifically stated
the following would be done to the residence of Plaintiffs Tom and
Tammy Klaus:
A. Tear off the aluminum siding on the plaintiffs
Torn and Tammy Klaus's residence prior to the commencement
of their installation of Defendant's siding;
B. Install one-quarter inch (1/4) heavy duty
insulation system to the Plaintiffs Tom and Tanuny Klaus's
residence;
C. Check and Repair any rotted wood;
D. Install Alcoa Premium Dutch Lap vinyl siding to
Plaintiffs Tom and Tammy Klaus's residence in the color,
"Everest";
E. Install three energy saver custom double-hung
tilt windows to the Plaintiffs Tom and Tammy Klaus IS
residence in the color, "White";
F.
Plaintiffs
"Blue";
Install three pairs of shutters to the
Tom and Tammy Klaus's residence in the color,
G. Install ceiling soffit to front porch;
H. Cover beam on front porch;
I. All work includes labor, materials, life-time
warranty, clean-up, permits and taxes; and
J. Remove fan on first floor right rear of home.
14. When discussing the contract for services to be provided
by the Defendant AED to the Plaintiffs Tom and Tammy Klaus,
Defendant Lawrence Maglin, repeatedly assured the Plaintiffs Tom
and Tammy Klaus the improvements which Defendant AED was making to
their residence would be of the highest quality.
15. Employees of Defendant AED arrived on Monday, October 13,
1997, and began performing the contract items as identified in
paragraph 11.
16. During the time period the employees of AED were working
on the Klaus residence, the area immediately surrounding the
Plaintiffs' home was continUOUSly littered with various items and
parts of items which had either come-off of the plaintiff's home,
were being put onto the Plaintiffs' home or was simply garbage
which the employees of AED had left behind.
17. To prevent injury to the Plaintiffs Tom and Tammy Klaus
and their guide dogs, their neighbors frequently picked-Up debris
such as nails and pieces of siding which were left lying on the
steps to the front porch, the planter on the front porch and the
front porch itself, and even the entire sidewalk in front of the
Plaintiffs Tom and Tammy Klaus's residence. This area is important
to the Plaintiffs Tom and Tammy Klaus since this is the entry route
utilized with their guide dogs when entering and/or leaving their
residence and also where they often sit with their guide dogs to
enjoy the outdoors.
18. Not only did the area which the employees of the
Defendant AED littered affect the ability of the plaintiffs Tom and
Tammy Klaus and their guide dogs to enter and exit their home, the
litter and garbage of the AED employees extended onto the sidewalk,
porch and porch steps of their neighbor Linda Hauser who is also
legally blind with a guide dog making her ability to be outside of
her home dangerous.
19. Plaintiff Tom Klaus telephoned Defendant Lawrence Maglin
leaving a message regarding the trash and garbage left around their
residence. Plaintiff Tom Klaus stayed home from work the following
day to discuss the trash and garbage problem with the Defendant
AED's foreman.
20. Both the Defendant AED I S foreman and the Defendant
Lawrence Maglin assured Plaintiff Tom Klaus the littering with
trash and garbage would end; but it did not.
21. A day or two later, plaintiffs Tom and Tammy Klaus
returned home from work to find no one from Defendant AED had been
working at their residence that day. Plaintiff Tom Klaus
telephoned Defendant Lawrence Maglin leaving a message. Plaintiff
Torn Klaus stayed home from work the following two (2) days so he
would be there to supervise exactly what the employees of AED were
doing at his residence.
22. One morning when Plaintiff Tom Klaus was not at home, and
while the Defendant AED employees were working on the Klaus
residence the AED employees tripped a breaker causing the
electrici ty to parts of the Plaintiffs Klaus's residence to be
terminated. Defendant AED employees took no actions to restore
electricity to the Plaintiffs Klaus's residence nor did they inform
the Plaintiff's Tom and Tammy Klaus the electricity to portions of
their,residence had been terminated.
23. Plaintiffs Tom and Tammy Klaus did not realize the
electricity to portions of their residence had been terminated
until late that evening when Plaintiff Tom Klaus opened the freezer
door, felt warm air hit his face, heard water running and felt
packages of soft food. Still unaware of what had happened
Plaintiff Tammy Klaus cooked one of the packages of soft food, but
the food smelled strange so they were afraid to eat it.
24. Plaintiffs Tom and Tammy Klaus use Dutterer's Premium
Home Food Service to have items of food packaged, labeled and
stored in the freezer for them.
25. Plaintiff Tom Klaus after careful searching and ruling
out all possible causes for the freezer's malfunction, determined
a breaker had been thrown. Plaintiff Tom Klaus telephoned
Defendant Lawrence Maglin leaving a message regarding the incident.
26. Plaintiff Tom Klaus stayed home from work the following
day to question the Defendant AED foreman the next morning~ The
AED foreman acknowledged they knew their power tools had caused a
breaker to be thrown to the Klaus residence the previous day and
had done nothing about it.
27. Plaintiffs Tom and Tammy Klaus contacted Dutterer's
Premium Home Food Service. Dutterer's Premium Home Food Service
determined several of the food items, totaling One Hundred Twenty
Dollars and Sixty-Two Cents ($120.62), in their freezer had thawed
during the termination of electricity to the Klaus residence and
should be replaced. (Please refer to Exhibit #2 attached hereto
and made a part hereof listing the specific food items which had to
be replaced.)
28. The employees of Defendant AED concluded their
installation of the siding to the Klaus residence the week of
October 20-25, 1997.
29, On the day the Defendant AED concluded the installation
of the siding to the Klaus residence, Plaintiff Tom Klaus and
Defendant AED foreman walked around the outside of the Klaus
residence. The Defendant AED foreman repeatedly commented on the
high quality of workmanship which they had provided to Plaintiff
Tom Klaus.
30. During this walk, Plaintiff Tom Klaus when using his
hands to explore the siding felt the electric meter, which felt
loose, almost falling off the house. Further examination revealed
the electric meter was only screwed onto the siding not onto the
house itself and was pulling away from the house with the siding to
which it was attached. Plaintiff Tom Klaus pointed this problem
out to the Defendant AED's foreman.
31. The Defendant AED's foreman did not believe this was a
problem but appeared to fix the problem, at least as fat" as
Plaintiff Tom Klaus was able to determine.
32. The AED's foreman again told Plaintiff Tom Klaus of the
excellent quality of workmanship which the Defendant AED had
performed upon the Klaus residence. Although uncomfortable,
Plaintiff Tom Klaus had no real reason not to believe the Defendant
AED's foreman. Therefore, at the request of the Defendant AEC's
foreman, plaintiff Tom Klaus signed a document verifying the
excellent quality of workmanship on the Klaus residence.
33. Several days later, the Defendant Lawrence Maglin, also
personally accompanied the Plaintiff Tom Klaus on a walk around his
residence continuously commenting on the excellent quality of
workmanship which the Defendant AED's employees had performed upon
the Klaus residence.
34. Plaintiff Tom Klaus wanted to trust these individuals and
believe them. At this time he did not have any significant reason
to question the intentions or the integrity of the Defendants AED
and Lawrence Maglin.
35. The week of October 27-31, 1997, the Defendant AED's
employees completed the installation of the windows to the Klaus
residence.
36. After the completion of the installation of the windows
to the Klaus residence, the Defendant AED's foreman reviewed for
the Plaintiff Tom Klaus the excellent quality of workmanship which
the Defendant AED had performed upon the Klaus residence, Again,
the Defendant AED's foreman requested plaintiff Tom Klaus to sign
a document attesting to the excellent quality of workmanship which
the Defendant AED had provided to the Plaintiff Tom Klaus.
37. Plaintiff Tom Klaus did not in his mind have any reason
to question the statements of the Defendant AED's foreman or the
Defendant Lawrence Maglin. plaintiff Tom Klaus trusted these
individuals, so he did not seek any additional opinions or "eyes"
to actually review the work done by the Defendant AED.
38, Several days after the discussions with the Defendant
AED's foreman and the Defendant Lawrence Maglin, Plaintiff Tom
Klaus again walked around his residence with a friend, Will
Shatzer, who was visiting his residence and was a roofer by
occupation. plaintiff Tom Klaus shared with this friend the fact
he had recently had the siding and trim replaced on his residence.
39. Mr. Shatzer immediately noticed the extremely poor
quality of workmanship and shared what he observed with plaintiff
Tom Klaus.
Plaintiff Tom Klaus in turn shared Mr. Shatzer's
opinion and questions regarding the work AED had performed upon
their residence with Plaintiff Tammy Klaus. Both Tom and Tammy
Klaus were extremely upset and concerned since they had trusted the
Defendants AED and Lawrence Maglin implicitly, additionally they
had taken on the responsibility of a significant loan in the amount
of Thirteen Thousand Dollars and No Cents ($13,000.00) for the work
which the Defendant AED represented they would perfonn.
,
40. plaintiffs Tom and Tammy Klaus were extremely distraught
believing someone had deliberately taken advantage of them as a
result of their disability.
41. Plaintiff Tom Klaus immediately telephoned AED and was
told someone would get back to him, but received no response.
42. Following the completion of the services by AED, the
weather conditions in the area of the Klaus residence experienced
numerous periOdS of heavy rain, sleet and Slushy snow.
43. Plaintiffs Tom and Tammy Klaus have owned and lived in
their residence for eight and one-half (8 1/2) years. During that
period of time, the Plaintiffs Tom and Tammy Klaus never
experienced any episodes of water leaking into any part of their
residence.
44. On or about January 7, 1998, during one period of heavy
rain and sleet, Plaintiff Tom Klaus while sitting in his living
room heard "dripping". Plaintiff Tom Klaus located the "dripping"
when he opened his front door and water gushed from the flashing
between the front door and the storm door, running onto the living
room carpet.
45. Plaintiff Tom Klaus immediately telephoned Defendant
Lawrence Maglin and left a message for him, but received no
response.
46. Plaintiffs Tom and Tammy Klaus contacted their friend
will Shatzer to conduct an inspection of the Klaus residence,
additional areas of water leakage were identified; 1. e., the
ceiling of Plaintiffs Tom and Tammy Klaus's bedroom, the ceiling of
the living room, the front door, front door entrance, the panelling
immediately above the front door on the wall, and the carpet at the
base of the front door entering into the living room.
47. Following this further evaluation of damages and poor
workmanship to the Klaus residence. Plaintiff Tom Klaus again
telephoned Defendant Lawrence Maglin, indicating if he did not
receive a return telephone call, he would contact the Better
Business Bureau. No return telephone call was received.
48. The following is a listing of all major damages presently
identifiable at the residence located at 319 Second Street, New
Cumberland, PA, 17070:
A.
employees
sidewalk,
Trash and garbage which the Defendant AED
carelessly and negligently left on the ground,
porch and porch steps of the Klaus residence;
B. Several pieces of the "inSUlation" which
Defendant AED installed behind the siding of the Klaus
residence was left in the backyard. Later, contractors
who saw this insulation questioned whether it wa.s "one-
quarter inch (1/4") heavy duty inSUlation" as agreed to
in the original contract for services;
C. Food items which spoiled due to the Defendant
AED's employees' failure to restore power and/or notify
the Plaintiff's Tom and Tammy Klaus of the termination of
the electricity to their residence. (Please refer to
Exhibit #2.);
D. CommenCing at the front of the Klaus residence,
it is possible to identify, even from a distance, pieces
of trim and siding which are loose and do not have a good
fit and tight seal. In the majority of areas where two
pieces of siding and/or trim meet, the ends have not been
properly cut, joined and sealed. Many corners on the
trim on the Klaus residence are not mitered, do not.
completely meet, and are loose and improperly attached
Rllowing the elements, insects, and any other small
matter to easily get under the siding and trim to destroy
the wood and other structures.
E. There are pieces of trim around the front porch
and side of the front porch which have been attached with
only grouting and do not join together properly having
large gaps between each piece of trim. At some point in
the near future, the fluctuation of temperature, the
moisture and even insects, will cause this trim to simply
falloff leaving the entire area exposed;
F. The "Yankee gutter" across the front of the
porch does not function properly. It allows water to
leak-out over the front of the house, onto and in front
of the front porch and steps creating not only a
physically uncomfortable condition, but also an extremely
dangerous one;
G. Following the recent periOd of much colder
temperatures which was after these photographs were
taken, several areas of siding on the house have begun to
separate from the house. The seams where the siding
joins are such that one can slide their hand behind and
between the siding at those joints;
H. Much of the trim on the windows on the side of
the Klaus residence, was not cut and jointed properly.
I. The contract: states Alcoa Life Time gutters and
downspouts will be installed on the home. At the rear of
the Klaus residence on the second level, one entire
gutter was simply closed-off and not replaced.
Therefore, when there is precipitation of any form, large
amounts of water spill out and around the upper level
gutter splashing down on the metal porch roof and ground
below.. This not only creates a substantial amount of
noise, but additionally creates drainage problems on the
ground;
J. The contract provides for new Alcoa Lifetime
gutters and downspouts to be installed at the Klaus
residence. Old downspouting was used along the side of
the backyard fence;
K. An examination of the joints between sections of
the downspouting, reveals the joints have been done
incorrectly. The joints should be done so the water
flows through the joint. Therefore the previous section
of downspouting should flow into the next section. The
next section of downspouting should not go inside the
previous section, as it does in the Klauses' downspouts.
This allows water to flow between the downspoutinq
sections and out of the downspouting at each area of
jointure;
L. The trim and facets on the upper front of the
home are incorrectly done and do not come together at
areas of jointure and are very loose allowing the trim to'
be lifted away from the Klaus residence;
M. The facet covering the edge of the very narrow
porch roof between the third and second levels of the
home does not meet correctly. However, a closer
examination reveals there is nothing hOlding this edging
onto the residence. The edging can be easily pulled off
without any difficulty;
N. There are numerous evenly-spaced holes along
this narrow porch roof. These holes were made when
Defendants' workers hung their equipment from the porch
ledge.
O. The Defendant AED's employees walked on this
very narrow porch roof. There is a larger hole on the
front of the house above this narrow porch roof which it
is thought might have been compromised when the Defendant
AED's workers walked on the narrow porch roof which is
contributing to the water leakage into the interior of
the residence;
P. The windows were installed on the third floor of
the home were installed incorrectly. The windows should
have been installed to completely come into the Klaus
residence to the point of the former windows. Instead
there are large gaps between where the former windows set
into the Klaus residence and where the new windows set.
One of the windows screens was installed upside down.
Q. The outside of the windows on the third floor
reveals poor workmanship also to the trim around the
windows. Consistently with the other work done to the
Klaus residence: (1) the trim at areas joining other
pieces of trim does not come together properly; (2)
joints are not mitered properly; (3) joints are not
grouted here or indeed anywhere on the Klaus residence to
prevent moisture, insects or any other substances from
gaining access under the siding and trim; (4) nails are
hammered into the trim incorrectly denting the trim and
allowing further openings for water and the elements to
enter behind the trim; and (5) there are numerous places
where the entire piece of trim can be lifted away from
the window;
R. As a direct result of the poor workmanship in
paragraphs A through Q, as stated above, there is
virtually nothing to prevent water from entering the
Klaus residence. The ceiling of Plaintiffs Tom and Tammy
Klaus, the living room ceiling and the living room wall.
The water has caused the paneling on the living room wall
above the front door to swell and begin to peel off the
wall. The inside top of the front door where the water
leaks from between the flashings is swollen to the point
that sometimes the front door cannot be opened or closed.
Therefore, the front door, with the doorbell, cannot be
used and individual's must come to the back door which
does not have a doorbell. Additionally, Mr. and Mrs.
Klaus cannot exit their home via the front door, get
their mail, etc., without walking all around the house in
the rain, sleet and snow. At the bottom of the front
door water has been leaking onto the carpet so that the
carpet is beginning to rot.
S. The bedroom ceiling which is the room and wall
directly above the front door and the entire front
ceiling in the bedroom are leaking water and experiencing
water damage.
47. Plaintiffs Tom and Tammy Klaus made two (2) additional
telephone calls to the Defendants AED and Lawrence Maglin leaving
messages requesting return telephone calls. No return telephone
calls were received.
48. Plaintiffs Tom and Tammy Klaus contacted an attorney.
They again telephoned Defendants AED and Lawrence Maglin leaving
the message for the Defendants to contact their attorney. The
Plaintiffs received a return telephone call the following day.
49. plaintiffs Tom and Tammy Klaus have been psychologically
and emotionally damaged as a result of the actions of the
Defendants AED and Lawrence Maglin. Plaintiffs Tom and Tammy Klaus
are very proud, independent and trusting individuals. They have
and continue to demonstrate a determination to maintain a normal
lifestyle despite their disability. The actions of the Defendants
AED and Lawrence Maglin have caused them to be less trusting of
others and to question their ability to jUdge the character of
another individual.
50. The disruption to Plaintiffs Tom and Tammy Klaus's lives
during the time the Defendant AED's employees began their services
through the alleged completion of the job in addition to the
significant repairs which they know they will have to endure and
suffer in the future is devastating and extremely upsetting to
them. The stress on Plaintiffs Tom and Tammy Klaus has increased
in direct proportion to the changes in their environment and their
inability to be able to trust other individuals in their lives.
51. Plaintiffs Tom and Tammy Klaus rely upon others to verify
and assist with physical changes in their environment. Their
environment since Defendant AED began work upon the Klaus residence
has been continuously altered, even dangerous at times. It is
vital to Plaintiffs Tom and Tammy Klaus their environment remain
stable to enable them to function independently. Defendant AED
employees took away Plaintiffs Tom and Tammy Klaus's ability to
function independently while they were doing "improvements" to
their home.
Plaintiffs Tom and Tammy Klaus I s ability to be
independent will continue to be taken from them as the repairs of
the damages to the Klaus residence are completed.
52. Immediately fOllowing the failure of attempts to settle
this matter, Plaintiffs Tom and Tammy Klaus paid HT Company, Inc.
to make temporary repairs to the Klaus residence to prevent
additional damages as a result of water entering the Klaus
residence.
COUNT I. BREACH OF CONTRACT
53. Paragraphs 1 through 52 are incorporated as if fully set
forth herein.
54. On October 7, 1998, Plaintiffs Tom and Tammy Klaus and
Defendants AED and Lawrence Maglin entered into a valid contract.
55. Between October 13, 1997 through October 31, 1997,
Defendants AED and Lawrence Maglin breached several elements of
that contract as listed in Exhibit #1 and paragraph 11),
specifically:
A. Item 2 stating Defendant AED would use a one-
quarter inch (1/4") heavy-duty insulation system behind
the siding;
B. Item 6 stating the Defendant AED would use Alcoa
Life-Time gutters and downspouts;
C. Item 8 stating the Defendant AED would install
three (3) energy saving custom double hung windows;
D. Item 10 stating the Defendant AED would install
a ceiling soffit to the front porch; and
E. Item 12 stating the Defendant AED would be
responsible for "all... clean-up ...".
56. Implied in the contract between Defendants AED and
Lawrence Maglin and the Plaintiffs Tom and Tammy Klaus is the
condition the services contracted for will be done at a level
considered to be an acceptable level in the general community
providing similar services.
57. Plaintiffs Tom and Tammy Klaus obtained the opinion and
evaluation of two (2) additional companies who provide the same or
similar services as the Defendant AED.
These companies are HT
Company, Inc. and TLC Remodeling, Inc.
(Please see their
evaluations and estimates for repair at Exhibits #3 and #4,
respectively, attached hereto and made a part hereof.)
58. It is the opinion of the two expert companies, HT
Company, Inc. and TLC Remodeling, Inc., and an AED foreman, the
work which the Defendant AED performed upon the Klaus residence was
not at a level acceptable to others in the community performing the
same or similar services.
59. The Defendant AED through Defendant Lawrence Maglin
stated the work which was performed upon the Klaus residence was
not correctly performed and should be either completely redone
,
and/or repaired.
60. As a direct result of the breach of contract by the
Defendants AED and Lawrence Maglin, the plaintiffs Tom and Tammy
Klaus have suffered and endured the fOllowing damages:
A. Services were provided and performed by the
Defendants AED and Lawrence Mag1in to the Klaus residence
which were below the acceptable and community standards
of such services and work by other companies also
providing similar and/or same services and work (for a
specific Hsting of damages to the Klaus residence,
please see paragraph 47). As a result such restoration
and repairs as are stated in the estimates of HT Company,
Inc., and TLC Remodeling, Inc. which will cost the
Plaintiffs Tom and Tammy Klaus approximately Thirteen
Thousand Dollars and No Cents ($13,000.00) (Exhibits #3
and 4, respectively) must be completed and performed to
the Klaus residence;
B. Plaintiffs Tom and Tammy Klaus have had to
replace the spoiled food items at a cost of One Hundred
Dollars and Sixty-two Cents ($120.62). (Please refer to
Exhibit #2 for an itemized listing of the food items
which were spoiled.);
C. Plaintiffs Tom and Tammy Klaus will have to have
their front door entrance, the wood surrounding the front
entrance, the ceiling and wall at the front entrance and
the floor and carpet at the front entrance replaced
and/or repaired;
D. Plaintiffs Tom and Tammy Klaus's bedroom ceiling
where severe water leakage occurred, must be replaced
and/or repaired;
E. plaintiff Tom Klaus has had to be absent from
his place of employment six (6) days, resulting in a loss
of six days of employment to him;
F. plaintiffs Tom and Tammy Klaus will have to
employ a cleaning service to assist them when the
interior repairs are completed to their residence which
have resulted from the water leakage into their residence
due to the actions and/or poor workmanship of the
Defendant AED's employees.
WHEREFORE, Plaintiffs, THOMAS M. KLAUS and TAMMY L. KLAUS
respectfully requests this Honorable Court to enter judgement in
their favor and against the Defendants, AMERICAN EAGLE DEVELOPERS,
INC. and LAWRENCE MAGLIN for damages in an amount exceeding
$35,000.00, for damages past, present and future; lost income,
psychological stress and trauma; attorneys' fees and costs; and for
such further and additional relief as this Honorable Court deems
just and proper under the circumstances.
COUNT II. VIOLATION OF THE UNFAIR TRADE PRACTICES AND
CONSUMER PROTECTION LAW (UTPCPL) (II 1918-19152)
61. Paragraphs 1 through 60 are incorporated as if fully set
forth herein.
62. ~19:28. of UTPCPL expressly prohibits the following acts
or practices:
"Making repairs, improvements or replacements on
tangible, real or personal property, of a nature or quality
inferior to or below the standard of that agreed to in writing."
,
63. ~19:45. of the UTPCPL gives a right of private cause of
action under this act to:
"Any person who purchases or leases goods or
services primarily for personal, family or household
purposes and thereby suffers any ascertainable loss of
money or property, real or personal, as a result of the
use or employment by any person of a method, act or
practice declared unlawful by the Unfair Trade Practices
and Consumer Protection Law (UTPCPL) may bring a private
action under the UTPCPL to recover damages."
64. ~19:49 of the UTPCPL states a successful claimant under
the UTPCPL may recover actual damages or $100.00 whichever is
greater. Actual damages may include reasonable consequential
damages. Treble damages are appropriate where a person has acted
unconscionably and in direct violation of a contractual obligation
between the parties or where a person's conduct has been
particularly egregious.
65. Under the auspices of the UTPCPL act plaintiffs Tom and
,
Tammy Klaus are requesting this Honorable Court award them damages
as follows:
A. Treble damages for the actual amount of damage
which the Defendants AED and Lawrence Maglin caused to be
created in the Klaus residence;
B. Damages for the six (6) days which plaintiff Tom
Klaus had to remain home from his place of employment to
address the poor and inadequate actions and services of
the Defendants AED and Lawrence Maglin;
C. plaintiffs Tom and Tammy Klaus will have to
employ a cleaning service to assist them when the
interior repairs are completed to their residence which
have resulted from the water leakage into their residence
due to the actions and/or poor workmanship of the
Defendant AED's employees.
D. Damages for the severe psychological stress they
have and continue to endure due to their residence being
not only in a state of disrepair, but also due to the
concern with additional even hidden damages from the
severe water leakage and the financial hardship which the
entire incident has wrought upon them.
E. Damages for taking away the Plaintiffs Tom and
Tammy Klaus's ability to trust other unknown individuals
in addition to their lost self-confidence to be able to
be sufficient jUdges of character;
F. Damages for their attorneys' fees and any other
additional legal expenses.
66. It is the Plaintiffs Tom and Tammy Klaus's belief that
the poor quality of workmanship and the actions taken in direct
violation of the contractual relationship by the Defendants AED and
Lawrence Maglin were done knowingly and as a direct result of the
presence of the Plaintiffs Tom and Tammy Klaus's disability,
therefore, rising to the level of egregious behavior recognized by
the act so stated in paragraph 65, above.
WHEREFORE, plaintiffs, THOMAS M. KLAUS and TAMMY L. KLAUS
respectfully requests this Honorable Court to enter jUdgement in
their favor and against the Defendants, AMERICAN EAGLE DEVELOPERS,
INC. and LAWRENCE MAGLIN for damages in an amount exceeding
$35,000.00, for damages past, present and future; lost income,
psychological stress and trauma; attorneys' fees and costs; and for
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respond to request for admissions filed by the Defendant which, as a matter of law, admitted the
averments of American Eagle Developers, Inc., that Mr. Dietch performed the home
improvements on the Klaus home in or about October 13, 1997, he is not on employee of
American Eagle, he is an independent subcontractor and had sole control and management of the
construction, including trash management.
Plaintiffs alleged that the work on their home was defective and that, as 0 result of the
defective work, all the new siding, windows, shutters, soffits and downspouts have to be removed
and new items installed in replacement. Plaintiffs claim for breach of contract avers that certain of
the defective labor caused water damage to their home. Plaintiffs allege that they have been
psychologically and emotionally damaged by the actions of the Defendant. The plaintiffs allege
that they have been damaged by the disruption of their environment due to the construction job.
that they have suffered ancillary losses such as loss of freezer food due to an electrical outage and
water damage. Plaintiff also files a claim pursuant to the Unfair Trade Practices Act. Plaintiffs
pray for judgment in excess of thirty-five thousand dollars $35,000.00.
Defendant American Eagle Developers Inc. denies that the job was faulty and that
replacement of the entire job is required. American Eagle recognizes that minor corrections in the
nature of punch list items of Mr. Dietch's framing/trim and gutter work could have been
performed. Despite repeated request and an existing warranty, Defendant was denied by Plaintiffs
the opportunity to correct the work although it was able, willing and capable of doing so.
Plaintiffs' wrongfully declined repair services under the warranty. Defendant further denies that it
-2-
workmanship which AED would guarantee to perform upon the KLAUS residence, KLAUS trusted
and believed MAGLIN, such that they agreed to sign a contract that same evening to have AED put
siding and window treatments upon their home.
The contract AED and KLAUS signed specifically states AED will: remove the present siding
on the KLAUS residence; install one-quarter inch heavy duty insulation system to KLAUS residence;
check and repair any rotted wood; install three energy saver custom double-hung tilt windows; install
three pair of shutters; install ceiling soffit to the front porch of the KLAUS residence; cover the beam
on the front porch of the KLAUS residence; ALL WORK INCLUDES labor, material, life-time
warranty, clean-up, permits and taxes; and remove a fan on the first floor right of the KLAUS
residence.
KLAUS never signed any written contract nor did they ever orally agree to allow a sub-
contractor to do services to their residence. At all times, KLAUS believed AED was fully responsible
for all the services to their residence.
KLAUS are both legally blind. AED knew these individuals were blind when MAGLIN made
the contract with KLAUS. AED knew these individuals were blind when the actual work was done
to the KLAUS residence,
To compensate for their inability to shop for their grocery items, KLAUS is a client of
Dutter's Premium Home Food Service who supplies and labels food items for their consumption,
Upon learning of any of the numerous problems with the performance of AED, KLAUS made
numerous telephone calls and left numerous messages with AED. AED never responded in any
manner to the KLAUS requests for assistance.
2
The contract between Am) and KLAUS docs contain a clause stating the parties to the
contract will utlll7.e the Beller BURlnedR Bureau, Upon contacting the Beller Business Bureau of
Plllsburgh, KLAUS were lold lhelr action fell outside of thll jurisdiction and limits of the Better
Business Bureau and could not be heard by them,
The Unllllr Trade IlractlceR and Consumer Pwtection Law (UTPCPL), (section 19:8-19:52)
cKprcssly prohibits: "Making repairs, Improvments or replacements on tangible, real or personal
property, ora nature or lluallly inferior to or below the standard of that agreed to in writing."
UTPCPL In section 19:45 provides a private cause of action for: "Any person who purchases
or leaKs goods or services primarily for personal, family or household purposes and thereby suffers
any asccrtainable loss of money or property, real or personal, as a result of the use of employment
by any person of a method, act or practice declared unlawful by the UTPCPL, may bring a private
action under the UTPCPL to recover damages."
Section 19:49 ofUTPCPL further states a successful claimant may recover actual damages
or 5100,00 whichever is greater. Actual damages may include reasonable consequential damages.
Triple damages are appropriate where a person has acted unconscionable and in direct violation of
a contractual obligation between the parties or where a person's conduct has been plll1icularly
egregious.
II. STATEMENT OF FACTS AS TO DAMAGES
The workmanship AED used when doing the contracted for services to the KLAUS residence
does not meet the prevailing standard in the community, The workmanship was extremely poor,
resulting in numerous leaks into the KLAUS residence, Specifically, leaks at the second floor master
3
bedroom ceiling, the second floor back bedroom, the entrance door to the residence, and possible
additional leaks which have not been able to be determined by KLAUS, The workmanship was so
poor pieces of siding and window flashing and trim are unattached or falling off of the KLAUS
residence, additionally, there are numerous places on the KLAUS residence where the underlying
wood is exposed,
KLAUS had specifically requested that no trash be left around their home while the work was
being done, The written contract includes a commitment by AED to provide clean-up. This request
was made to protect KLAUS, their guide dogs and their neighbors from suffering any injuries as a
result of the trash. AED daily left large amounts of trash of all types and sizes, which mends and
neighbors of KLAUS daily came and cleaned up to protect KLAUS and their guide dogs,
AED blew a fuse while working at the KLAUS residence resulting in a lack of electricity to
the KLAUS residence. AED took no measures to notity KLAUS of this problem. KLAUS did not
learn of this problem until they went to take meat from their freezer and realized it was partly thawed.
KLAUS had to contact their food supplier, Dutter's Premium Home Food Service to have the spoiled
food replaced,
On two separate occasions MAGLIN came to KLAUS residence spoke with KLAUS and
stated to them the work was fine and the KLAUS residence looked like "a showcase",
KLAUS believed and trusted MAGLIN, so that while AED was providing the services to the
KLAUS, there was never thought to be any need for seeking the evaluation of any additional parties.
When KLAUS became aware of any problems with the services being provided by AED, AED
never responded to any telephone calls from KLAUS and in fact, KLAUS had to be absent from work
4
on several occasions to remain at home to confront AEO in person.
KLAUS did use their sense oftouch, as much as they were able, to determine the condition
of the work being done to their residence. specifically on one occasion, KLAUS felt the electric
meter, which appeared to be falling off the residence, upon questioning it was determined the electric
meter had never been fastened onto the residence.
After the completion of the services which AEO provided to KLAUS a mend, William
Shatzer, looked at the KLAUS residence as KLAUS proudly showed him their residence, To their
horror, Mr. Shatzer told them of the extremely poor quality of the workmanship to their residence.
Prior to the work which AEO performed upon the KLAUS residence, they had never had any
problems with their residence pertaining to water leakage, other than in the basement. Following the
completion of the work performed by AEO, KLAUS experienced significant leakage of water into
their home at the front door, second floor back bedroom and master bedroom,
Although KLAUS repeatedly attempted to contact AEO regarding these problems, AEO
never responded to KLAUS, until KLAUS left the telephone number oftheir attorney, indicating they
were seeking legal assistance with these problems.
William Murry, ofHT Company, Inc. has evaluated the KLAUS residence and determined
the entire work done to the KLAUS residence by AEO is so poor, it must be completely redone,
Further, it is the opinion of Mr. Murry that AEO's workmanship was so poor because KLAUS are
blind and could nllt see the quality of workmanship being done on their residence.
Oavid Teeter ofTLC Remodeling, after evaluating the KLAUS residence, has also determined
the quality of the workmanship to be so poor, all the work done to the KLAUS residence by AEO
5
muat be removed and redone,
KLAUS have paid HTC to do minor repairs to their residence and friends have done minor
repairs to prevent further damage to their residence, KLAUS will be paying for the services which
AED performed upon their residence for several years and cannot financially afford to have all of the
work done to their residence which is necessary.
AED offered to repair only a few ofthe major problems, however, KLAUS no longer trusts
AED and based upon the evaluation of HT Company and TLC, Inc., believe the offer of repairs
would not restore their residence to the condition which AED promised to do for them.
KLAUS have been as independent as possible, but had to rely upon and trust others for those
services which they cannot perform independently, KLAUS trust and faith in others has been severely
shaken as a result ofthe actions of AED.
KLAUS ability to function independently is directly related to the stability of their
environment. The actions of AED have interfered with the stability of the KLAUS environment and
as the additional repairs to the KLAUS residence are done, KLAUS will continue to have problems
functioning in their environment.
III. PRINCIPAL ISSUES OF FACT AS TO LIABILITY AND DAMAGES
A. Did AED and KLAUS agree, in writing, that AED would provide KLAUS with a
quality of workmanship which was comparable with the prevailing community standard?
Suggested Answer: Yes,
B. Did AED fulfill all of their obligations under the written contract?
Suggested Answer: No.
6
V. LIST OF TRIAL WITNESSES
The following is a list of the whnesses Plaintiffs intend 10 call al the trial of this maller,
Plaintiffs expressly reserve the right to call additional witnesses for the purpose of rebulling the
testimony and evidence presented by Defendant.
A, Tammy Klaus
B, Thomas Klaus
C, Lisa Salinger
D. lody McDade
E, Richard McDade
F, Londa Hauser
G. William Shatzer
H. William Murry, with HT Company, Expert
I. David Teeter, with TLC Company, Expert
VI. LIST OF TRIAL EXHIBITS
The following is a list of the exhibits Plaintiffs intend to use at the trial of this matter,
Plaintiffs expressly reserve the right to use additional exhibits for the purpose of rebutting the
testimony and evidence presented by Defendant.
A, Wrillen Contract between AED and KLAUS dated October 7, 1997,
B, Bill from Dutter's Premium Home Food Service, for spoiled food.
C, Evaluation and Opinion from H,T, Company, Inc.
D. Evaluation and Opinion from TLC Remodeling
8
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~ '73 , - S K"1. 01"'\ ' " ':."k:;'q{
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.~ '"r.y WV02Ult,.'{;,jI',
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A. C'" ,1'l1L,
~ 319We,I ElghlhAvenue.WeIIHom.,I..d,PA15120' (4121~61.4881, . ,"\'i,i'!;. '
7/'1 _ 77".{.76(;' "'f"
I,W.,lheund.r.lgn.d "76J.v1 .iAO-r;;II/I'#'/ /<:'L/1{/S" . .' ,: f.~J;tl\:
he"ln,nerref,rred 10 ..Ihe 'Owne" her. by employ -Am.~can E.gl. D.v.lop.",lnc, hlrelnen.r "f.rred to '"Ihe .contrecto~,to fuml~h I~bo.~ n:;~~r:~
m.terllll or bolh, n.c....ry 10 p.rform Ihe work hereluller III forlh on Ih. pr.ml'.. of Ihe Owner 10CII.il, It~f1'
::r 19 ~.I s~ T AVlnu. or Str.elln Ihe clly of .,/l/.q,V f'. 1/ Jtl;,!, ;- t7lt,vV ' : ';' cou~tiof:;l;! '
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SERVICING
. Plnnaylvlnll
" Ohio
. Walt Vlrglnll
. Maryllnd
. Vlrglnll
. Naw York
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..";--.' , ,- , ,.': "..:..,....~.\r:.~~:J~.
I' In 'conllderallon of laid work and/or malerllls, or bOlh, 10 be furnllhad by th" 'Conlrsclorf.;lhe ,0wner,lgr.el'to~pl
co~tr.ctcirTHE SUM OF ~t..IIl'-- zrlr,?v$'I"'/vO NwJ,' #U'wO;6'O c!-'l.(,ot/!)'#RB IS . I i/ 9 'iO., .~.t:$~;:
The ebove Conlrsclll sUbJ.cllo cr.dll approval snd assignment 10 lending Inslllullon OR PAYMENT IN FULL up~n com~l~il~l;'~r1.
~ . , <~
. work. , '~ . .. ',':~ ,:.~l..~~l:,l,'~';:'i
'. . ' .' D.;~n peyment 0 ,ill equ.1 monlhly Inllallment~ of approximately' /6l. "'lnc;U~lng:~herguAhe';iJI~~i~li;~~
m.nt ,hill bldue and pey.ble 30 days from data of s.ld nol. and complellon c.rllllcale, tha rem.lnlng Inst.llmenlllo b.paYlbleon Ihe':"" ..1
same day of each .ucceedlng month, Iho la.t In.lsllm.nt 10 ba for .n amount .ulllcl.nllo compl.ta payment of balance of Ihe note In full:;r'''h h
, Thll Conlr.ct Ih.1I not b. binding upon Ihe Conlraclor unlll acc.pled by Ihe Contraclor. Moreover, no addlllon, elterellon of thll:'" .~
.'. -'contract shall be blndl~gon tha Contractor unless the same be In writing and accepted by 'he Contractor In like manner.:\,;. .,;,~;.~'€~;',~~',.'iH\~
. .... ,'. , , :' " " ,.I.!"..: ,_', .:~\'.-',':,~(I:\ ~~_l''''t?''!':
': ' ' ",' " The Contr.clor ahell furnish the m.larlal. for Ih. work .nd complel.lhe work herein sp.cllled 10 be done In a sUb.l.ntlal..nd'~'S~
':;'.".\ ;: 'r ,,:orkmBn,I~~ee~a.;~:;'herebY represents that hs"lsthe Ownor In .fee of the premises whe~eon the ImproV8m~:'h~r~ln'.~e~'i;led -~1:~6r~~-~!rt~~ .
': :~; . m.de hevlng a deed for the .ame. The r.pr...nlallon Is made by Ihe Ownar, knowing Ihallh. Conlraclor r.lI.. upon II In accepllnglhl"'jll '.
; ," ' conlr.cl. 11 ther. ba mora Ihan one Own.r. Ihay .h.1I ba Jolnlly .nd .avar.lly liable haraon. " , ':'" '.',,: ,,:, ,:.,:,;r~' ,'~
This Contract shall bind the,helrs. executors. admlnlstrators,succBSBorl and assigns of the parties hereto. ,,-i: ':", " ,~. ,l~;!t(o;~f,~: .
, .' ': And Ill. f~rlh.r agra.d that If the Dwn.r cancatllhl. conlracl at any lima bafora comm.ncem.nl of the work, Ihin the IIquldltecl,'" ~
d.m.gel arl,lng 'rbm CO.tl and e.p.ns.1 n.c....rlly Incld.ntlo Iha bu.ln... of Iha Conlractor In connacllon wllh Ihll conlract amounl of '
, the sum ufTen (10%),percent of the above contract price, which said sum the Owner undertakes and agrees to pay forthwith" ...::~5:1i;).~if~!".
. , . '. . -! ". '. . " .-., . j.\'.F....I.:.:.~,
. The Owner h.reby c.rtlflas thaI h. has r.ad this agra'.manl and th.1IheraIs no und."tandlng betw.en Ihe partie., vorbil(jir ~~~j
olharwl.., th.n Ihat conlalnad In thl. agr.emanl, and agr.a. th.t tha laid Conlractor II nol r..ponllble nor bound by any repiallntilldn.;;f "
nol conlalned In Ihls agraamanl, mada by '!ny of Its aganls, unl..s Iha .ama ba raduc.d to wrlllng and Ilgnad by Ih. Contractor: "\:'" ;;.<'" ;,!f, ,;
. Any controversy or claim arising out of, or relallng to this contract. or any breach thereof. shall be settled In accordance'~iu':'th~\'i:~f~~L!:1
mediation-arbitration program as developed by the Beller Business Bureau Inc.. and the Commercial Arbitration rules of theAmerlcan ..' '.I'IJ.~.~.'~
Arbitration Assoclallon, and Judgement upon the award by the arbltrator(s) may be enlered In any court having Jurisdiction thereof. prOYldii.d':f;~;~i;P
,the aforesaid medlallon-arbllratlon program Is Instituted within lwelve (12) months of Iha dale of this contract. '.,.' .1;:~~~4
.' ,.,'.' " : . I_~" I
THE OWNER MAY CANCEL THIS T~ANSACTIONAT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DA~~~~~R:',i~\;1
THE DATE OF THIS TRANSACTION BY NOTIFYING THE CONTRACTOR IN WRITING. .' ," ',.. ,:,:.?U1 l
IN WITNESS WHEREOF, Inlendlng to be legally bound, the Owner has herunlo set the hand and seal of Ihe O~n~r Ihl; ;'7n),:!t~J
day Dr t"~-I;3).., y , 19.!1J. and Ihe Owner hereby acknowledges recelpl of a copy of this Contract. ''','' ;:':~ ;~<;n?!~
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1l..C REl1JDEL I i'(;
f'In>€ /-(J. : 6Hl2El67352
Feb. 03 1998 12:27P11 P2
1-888-585-9373
64 E. Uwchlan Avenue
Sulto41!
Exton. PA 19341
Remodeling, Inc.
PROjECT 9PECIFICAnONS
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DeSCRIPTION OF WORK AGRI!I!D UPON
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aCHECK' ASH - "-_..on "_,_~_
Paid with Order ac * '._"'_ on_, --_..""'-..y....."..,.(ooIltI>...
. --lon___.__,_",_, .,
Payable In lOdeys . .1Il.........""-by........_cIlI"'-.....Io_""""'_,
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Belancelo be FInan""'!j. . ."-..........._OI'n......__~""""""'"~
Oalo: 1- 'Z.. L 19 q 'i Make All Cheob Payable To: no Remodellng,lno.
By:..,,"'...a.I(,I.4....~r~..,..,....,.., awn.,
llC R_...."'"
Vou,Iflo buy". ""'I' _'1Ho b.._,,",. of ony!me prior..
mldnlght o/the "*'I '"'- cloy llfIe,1flo dAle o/!hlt _dlon,
awn.,
(AI 0Wne1l mUll 'fgn polllOl1tllly)
Thl. I. a bIndIng oontraal, notaub/eot 10 canoenotlon except 10 extent provklRd by lIrw.
ThIr tCn1nItllUIlttftdes III "......."0... tIIt.menta and 1CI...ments, 'lIIlm"d or Impllld, 1>IIwtIn!hl oartles.lhelr.aents or "_,_"
TLC REmtELlfD
PInE fO.
6HI2867352
Feb. 133 1998 12:2EI'I1 P3
1-888-585-9373
64 E, Uwchlan Avenue
Sull...18
Exton, PA 193<11
Remodeling, Inc.
PROJECT SPECIFICATIONS
"s-,~'It-/. ..d.'Uti" ~"'I&~ 9. "..... f4"
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DIl~P'T1ON OF WORK A~RI!I!D UPON .
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FRCI1 :
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TLC REMJDELnr;
PH:te HJ. : 61B2867352 ,
Feb. 03 1998 12:291'11 P5
1-888-585-9373
641!. Uwchlan ^v.nu9
suite 418
Exton, PA 19341
Remodeling, Inc.
PROJECT SPECIFICATIONS
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Dale: ..,l.: z.. i 19 ~ Mike An ChllClkA PayIIble To: TLC Rernodtl1ng, Inc.
By:...."..{..!r:r.I..t..I1,..::li:.{1f..b-".",....... Owner
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mldn1ghlol 1110 1l11rd ..- doy _1110_ oflhll_ClIon,
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TLC REI1JDELII',G
PHN: ~O.
61B2867352 ,(-
Feb. 03 1998 12:2EFM P4
1-888-585-9373
64 E, Uwchlan Avenue
Su~e 410
Exton. PA 19341
Remodeling, Inc.
PROJECT SPECIFICATIONS
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THOMAS M. KLAUS and TAMMY L.
KLAUS, husband and wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
OF CUMBBRLAND COUNTY,
PENNSYLVANIA
vs.
AMERICAN EAGLE DEVELOPERS, INC.,
a corporation,
Defendants
CIVIL ACTION - LAW
NO. 98-1494 Civil
JURY TRIAL DEMANDED
FIRST AMENDED COMPLAINT
AND NOW, comes the Plaintiffs, Thomas M. Klaus and Tammy L.
Klaus, by and through their attorneys, Gates & Associates, P.C.,
and respectfully represents as follows:
1. Plaintiffs Thomas M. Klaus (hereinafter referred to as
"Plaintiff Tom Klaus") and Tammy L. Klaus (hereinafter referred to
as "Plaintiff Tammy Klaus"), husband and wife. are adult
individuals residing at 319 2nd Street, New Cumberland, Cumberland
County, Pennsylvania, 17070.
2. Defendant, American Eagle Developers, Inc., (hereinafter
referred to as "AED"), is a corporation incorporated and licensed
to do business in Pennsylvania with its registered address as 4165
Beehner Road, Pittsburgh, Allegheny County, Pennsylvania, 15217.
3. Lawrence E. Mag1in is an adult individual and the
secretary/treasurer of the Defendant Corporation, American Eagle
Developers, Inc. His address is 4165 Beehner Road, Pittsburgh,
Allegheny County, pennsylvania, 15217.
,
...
4. Plaintiff Tom Klaus is legally blind. He is able to see,
with proper lighting, shadows with some distinction of large
shapes/ however, he has no color distinction.
5. Plaintiff Tammy Klaus is legally blind. She cannot see
anything at a distance nor is she able to see anything at night.
She is able to see some color and large bold print with proper
lighting.
6. Plaintiffs Tom and Tammy Klaus both have guide dogs, do
not own an automobile and rely to a significant degree upon their
friends and relatives for assistance with those activities which
they are unable to perform without the sense of sight.
7. On or about October 7, 1998, Lawrence Maglin,
secretary/treasurer of the Defendant AED, came to the home of
Plaintiffs Tom and Tammy Klaus SOliciting their business.
8. Lawrence Maglin repeatedly stated to the Plaintiffs Tom
and Tammy Klaus that his company, the Defendant AED, was competent,
experienced and honest. Lawrence Maglin convinced the Plaintiffs
Tom and Ta~~y Klaus their residence was in great need of a new
siding and his company, the Defendant AED, was the company to
provide them with an expert job.
9. On October 7, 1997, Plaintiffs, Tom and Tammy Klaus signed
a contract with Defendant AED for various home improvements to
their residence located at 319 2nd Street, New Cumberland,
Cumberland County, pennsylvania, 17070. (Please refer to Exhibit
#1 attached hereto and made a part hereof.)
10. The contract which the Defendants AED and Lawrence Maglin
provided to the Plaintiffs Tom and Tammy Klaus contains a clause
"
'"
directing any controversy and/or claim arising out of this contract
to be settled in accordance with the mediation-arbitration program
through the Better Business Bureau. The Better Business Bureau
mediation-arbitration program does not arbitrate issues concerning
punitive damages and/or attorneys' fees, both which the Plaintiffs,
Thomas and Tammy Klaus are alleging in this matter. As a direct
result, the Better Business Bureau of Western pennsylvania will not
process this matter to be considered under their arbitration
clause. (Please refer to Exhibit #2 attached hereto and made a
part hereof.)
11. In the instant matter, Plaintiffs Tom and Tammy Klaus are
alleging under the Unfair Trade Practices and Consumer protection
Law (UTPCPL), the Defendant AED, acted unconscionably and in direct
violation of a contractual obligation between the parties and
additionally the Defendant AED's conduct was particularly
egregious, thus entitling them to punitive damages.
12. plaintiffs Tom and Tammy Klaus have requested in their
prayer, reimbursement for attorney's fees and expenses.
13. Both of these allegations by the Plaintiffs Tom and Tammy
Klaus have resulted in an action which the Better Business Bureau
of Western pennsylvania will not process for arbitration.
14. Plaintiffs Tom and Tammy Klaus specifically requested the
contract include a clause stating the employees of Defendant AED
would keep the area around their residence cleared of any trash or
debris, due to the fear the plaintiffs Tom and Tammy Klaus had for
themselves and their dogs falling and/or stepping on debris.
.t
15. The contract identified as Exhibit 111 specifically stated
the following would be done to the residence of plaintiffs Tom and
Tammy Klaus:
A. Tear off the aluminum siding on the Plaintiffs
Tom and Tammy Klaus's residence prior to the commencement
of their installation of Defendant's siding;
B. Install one-quarter inch (1/4) heavy duty
insulation system to the Plaintiffs Tom and Tammy Klaus's
residence;
C. Check and repair any rotted wood;
D. Install Alcoa Premium Dutch Lap vinyl siding to
Plaintiffs Tom and Tammy Klaus's residence in the color,
"Everest";
E. Install three energy saver custom double-hung
tilt windows to the Plaintiffs Tom and Tammy Klaus's
residence in the color, "White";
F. Install three pairs of shutters to the
Plaintiffs Tom and Tammy Klaus's residence in the color,
"Blue";
G. Install ceiling soffit to front porch;
H. Cover beam on front porch;
I. All work includes labor, materials, life-time
warranty, clean-up, permits and taxes; and
J. Remove fan on first floor right rear of home.
16. When discussing the contract for services to be provided
by the Defendant AED to the plaintiffs Tom and Tammy Klaus,
Lawrence Maglin, repeatedly assured the Plaintiffs Tom and Tammy
Klaus the improvements which Defendant AED was making to their
residence would be of the highest quality.
17. Employees of Defendant AED arrived on Monday, October 13,
1997, and began performing the contract items as identified in
paragraph 15.
,
",
18. During the time period the employees of AED were working
on the Klauses' residence, the area immediately surrounding the
Plaintiffs' home was continuously littered with various items and
parts of items which had either come-off of the Plaintiff's home,
were being put onto the plaintiffs' home or was simply garbage
which the employees of AED had left behind.
19. To prevent injury to the Plaintiffs Tom and Tammy Klaus
and their guide dogs, their neighbors frequently picked-up debris
such as nails and pieces of siding which were left lying on the
steps to the front porch, the planter on the front porch and the
front porch itself, and even the entire sidewalk in front of the
Plaintiffs Tom and Tammy Klaus's residence. This area is important
to the Plaintiffs Tom and Tammy Klaus since this is the entry route
utilized with their guide dogs when entering and/or leaving their
residence and also where they often sit with their guide dogs to
enjoy the outdoors.
20. Not only did the area which the employees of the
Defendant AED littered affect the ability of the Plaintiffs Tom and
Tammy Klaus and their guide dogs to enter and exit their home, the
litter and garbage of the AED employees extended onto the sidewalk,
porch and porch steps of their neighbor Linda Hauser who is also
legally blind with a guide dog making her ability to be outside of
her home dangerous.
21. Plaintiff Tom Klaus telephoned Lawrence Maglin, per his
direction for the handling of any complaints, leaving a message
regarding the trash and garbage left around their residence.
Plaintiff Tom Klaus stayed home from work the fOllowing da:r' to
..
~
discuss the trash and garbage problem wi th the Defendant AED' s
foreman.
22. Both the Defendant AED' s foreman and Lawrence Maglin
assured Plaintiff Tom Klaus the littering with trash and garbage
would end; but it did not.
23. A day or two later, Plaintiffs Tom and Tammy Klaus
returned home from work to find no one from Defendant AED had been
working at their residence that day. Plaintiff Tom Klaus
telephoned Lawrence Maglin leaving a message. Plaintiff Tom Klaus
stayed home from work the following two (2) days so he would be
there to supervise exactly what the employees of AED were doing at
his residence.
24. One morning when Plaintiff Tom Klaus was not at home. and
while the Defendant AED employees were working on the Klauses I
residence the AED employees tripped a breaker causing the
electricity to parts of the Plaintiffs Klauses's residence to be
terminated. Defendant AED employees took no actions to restore
electrici ty to the Klauses' s residence nor did they inform the
Plaintiff's Tom and Tammy Klaus the electrici ty to portions of
their residence had been terminated.
25. Plaintiffs Tom and Tammy Klaus did not realize the
electricity to portions of their residence had been terminated
until late that evening when Plaintiff Tom Klaus opened the freezer
door, felt warm air hit his face, heard water running and felt
packages of soft food. Still unaware of what had happened
Plaintiff Tammy Klaus cooked one of the paCkages of soft food, but
the food smelled strange so they were afraid to eat it.
J
26. Plaintiffs Tom and Tammy Klaus use Dutterer's Premium
Home Food Service to have items of food packaged, labeled and
stored in the freezer for them.
27. Plaintiff Tom Klaus after careful searching and ruling
out all possible causes for the freezer's malfunction, determined
a breaker had been thrown. Plaintiff Tom Klaus telephoned Lawrence
Maglin leaving a message regarding the incident.
28. Plaintiff Tom Klaus stayed home from work the following
day to question the Defendant AED foreman the next morning. The
AED foreman acknowledged they knew their power tools had caused a
breaker to be thrown to the Klauses' residence the previous day and
had done nothing about it.
29. Plaintiffs Tom and Tammy Klaus contacted Dutterer' s
Premium Home Food Service. Dutterer'S Premium Home Food Service
determined several of the food items, totaling One Hundred Twenty
Dollars and Sixty-TWO Cents ($120.62), in their freezer had thawed
during the termination of electricity to the Klauses' residence and
should be replaced. (Please refer to Exhibit #3 attached hereto
and made a part hereof listing the specific food items which had to
be replaced.)
30. The employees of Defendant AED concluded their
installation of the siding to the Klauses' residence the week of
October 20-25, 1997.
31. On the day the Defendant AED concluded the installation
of the siding to the Klauses' residence, Plaintiff Tom Klaus and
Defendant AED foreman walked around the outside of the Klauses'
residence. The Defendant AED foreman repeatedly commented on the
"
high quality of workmanship which they had provided to plaintiff
Tom Klaus.
32. During this walk, Plaintiff Tom Klaus when using his
hands to explore the siding felt the electric meter, which felt
loose, almost falling off the house. Further examination revealed
the electric meter was only screwed onto the siding not onto the
house itself and was pUlling away from the house with the siding to
which it was attached. plaintiff Tom Klaus pointed this problem
out to the Defendant AED's foreman.
33. The Defendant AED's foreman did not believe this was a
problem but appeared to fix the problem, at least as far as
Plaintiff Tom Klaus was able to determine.
34. The AED's foreman again told plaintiff Tom Klaus of the
excellent quality of workmanship which the Defendant AED had
performed upon the Klauses' residence. Although uncomfortable,
Plaintiff Tom Klaus had no real reason not to believe the Defendant
AED's foreman. Therefore, at the request of the Defendant AED's
foreman, Plaintiff Tom Klaus signed a document verifying the
excellent quality of workmanship on the Klauses' residence.
35. Several days later, Lawrence Maglin, also personally
accompanied the Plaintiff Tom Klaus on a walk around his residence
continuously commenting on the excellent quality of workmanship
which the Defendant AED' s employees had performed upon the Klauses'
residence.
36. Plaintiff Tom Klaus wanted to trust these individuals and
believe them. At this time he did not have any significant reason
"
to question the intentions or the integrity of the Defendants AED
and Lawrence Maglin.
37. The week of October 27-31, 1997, the Defendant AED's
employees completed the installation of the windows to the Klauses'
residence.
38. After the completion of the installation of the windows
to the Klauses' residence, the Defendant AED's foreman reviewed for
the Plaintiff Tom Klaus the excellent quality of workmanship which
the Defendant AED had performed upon the Klauses' residence.
Again, the Defendant AED's foreman requested Plaintiff Tom Klaus to
sign a document attesting to the excellent quality of workmanship
which the Defendant AED had provided to the Plaintiff Tom Klaus.
39. Plaintiff Tom Klaus did not in his mind have any reason
to question the statements of the Defendant AED's foreman or
Lawrence Maglin. plaintiff Tom Klaus trusted these individuals, so
he did not seek any additional opinions or "eyes" to actually
review the work done by the Defendant AED.
40. Several days after the discussions with the Defendant
AED's foreman and Lawrence Maglin, Plaintiff Tom Klaus again walked
around his residence with a friend, will Shatzer, who was visiting
his residence and was a roofer by occupation. plaintiff Tom Klaus
shared with this friend the fact he had recently had the siding and
trim replaced on his residence.
41. Mr. Shatzer immediately noticed the extremely poor
quality of workmanship and shared what he observed with Plaintiff
Tom Klaus. Plaintiff Tom Klaus in turn shared Mr. Shatzer's
opinion and questions regarding the work AED had performed upon
'.
their residence with plaintiff Tammy Klaus. Both Tom and Tammy
Klaus were extremely upset and concerned since they had trusted the
Defendants AED and Lawrence Maglin implicitly, additionally they
had taken on the responsibility of a significant loan in the amount
of Thirteen Thousand Dollars and No Cents ($13,000.00) for the work
which the Defendant AED represented they would perfonn.
42. Plaintiffs Tom and Tammy Klaus were extremely distraught
believing someone had deliberately taken advantage of them as a
result of their disability.
43. Plaintiff Tom Klaus immediately telephoned AED and was
told someone would get back to him, but received no response.
44. Following the completion of the services by AED, the
weather conditions in the area of the Klauses' residence
experienced numerous periods of heavy rain, sleet and slushy snow.
45. Plaintiffs Tom and Tammy Klaus have owned and lived in
their residence for eight and one-half (8 1/2) years. During that
period of time, the plaintiffs Tom and Tammy Klaus never
experienced any episodes of water leaking into any part of their
residence.
46. On or about January 7, 1998, during one periOd of heavy
rain and sleet, Plaintiff Tom Klaus while sitting in his living
room heard "dripping". Plaintiff Tom Klaus located the "dripping"
when he opened his front door and water gushed from the flashing
between the front door and the storm door, running onto the living
room carpet.
47. Plaintiff Tom Klaus immediately telephoned Lawrence
Maglin and left a message for him, but received no response.
~
48. Plaintiffs Tom and Tammy Klaus contacted their friend
will Shatzer to conduct an inspection of the Klauses' residence,
additional areas of water leakage were identified; i.e., the
ceiling of Plaintiffs Tom and Tammy Klaus's bedroom, the ceiling of
the living room, the front door, front door entrance, the panelling
immediately above the front door on the wall, and the carpet at the
base of the front door entering into the living room.
49. FOllowing this further evaluation of damages and poor
workmanship to the Klauses' residence. Plaintiff Tom Klaus again
telephoned Lawrence Maglin, indicating if he did not receive a
return telephone call, he would contact the Better Business Bureau.
No return telephone call was received.
50. The following is a listing of all major damages presently
identifiable at the residence located at 319 Second Street, New
Cumberland, PA, 17070:
A. Trash and garbage which the
employees carelessly and negligently left
sidewalk, porch and porch steps of
residence;
Defendant AED
on the ground,
the Klauses'
B. Several pieces of the "insulation" which
Defendant AED installed behind the siding of the Klauses'
residence was left in the baCkyard. Later, contractors
who saw this insulation questioned whether it was "one-
quarter inch (1/4") heavy duty insulation" as agreed to
in the original contract for services;
C. Food items which spoiled due to the Defendant
AED's employees' failure to restore power and/or notify
the Plaintiff's Tom and Tammy Klaus of the termination of
the electricity to their residence. (Please refer to
Exhibit #2.);
D. Commencing at the front of the Klauses'
residence, it is possible to identify, even from a
distance, pieces of trim and siding which are loose and
do not have a good fit and tight seal. In the majority
of areas where two pieces of siding and/or trim meet, the
ends have not been properly cut, joined and sealed. Many
"
corners on the trim on the Klauses' residence are not
mitered, do not completely meet, and are loose and
improperly attached allowing the elements, insects, and
any other small matter to easily get under the siding and
trim to destroy the wood and other structures.
E. There are pieces of trim around the front porch
and side of the front porch which have been attached with
only grouting and do not join together properly having
large gaps between each piece of trim. At some point in
the near future, the fluctuation of temperature, the
moisture and even insects, will cause this trim to simply
falloff leaving the entire area exposed;
F. The "Yankee gutter" across the front of the
porch does not function properly. It allows water to
leak-out over the front of the house, onto and in front
of the front porch and steps creating not only a
physically uncomfortable condition, but also an extremely
dangerous one;
G. FOllowing the recent period of much colder
temperatures which was after these photographs were
taken, several areas of siding on the house have begun to
separate from the house. The seams where the siding
joins are such that one can slide their hand behind and
between the siding at those joints;
H. Much of the trim on the windows on the side of
the Klauses' residence, was not cut and jointed properly.
I. The contract states Alcoa Life Time gutters and
downspouts will be installed on the home. At the rear of
the Klauses' residence on the second level, one entire
gutter was simply closed-off and not replaced.
Therefore, when there is precipitation of any form, large
amounts of water spill out and around the upper level
gutter splashing down on the metal porch roof and ground
below. This not only creates a substantial amount of
noise, but additionally creates drainage problems on the
ground;
J. The contract provides for new Alcoa Lifetime
gutters and downspouts to be installed at the residence.
Old downspouting was used along the side of the backyard
fence;
K. An examination of the joints between sections of
the downspouting, reveals the joints have been done
incorrectly. The joints should be done so the water
flows through the joint. Therefore the previous section
of downspouting should flow into the next section. The
next section of downspouting should not go inside the
'.
previous section, as it does in the Klauses' downspouts.
This allows water to flow between the downspouting
sections and out of the downspouting at each area of
jointure;
L. The trim and facets on the upper front of the
home are incorrectly done and do not come together at
areas of jointure and are very loose allowing the trim to
be lifted away from the Klauses' residence;
M. The facet covering the edge of the very narrow
porch roof between the third and second levels of the
home does not meet correctly. However, a closer
examination reveals there is nothing hOlding this edging
onto the residence. The edging can be easily pulled off
without any difficulty;
N. There are numerous evenly-spaced holes along
this narrow porch roof. These holes were made when
Defendants' workers hung their equipment from the porch
ledge.
O. The Defendant AED's employees walked on this
very narrow porch roof. There is a larger hole on the
front of the house above this narrow porch roof which it
is thought might have been compromised when the Defendant
AED's workers walked on the narrow porch roof which is
contributing to the water leakage into the interior of
the residence;
P. The windows were installed on the third floor of
the home were installed incorrectly. The windows should
have been installed to completely come into the residence
to the point of the former windows. Instead there are
large gaps between where the former windows set into the
Klauses I residence and where the new windows set. One of
the windows screens was installed upside down.
Q. The outside of the windows on the third floor
reveals poor workmanship also to the trim around the
windows. Consistently with the other work done to the
Klauses' residence: (1) the trim at areas joining other
pieces of trim does not come together properly; (2)
joints are not mitered properly; (3) joints are not
grouted here or indeed anywhere on the Klauses I residence
to prevent moisture, insects or any other substances from
gaining access under the siding and trim; (4) nails are
hammered into the trim incorrectly denting the trim and
allowing further openings for water and the elements to
enter behind the trim; and (5) there are numerous places
where the entire piece of trim can be lifted away from
the window;
~
R. As a direct result of the poor workmanship in
paragraphs A through Q, as stated above, there is
virtually nothing to prevent water from entering the
Klauses' residence. The ceiling of Plaintiffs Tom and
Tammy Klaus, the living room ceiling and the living room
wall. The water. has caused the paneling on the living
room wall above the front door to swell and begin to peel
off the wall. The inside top of the front door where the
water leaks from between the flashings is swollen to the
point that sometimes the front door cannot be opened or
closed. Therefore, the front door, with the doorbell.
cannot be used and individual's must come to the back
door which does not have a doorbell. Additionally, Mr.
and Mrs. Klaus cannot exi t their home via the front door,
get their mail, etc., without walking all around the
house in the rain, sleet and snow. At the bottom of the
front door water has been leaking onto the carpet so that
the carpet is beginning to rot.
S. The bedroom ceiling which is the room and wall
directly above the front door and the entire front
ceiling in the bedroom are leaking water and experiencing
water damage.
51. Plaintiffs Tom and Tammy Klaus made two (2) additional
telephone calls to the Defendant AED and Lawrence Maglin leaving
messages requesting return telephone calls. No return telephone
calls were received.
52. Plaintiffs Tom and Tammy Klaus contacted an attorney.
They again telephoned Defendant AED and Lawrence Maglin leaving the
message for the Defendant to contact their attorney. The
Plaintiffs received a return telephone call the following day.
53. Plaintiffs Tom and Tammy Klaus have been psychologically
and emotionally damaged as a result of the actions of the Defendant
AED and Lawrence Maglin. Plaintiffs Tom and Tammy Klaus are very
proud, independent and trus ting indi viduals.
They have and
continue to demonstrate a determination to maintain a normal
lifestyle despite their disability, The actions of the Defendant
AED and Lawrence Maglin have caused them to be less trusting of
,
others and to question their ability to jUdge the character of
another individual.
54. The disruption to plaintiffs Tom and Tammy Klaus's lives
during the time the Defendant AED's employees began their services
through the alleged completion of the job in addition to the
significant repairs which they know they will have to endure and
suffer in the future is devastating and extremely upsetting to
them. The stress on Plaintiffs Tom and Tammy Klaus has increased
in direct proportion to the changes in their environment and their
inability to be able to trust other individuals in their lives.
55. Plaintiffs Tom and Tammy Klaus rely upon others to verify
and assist with physical changes in their environment. Their
environment since Defendant AED began work upon the Klaus residence
has been continuously altered, even dangerous at times. It is
vital to Plaintiffs Tom and Tammy Klaus their environment remain
stable to enable them to function independently. Defendant AED
employees took away Plaintiffs Tom and Tammy Klaus's ability to
function independently while they were doing "improvements" to
their home. Plaintiffs Tom and Tammy Klaus I s ability to be
independent will continue to be taken from them as the repairs of
the damages to the Klaus residence are completed.
56. Immediately following the failure of attempts to settle
this matter, Plaintiffs Tom and Tammy Klaus paid HT company, Inc.
to make temporary repairs to the Klaus residence to prevent
additional damages as a result of water entering the Klaus
residence.
COUNT I. BREACH OF CONTRACT
.,
57. Paragraphs 1 through 56 are incorporated as if fully set
forth herein.
57. On October 7, 1998, Plaintiffs Tom and Tammy Klaus and
Defendant AED entered into a valid contract.
58. Between October 13, 1997 through October 31, 1997,
Defendant AED breached several elements of that contract as listed
in Exhibit #1 and paragraph 11), specifically:
A. Item 2 stating Defendant AED would use a one-
quarter inch (1/4") heavy-duty insulation system behind
the siding;
B. Item 6 stating the Defendant AED would use Alcoa
Life-Time gutters and downspouts;
C. Item 8 stating the Defendant AED would install
three (3) energy saving custom double hung windOWS;
D. Item 10 stating the Defendant AED would install
a ceiling soffit to the front porch; and
E. Item 12 stating the Defendant AED would be
responsible for "all... clean-up ...".
59. Implied in the contract between Defendant AED and the
plaintiffs Tom and Tammy Klaus is the condition the services
contracted for will be done at a level considered to be an
acceptable level in the general community providing similar
services.
60. Plaintiffs Tom and Tammy Klaus obtained the opinion and
evaluation of two (2) additional companies who provide the same or
similar services as the Defendant AED.
These companies are HT
Company, Inc. and TLC Remodeling, Inc.
(Please see their
evaluations and estimates for repair at Exhibits #4 and #5,
respectively, attached hereto and made a part hereof.)
61. It is the opinion of the two expert companies, HT
Company, Inc. and TLC Remodeling, Inc., and an AED foreman, the
work which the Defendant AED performed upon the Klaus residence was
not at a level acceptable to others in the community performing the
same or similar services.
62. The Defendant AED through it's secretary/treasurer and
representative, Lawrence Maglin stated the work which was performed
upon the Klaus residence was not correctly performed and should be
either completely redone and/or repaired.
63. As a direct result of the breach of contract by the
Defendant AED, the plaintiffs Tom and Tammy Klaus have suffered and
endured the following damages:
A. services were provided and performed by the
Defendant AED to the Klaus residence which were below the
acceptable and community standards of such services ~nd
work by other companies also providing similar and/or
same services and work (for a specific listing of damages
to the Klaus residence, please see paragraph 50). As a
result such restoration and repairs as are stated in the
estimates of HT Company, Inc., and TLC Remodeling, Inc.
which will cost the Plaintiffs Tom and Tammy Klaus
approximately Thirteen Thousand Dollars and No Cents
($13,000.00) (Exhibits #4 and 5, respectively) must be
completed and performed to the Klaus residence;
B. Plaintiffs Tom and Tammy Klaus have had to
replace the spoiled food items at a cost of One Hundred
Dollars and Sixty-two Cents ($120.62). (Please refer to
Exhibit #3 for an itemized listing of the food items
which were spoiled.);
C. plaintiffs Tom and Tammy Klaus will have to have
their front door entrance, the wood surrounding the front
entrance, the ceiling and wall at the front entrance and
the floor and carpet at the front entrance replaced
and/or repaired;
D. plaintiffs Tom and Tammy Klaus's bedroom ceiling
where severe water leakage occurred, must be replaced
and/or repaired;
E. plaintiff Tom Klaus has had to be absent from
his place of employment six (6) days, resulting in a loss
of six days of employment to him;
F. Plaintiffs TOni and Tammy Klaus will have to
employ a cleaning service to assist them when the
interior repairs are completed to their residence which
have resulted from the water leakage into their residence
due to the actions and/or poor workmanship of the
Defendant AED's employees.
WHEREFORE, Plaintiffs, THOMAS M. KLAUS and TAMMY L. KLAUS
respectfully requests this Honorable Court to enter jUdgement in
their favor and against the Defendant, AMERICAN EAGLE DEVELOPERS,
INC. for damages in an amount exceeding $35,000.00, for damages
past, present and future; lost income, psychological stress and
trauma; attorneys' fees and costs; and for such further and
additional relief as this Honorable Court deems just and proper
under the circumstances.
COUNT II. VIOLATION OF THE UNFAIR TRADE PRACTICES AND
CONSUMER PROTECTION LAW (UTPCPL) (SS 19:8-19:52)
64. Paragraphs 1 through 63 are incorporated as if fully set
forth herein.
65. ~19:28. of UTPCPL expressly prohibits the following acts
or practices:
"Making repairs. improvements or replacements on
tangible, real or personal property, of a nature or quality
inferior to or below the standard of that agreed to in writing."
66. ~19:45. of the UTPCPL gives a right of private cause of
action under this act to:
"Any person who purchases or leases goods or
services primarily for personal, family or household
purposes and thereby suffers any ascertainable loss of
money or property, real or personal, as a result of the
use or employment by any person of a method, act or
practice declared unlawful by the Unfair Trade practices
and Consumer Protection Law (UTPCPL) may bring a private
action under the UTPCPL to recover damages."
67. 519:49 of the UTPCPL states a successful claimant under
the UTPCPL may recover actual damages or $100.00 whichever is
greater. Actual damages may include reasonable consequential
damages. Treble damages are appropriate where a person has acted
unconscionably and in direct violation of a contractual obligation
between the parties or where a person's conduct has been
particularly egregious.
68. Under the auspices of the UTPCPL act Plaintiffs Tom and
Tammy Klaus are requesting this Honorable Court award them damages
as follows:
A. Treble damages for the actual amount of damage
which the Defendants AED and Lawrence Maglin caused to be
created in the Klaus residence;
B. Damages for the six (6) days which Plaintiff Tom
Klaus had to remain home from his place of employment to
address the poor and inadequate actions and services of
the Defendant AED;
C. Plaintiffs Tom and Tammy Klaus will have to
employ a cleaning service to assist them when the
interior repairs are completed to their residence which
have resulted from the water leakage into their residence
due to the actions and/or poor workmanship of the
Defendant AED's employees.
D. Damages for the severe psychological stress they
have and continue to endure due to their residence being
not only in a state of disrepair, but also due to the
concern with additional even hidden damages from the
severe water leakage and the financial hardship which the
entire incident has wrought upon them.
E. Damages for taking away the Plaintiffs Tom and
Tammy Klaus's ability to trust other unknown individuals
in addition to their lost self-confidence to be able to
be sufficient jUdges of character;
F. Damages for their attorneys' fees and any other
additional legal expenses.
69. It is the Plaintiffs Tom and Tammy Klaus's belief that
the poor quality of workmanship and the actions taken in direct
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.:: '<'i-o .., . ,,;. ,/ '\1~
. . Penneylvanle at-V' . ~;b~ ...', .'.J'. AND;jl"~,\,I;,1
: ~~~~Vlrglnll 1"" fi~ . ~O~i-o ~ '...:" "'~I.~;OEN.~~~k?',
. Ulryllnd C~l'" ~h, . .. "<"~
. Vlrglnll ill "'T4> " 'wvoal4tt:':~I~'
. New York ~f.,~ I ~b . MHIC'~71~OI/,~~~
". ,. 31DWIII ElghlhAvonuo .wo.t Homlllold, PA 151207(~!1) 451.477:" ~ 76r . ::', '. ,;4';'
I,WI,lhlundo"lgnld ~/6~ AA-O -r;;h"'~Y kL,ffI/S- :":':">'~~i~~;
, hl..lnlnlr ..Iorred 10 IIlhl .OWnor" hl..by Imploy .Amlricon Elgll OIVllopo.., Inc. hl..lnlnor ..flrred 10 1.lhl .Conl..clor", 10 fuml.h Ilbor ~~?:
mllorllll or both. nlceulry 10 plrform tho work hlrllnlner III forlh on Ihe preml.el of Ihl OW~II loci lid' lit~ t
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j.l9 ~.I S~T AVlnuoorSlrletlnlhecllyof ./1/,Q1,/(!//J#; . .',;:co~ntyol:i~
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, ACCEPTED A D APPROVED:
'1 :'~ AMERICAN "LE DEVELOPERS, INC'~, . ; .
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, ,In 'conllderellon 01 leld work end/or meterlell, or bolh,' to be furnl.hed by Ih. .Contrlctor~.., Ihe ,Owner, Igrlll, 10 :P"
: . '. 'h"".J1IL . j~ 0..'0.0 ,c&~t':.f:~,:'
Contractor THE SUM OF ~~IIf4' 7/jt? v$'JIA;.o N',jIV"'~ 'AllI'I<O..s:-o l!-'l/YO"'92k!.~R8 II . . '/ 76 " . ',:.."!.J,.~),I,
, ' .j., , The ebove Conlrectll lubJeclto credit epproveland e..lgnment to lendlQg Initll~lIon OR PAYMENT IN FULL uil';n;com~;~llbk~j~ ,I
, k ; ~.' '. "'.Ie;.' r
~~r :. 'O';';'n pey",ent' b ,ill. equel monthly In.l~ilmenti .~; ,;pproxlmelely./6l. ""~clu~;n~';~h:~~::;:;:h:~:~~lt:~ji~:f~m\
ment ihill be due end peyeble 30 dlYI from dete of leld no Ie Ind complellon cerllflcale, Ihe remelnlng Inllellmentl to bl 'peyable on Ihe: iW..
. I8me dey of 88ch lucclldlng monlh, Ihe lulln.tallmanllo be for an amount eufllclent 10 complete peymenl of bl'"ncI 01 the notlln full. ,.l\t..
Thll Conlrlcllhell nol be binding upqn Ihe Contreclor unlll accepted by the Conlreclor. Moreover, no Iddlllon, elterallon 01 Ihll ':,\1)\
," conlrlct .hell be binding on Ihe Conlraclor unlulthe lame be In wrlllng and accepled by the Conlraclor In like mlnner;:'" , ~;, ':, ,,:.\~ i
'. . .' '. ': The'contrect~r 'ohell f~rnllh the mlterle'. lor Ihe YIork erid complel~ the work Iiereln Ipeclfled 10 ~~ 'doni I~ ...~~:~t~.~i;a,:~~~~l;;t
':;';.! . ,..workm"n~~"e ~~~:~'he~ebY reprlllnll thit hell'tho Owner In ill oltlia preml",whe~iori thelmprov'lm'~.,(h;rii';:";i~lill~ ~1~'lji~~i~,! .
. " ...; . midi hiving a dlld for Ihe lime, Thl repre..nlellon II mlde by Ihe Owner, knowing Ihlllhe Contrlctor rollll upon It In ecclpllng Ihlfl;' :,
," '.contracl. ,II there be moralhen one Owner. they Ihlll be jolnlly and leverllly lIeble herlon, " ,.:,. .' ,; , '.', ",;,: L :;<.1"
. . .. This Conlrlclshlll bind Ihe.helrs, execulors, admlnlstralors, SUCC8110rs Ind 1..lgnl or thl plrtl.. herelo.' ..-. ,:!, ..~,., .\::,:.~jf.tl\~l.. ~"
, " -', And It Is 'wther agreed thai If Ihe Owner cencels this conlract el eny lime before commencement 01 thl work; thon Ihlllqu dltli!,' ,
demegel ariSing frbm cosls and expan..s necesl8rlly Incident 10 Ihe business of Ihe Conlraclor In connecllon wllh thll conlract Imount of'
' the sum ofTen (10%) Percent olthe above conlract prlce,whlch laid lum the Owner undertakes and agrllllo ~er forthwllh, .i+'~' 'Jt.;\"
. . '. .: The Ow,;er hereby ce"lfIislhet he hei reed Ihls egreem~ni end thellherele no underlte~di~g b.~~~';'tI;I'piirtl~i.'~~~~1~'r'~th'
olherwl.., Ihan thai conlllned In this agrllmeni. and agroulhallhe I8ld Conlraclor II not ruponllble nor bound by Iny IIp;lIlntillil"~,t
nol conlalned In Ihls agree!,,"t, made by ~ny of lis agents. unleuthe I8me be raduced 10 wrlllng and .Igned by tho conlraclor:'%\o;;';:i,;;!~' ,
,. " .', Any conlroverlY or clll';' Irl.lng out oi, or rolellng to thl. conlrecl. or Iny brolch Ihoreol, .hlll b~'le;II~\d I~ lcici,;idini:~;,z.,i~~ij;~~~ ' n,
\ medlatlon-arbltrellon progrem es developed by the Ileuer Busln..s Bureeu Inc., end the CommerclolArbllrlllon rulll 01 theAmerlcon 'l,;;',~,,,
ArbllrellonAlsoclallon. end Judgement upon the awerd by Ihe arbllralorls) may be enlered In any court hiving jUrls.dlcllon thoreof, pr. OYldldl!': \
,the elore..ld medla\lon-arbllrallon program Is jnslltuled wllhln twelve (12) monlhs oflhe dele oflhls conlract: ,''',. , 'I":~, ,,;;':t1d.:~;~:~ .
THE OWNER MAY CANCEL THIS TFlANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BLtSIN E. SS.O~. Y AFtER. ";~ ~
THE DATE OFTHISTRANSACTION BY NOTIFYING THE CONTRACTOR IN WRITING. ,', . i: ,; ;', ,}, :1r,
, 1 . ....,... ....,:.1,.\..._.'1..'
IN WITNESS WHEREOF, Intending to be legally bound, Ihe Owner has herunla selthe hand and seal'af ih~. ow." ner'lh 'I.~. '7..i~;j;;~~,.,
'. . ~~( 11"\L1~, ,~
day of r>~--I;1br ,,19.91 and the Owner hereby'ackndwledBes receipt of acopv of ihi"Co~lr~~I.. .. ,,.:-;. ~t~t;~f~~~ .J
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FRa1 : TLC RS1J1lEL II>(;
PH:tE I'D, : 61B28G73S2
Feh, 03 1998 12:26PM P1
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64 Uwchlan Avenue
SuJte .f18
Exton, PA 19341
888-585-9373
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"Every Home Needs a Little TL.C"
n.c REI CDELII>l3
PHJE HJ, : 611l2OO7352
Feb, 03 1998 12:27FM P2
100888-585-9373
84 e. Uwchlan Avenue
Sulle4111
Exton. PA 19341
RemodeUng, Inc.
PROjECT SPECIFICAnONS
-e-,~~.~"7~e. :;({fW'1IN~1.~r ~".
0IaII__ __ON~""/J!!,;,:t,!!!.t::,f.rd..':!,~J..L{4!.'!..,r.""""""",,,.,,_,.._,,_,,,,,,,.,,,,.,,,,,.,.,....,.r
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DUCAlPTlOH OF WORK AQR.ID UPON ..
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<I -_.........--"--bJ....
Tot.l Project , )ICL.. tf~ '"2-. ."'"__"'~_......._.._...._
o CHECK ASH ..dtIm:lea""""oron ,._.............
Paldwlth Order . "'_01_ .._. __10.........,..,..".._ _...
P.yebleln tOdaY. .. =..";~"':==:_""A-:;;:.:.."":;':~.
Payable on Compl<<lon * . ::.:::.':=.":.=..:=~I=....II.. lit ....30.,. .lIor
Balance 10 be FInanced,..t . ...-""""'---A--___l.
Datu: 1- '2.. ..., 18 q 'i Meke All Checlw PlI}'abl. To: nc Remodeling, Ino.
By:.."..",.t:::k,/(,1.4".~~,..,.,.,..,... 0WnII
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You,lhebuyol,IllOI'_....~_ .. ,"ony_plloIlo
midnight"'....... _ cllyllllerlhedalo 01"'11_,
0WnII
(AJI 0Wne1'l mutt 1f9n p.h....'"'If)
1111. I.. bInding oantraot, nataubJIICt ta ...noallllllan elloept to ext.nt provided by brW.
TllIo contract IIIII-.le:llll ......II1tD...ltllemen!l.nd oommtnll. OlIlIrmtd "lmDIIId, bllWttn1llt _. their._ or IIOIIIOm.,I....
FRCI1
\tY.
TLC RB1Jt8..1t-D
PHH: I>IJ,
61028G7352
Fl!!b. 03 1998 12:2lJ'M P3
1-888-585-9373
84 E. Uwchfan Avenue
SuHe 418
Exton. PA 19341
Remodeling, Inc.
PROJECT SPECIFICATIONS
.s-,~"ItMU...("'?.4e. ~,,,t&~?I'T r".
0..... __ __CH llI!_lWA1.~/::!..:::I1!!?!!!.~..t(tJ;,L"",,,,.,,,,.,.,.,-,.,,.,__,,ImJJ(IQ'T
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D~PT1ON OF wonK A~nI!I!D UPON '
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"'*11II corn:t. WDfktoblpll'fanMd 8CIl:lllfdnv1:l aJ. r - ~ _ ~ ~ Jab"'''' remowd. CUstomorl.1 U.' an.,,* '0,.", I~ Of...."..... or,.......
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AND CONIX'nOHION 1HI! REVERSE stOI!. wHctI 1ft twICJ1 fftIIdlI . ..... alWI ....... P\nINflf ",.,. 0fIJIf............ ...... ... ..... .... ..., to
_ _.. _ _ ~ "'"...... 01"'" 00n0>0nJ. ","~Io......,,_ ....."... __d\Io _ 011...,..........._
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~aldwflhOrdK CHECK ClCAS . "_"_"'-'__'0""__"___
P-.'-In __1...____._"""_..-'
~,:..."' 10 days, . t-.."'-I>I'_-___.._......._
Payable on CompleUon * . at - -.. -, OIl _h ~m _" to.. d\Io 10".,._
CD'IlflIIIIM...................... <<lied.......
ear.""" lobe F1nancedt . 1IH___..______,
~~:.&,(,:J~......."'''"..~,: "1 F MakaAlI Cheolal peyab:: Tl.C Remodeling, Inc.
11.C R......_,b41..
V"" the buyer. moy canaollhlo InmJItflon III.." tkne pIiof III
midnlghl cltho ltItd _ day *'lot tho dolo"'''''' b.-&...
Owner
(M 0Wntr0 muol.ign p.......,.,
Thla la . bindIng contract, not aubJIICt to aancallatlan axcept to _t pnIVlded by law.
TIll. comract luptlIldn" _.1Iom. _1I.nd .Qlltm_.llCpItmd orrmpllod. _ltlt porllea.llIeil.Vl!lltsor ropmlnlllll'n.
FJ<a1 : TLC REMJDELIt-n
.]).
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PIOE H:),
61B28G7352
Feb. B3 1998 12:29PM PS
1-888-585-9373
64 e. UwcI1lan Avenue
Sulle 418
Exton, PA 19341
Remodeling. Inc.
PROJECT SPECIFICAnONS
-s-, 'W- ~ . .til67.te. ';f{/ftol,,/lM 'W- 1'.,..,. ,. n(1 .
/hI.- .11 -;jJ-iIA v~ . .. .
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Dale: ....L:- z.. i 19 -.:r-r- Mike An Checks Paylble To: TLC RemodelIng, Inc.
By:".."..t..l!:r.I..d1...::Ji:.t~""""...., Own.,
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61B2867352
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Fl!b. BJ 1999 12: 2EFM P4
1-888-585-9373
84 F.. Uwchlan Avenue
Bu",410
Exton. PA 19341
Remodeling, IDe.
PROJECT SPECIFICATIONS
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Owner
(All OwneIlIllUll.1gro --'lr)
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1l1IIeolIlfId'-''''"lf1oDl1Ylflt1l0nt.l1Itanmrtt Ind eal!tmonts. _sid !If ImplJotd. _on !hi gorltn.lI1til'.aont. or___
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as to the truth of the averment and said paragraph is denied.
16. Denied. After reasonable investigation, Defendant is without knowledge to form a belief
as to the truth of the averment and said paragraph is denied. By way of further answer it
is asserted that said contract speaks for itself as a written contract.
17. Denied. It is denied that the contract between the parties provides as Plaintiffs' allege in
their complaint at paragraph 17. Said contract is a writing which speaks for itself and the
obligations contained in the contract differ from that alleged by the Plaintiffs in their
Complaint.
18. Admitted. By way of further answer, Defendant American Eagle Developers, Inc., further
assert that they were ready, able and willing to make any repairs which were found to be
required if Plaintiffs' were dissatisfied with any component of the work. However,
Plaintiffs refused Defendant American Eagle Developers, Inc., the opportunity to make
such corrections.
19. Admitted in part, Denied in part. It is admitted that the work was commenced by
American Eagle Developers, Inc. on October 13, 1997. It is denied that said work was
commenced by employees of American Eagle Developers, Inc. Rather, said work was
commenced and performed by an independent subcontractor of American Eagle
Developers, Inc., which person was known as Barry Dietch, an individual transacting
-4-
.., ~;
34. Admitted in part, Denied in part. It is admitted that Plaintiff Tom Klaus left a message
regarding an incident. The remainder of the paragraph is denied since Defendant is without
knowledge sufficient to form a belief as to the truth of the averment and proof of same is
required.
35. Denied. The averment as to whether Tom Klaus stayed home from work is denied since
Defendant is without knowledge sufficient to form a belief as to the truth of the averment.
Defendant is further without information as to what Barry Dietch, an independent
subcontractor, may have related to Plaintiff and said paragraph is denied since Defendant
is without knowledge sufficient to form a belief as to the truth of the averment.
36. Denied. After reasonable investigation, Defendant is without knowledge sufficient to form
a basis to determine the truth of the averment and said paragraph is therefore denied.
Proof is demanded at trial.
37. Admitted in part, Denied in part. It is admitted that the installation of the siding was
concluded during the week of October 20-25, 1997. It is denied that said work was
completed by employees of American Eagle Developers, Inc. It is asserted that same was,
in fact, concluded by Barry Dietch, independent subcontractor of Defendant.
38. Denied. After reasonable investigation, Defendant is without knowledge sufficient to form
a basis to determine the truth of the averment and said paragraph is therefore denied.
-8-
, '
E, Admitted in part, Denied in part. It is admitted that certain trim was loose upon
inspection be Defendant. By way of further answer, it was averred that Defendant
had offered to make the necessary minor repairs but that Plaintiffs would not allow
such action. The remaining allegations are denied since, after reasonable
investigation, Defendant is without knowledge sufficient to form a basis to
determine the truth of the averment and said paragraph is therefore denied. Proof
is demanded at trial.
F. Admitted in part, Denied in part. It is admitted that the Yankee Gutter needed
minor adjustment. By way of further answer, it was averred that Defendant had
offered to make the necessary adjustment but were prevented from same by the
Plaintiffs. It is denied that same created a physically uncomfortable or unsafe
condition.
G. Denied. After reasonable investigation, Defendant is without knowledge sufficient
to form a basis to determine the truth of the averment and said paragraph is
therefore denied. Proof is demanded at trial.
H. Admitted with the clarification that any trim issues were minor and Defendant
agreed to make any necessary repair but were prevented from doing so by the
Plaintiffs.
1. Admitted in part, Denied in part. It is admitted that a minor problem existed with
the functioning of the gutter. When Defendant was made aware of same, it offered
to make the correction, which was refused by Plaintiffs. The remainder of the
allegation is denied since, after reasonable investigation, Defendant is without
knowledge sufficient to form a belief as to the truth of the averment. Proof is
demanded at trial.
J. Admitted in part, denied in Part. It is admitted that the contract indicated that
Alcoa lifetime gutters and down spouts were required under the contract. It is
denied that said was required to be installed along the side of the backyard fence.
It is specifically indicated that Plaintiff Tom Klaus authorized the use of the old
gutters.
K. Admitted in part, Denied in part. It is admitted that the construction at certain
joints were incorrect. It is averred that when Defendant was made aware of same,
it offered to make the correction which was refused by Plaintiffs. The remainder of
the paragraph relating to the consequence of the joint construction is denied since,
after reasonable investigations, Defendant is without information sufficient to form
a belief as to the truth of the averment. Proof is demanded at trial.
-14-
, "
64. Denied. After reasonable investigation, Defendant is without knowledge to form a belief
as to the truth of the averment and said paragraph is denied. It is further asserted that the
nature of the minor construction problems could never be reasonably determined to cause
psychological or emotional damage to Plaintiffs
65. Denied. After reasonable investigation, Defendant is without knowledge to form a belief
as to the truth of the averment and said paragraph is denied.
66. Denied. After reasonable investigation, Defendant is without knowledge sufficient to form
a basis to determine the truth of the averment and said paragraph is therefore denied.
Proof is demanded at trial.
67. Denied. After reasonable investigation, Defendant is without knowledge sufficient to form
a basis to determine the truth of the averment and said paragraph is therefore denied.
Proof is demanded at trial. It is denied that the Plaintiffs have endured any significant
disruption other than what can be normally anticipated in undertaken renovations of one's
home. It is further denied that any repairs which might be due on the building as a result of
the contract work are significant. It is asserted that only minor items need to be modified.
It is denied that such occurrences would or should cause Plaintiffs stress. It is further
asserted that had the Plaintiffs allowed Defendant to correct the minor construction
defects as it had requested upon the discovery of the dispute, no stress to either party,
-16-
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{."I, I~ ;J,.,:~t~.~,-~;{}~\~'! ".i~'I'...,,~.~, ':';~"{';' (l\o~Ii"'.-:''.;..,,; ,_l'l.to:-.,:J')..;,.."H. ,.rr:':il1; '<( ,,~,""l' ,"'(~1' 'j'1 !JfitH{l':'ll-" ,~
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.t<. '1 I" ,~ \.. . - ~.. ' . " ,,'.. '. , 'h" ......
t:\rlj~;I~i:1~:'):,:'j~~;~;i ::~~ ;;O'\J' ~:':. '-:" ! ',,1., " \ ' ' " , ,'. ~~ j ~ l.,/~\f~ ' \", , ' ,,~, :,'(:" ,~l /~" / ~';;:ilf.0,i~:~J~~f:jt~~~"i~'
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, ",---t.,f~ .... . ",- " . .'_. '. .,!'. h .
THOMAS M, KLAUS and TAMMY L,
KLAUS, husband and wife,
Plaintiffs
VS,
I IN THE COURT OF COMMON PLBAS
I 0.. CUMBERLAND COUNTY,
I PBNNSYLVANIA
I
I
I CIVIL ACTION - LAW
I NO, 98-1494 . Civil
JURY TRIAL DEMANDED
AMERICAN BAGLE DEVELOPERS, INC"
a corporation,
Defendant
ANSWER TO NEW MATTER PRESENTED BY
DEFENDANT AMERICAN EAGLE DEVELOPERS, INC,
AND NOW, comes the Plaintiffs, THOMAS M, KLAUS and TAMMY L.
KLAUS, husband and wife, by and through their attorneys, Gates &
Associates P.C" and files the following Answer to New Matter
Presented by Defendant American Eagle Developers, Inc,:
86,
Denied,
Plaintiffs, Thomas and Tammy Klaus, have
continuously taken such actions as were necessary to prevent any
additional damage to their residence resulting from the extremely
poor workmanship performed by the Defendant, American Eagle
Developers Inc.
Plaintiffs, have utilized the services of H.T.
Company, Inc., to perform these temporary repair jobs,
87.
Admitted in part and Denied in part.
It is admitted
Defendant, American Eagle Developers Inc. has made offers to
provide certain repairs to the home of the Plaintiffs, Tom and
Tammy Klaus. It is admitted the Plaintiffs have refused to give
their permission to the Defendant to do the repairs, as the
Defendant has proposed the repairs. By ways of further answer it
is asserted the repairs which the Defendant, American Eagle
.
1
. ,
I
I
"
, .
,
,
Developers proposed were improper and insufficient to adequately
repair the damage which they had created, according to the
information which was provided to the Plaintiffs through the two
contractors, H.T. Company, Inc., and TLC Remodeling Inc, who have
each separately evaluated the condition of their residence and the
workmanship of the Defendant, American Eagle Developers, Inc.
88. Denied. Plaintiffs, Tom and Tammy Klaus have identified
specific incidents in the Complaint, which created psychological
and emotional stress in their lives. Plaintiffs, have also plead
a cause of action under the Unfair Trade Practices and Consumer
Protection Law (UTPCPL) which enables them to establish a claim for
psychological and emotional damages.
89, Denied. plaintiff, Tom Klaus has identified in the
complaint, specific dates when he was not able to go to work as a
direct result of the actions or non-action and the lack of
responsiveness of the Defendant, American Eagle Developers, Inc,
Plaintiffs, have also plead a cause of action under the Unfair
Trade Practices and Consumer Protection Law (UTPCPL) which enables
them to establish a claim for damages resulting from loss of work.
90, Denied. After reasonable investigation, Plaintiff is
without knowledge sufficient to form a basis to determine the truth
of the averment and said paragraph is therefore denied, Strict
proof thereof is demanded at the time of trial,
91, Denied, After reasonable investigation, Plaintiff is
without knOWledge sufficient to form a basis to determine the truth
of the averment and said paragraph is therefore denied, Strict
proof thereof is demanded at the time of trial.
-0"
...-' -.....
92.
.
Denied,
After reasonable investigation, Plaintiff is
without knowledge sufficient to form a basis to determine the truth
of the averment and said paragraph is therefore denied, Strict
proof thereof is demanded at the time of trial.
93. Denied in part and Admitted in part, It is Admitted,
prior to the Plaintiffs, Tom and Tammy Klaus purchasing their
residence over eight (8) years ago, there is evidence of some water
damage to the tiles in the ceiling of their bedroom. It is Denied
the water damage in the tiles in their bedroom ceiling at present
is solely a result of the water leakage which occurred over eight
years ago, By way of further answer, it is asserted, following the
completion of the work done by the Defendant, American Eagle
Developers, Inc" Plaintiffs have witnesses who will testify and
photographs of additional water damage to the ceiling of their
bedroom.
Also, when an inspection tour of the Plaintiff's
residence was made with the Defendant, following some of the
initial damage which had occurred in the plaintiff I s bedroom
ceiling, the Defendant, themselves, identified the former location
of the source of the water leakage, The Defendant also identified
and admitted how their workmen caused the initial repair of the
water damage to be dislodged, thus allowing the new water damage to
occur,
94, Denied, FOllowing the completion of the \>mrk done by the
Defendant, American Eagle Developers, Inc" Plaintiffs have
witnesses who will testify and photographs of additional water
damage to the ceiling of their bedroom, Also, when an inspection
tour of the Plaintiff's residence was made with the Defendant
\.
'l'HOMAS M, ltLAUS and TAMMY L,
ltLAUS, husband and wife,
PlaintiffS
IN 'l'HE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
VB,
AMERICAN EAGLE DEVELOPERS, INC"
a corporation,
Defendant
CIVIL ACTION - LAW
NO, 98-1494 - Civil
JURY TRIAL DEMANDED
ANSWER TO NEW MATTER PRESENTED BY
DEFENDANT AMERICAN EAGLE DEVELOPERS, INC,
AND NOW, comes the Plaintiffs, THOMAS M, KLAUS and TAMMY L,
KLAUS, husband and wife, by and through their attorneys, Gates &
Associates P.C" and files the following Answer to New Matter
Presented by Defendant American Eagle Developers, Inc,:
86,
Denied.
Plaintiffs, Thomas and Tammy Klaus, have
continuously taken such actions as were necessary to prevent any
additional damage to their residence reSUlting from the extremely
poor workmanship performed by the Defendant, American Eagle
Developers Inc. Plaintiffs, have utilized the services of H,T,
Company, Inc., to perform these temporary repair jobs,
87, Admitted in part and Denied in part. It is admitted
Defendant, American Eagle Developers Inc, has made offers to
provide certain repairs to the home of the Plaintiffs, Tom and
Tammy Klaus. It is admitted the Plaintiffs have refused to give
their permission to the Defendant to do the repairs, as the
Defendant has proposed the repairs, By ways of further answer it
is asserted the repairs which the Defendant, American Eagle
.....'
\,
Developers proposed were improper and insufficient to adequat~ly
repair the damage which they had created, according to the
information which was provided to the plaintiffs through the two
contractors, H,T, Company, Inc" and TLC Remodeling Inc, who have
each separately evaluated the condition of their residence and the
workmanship of the Defendant, American Eagle Developers, Inc,
BB, Denied. Plaintiffs, Torn and Tammy Klaus have identified
specific incidents in the Complaint, which created psychological
and emotional stress in their lives, Plaintiffs, have also plead
a cause of action under the Unfair Trade Practices and Consumer
Protection Law (UTPCPL) which enables them to establish a claim for
psychological and emotional damages.
B9, Denied. plaintiff, Torn Klaus has identified in the
complaint, specific dates when he was not able to go to work as a
direct result of the actions or non-action and the lack of
responsiveness of the Defendant, American Eagle Developers, Inc,
Plaintiffs, have also plead a cause of action under the Unfair
Trade Practices and Consumer protection Law (UTPCPL) which enables
them to establish a claim for damages reSUlting from loss of work,
90, Denied, After reasonable investigation, plaintiff is
without knowledge sufficient to form a basis to determine the truth
of the averment and said paragraph is therefore denied, Strict
proof thereof is demanded at the time of trial,
91, Denied. After reasonable investigation, plaintiff is
without knowledge sufficient to form a basis to determine the truth
of the averment and said paragraph is therefore denied, Strict
proof thereof is demanded at the time of trial.
"
92. Denied, After reasonable investigation, plaintiff is
without knowledge sufficient to form a basis to determine the truth
of the averment and said paragraph is therefore denied, Strict
proof thereof is demanded at the time of trial,
93, Denied in part and Admitted in part, It is Admitted,
prior to the Plaintiffs, Tom and Tammy Klaus purchasing their
residence over eight (8) years ago, there is evidence of some water
damage to the tiles in the ceiling of their bedroom, It is Denied
the water damage in the tiles in their bedroom ceiling at present
is solely a result of the water leakage which occurred over eight
years ago, By way of further answer, it is asserted, following the
completion of the work done by the Defendant, American Eagle
Developers, Inc., plaintiffs have witnesses who will testify and
photographs of additional water damage to the ceiling of their
bedroom, Also, when an inspection tour of the plaintiff's
residence was made with the Defendant, following some of the
ini tial damage which had occurred in the Plaintiff I s bedroom
ceiling, the Defendant, themselves, identified the former location
of the source of the water leakage, The Defendant also identified
and admitted how their workmen caused ~he initial repair of the
water damage to be diSlodged, thus allowing the new water damage to
occur,
94, Denied. Following the completion of the work done by the
Defendant, American. Eagle Developers, Inc" plaintiffs have
witnesses who will testify and photographs of additional water
damage to the ceiling of their bedroom. Also, when an inspection
tour of the Plaintiff's residence was made with the Defendant
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