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Home My WebLink About01-06927 ,- TERENCE SMITH, an Adult Individual 3922 Emilridge Drive Mechanicsburg, P A 17050 and PATRICIA SMITH, an Adult Individual 3922 Emilridge Drive Mechanicsburg, PA 17050 Plaintiffs v. ACCENT LANDSCAPING, INC., A Pennsylvania Corporation 1636 Williams Grove Road Dillsburg, PA 17019 and DAVID E. FuREMAN, an Adult Individual 1636 Williams Grove Road Dillsburg, PA 17019 Defendants To the Prothonotary: . . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. tJl- 1/1;)7 CIVIL ACTION - LAW PRAECIPE Kindly issue a Writ of Summons in the above-captioned action. Dated: December 7, 2001 ";i;C.'i';[, ~, ~, ~c , ~,~!"', I' Respectfully submitted, JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 S A. DIAMOND a. J.D. No. 43902 Attorneys for Plaintiffs ,,,,,,,<,, ~ ~, -w;; ,~ -- ~,,_.._,~~~' ~,,"-_.~, ., .- .~.. '- -.". ,.... .~...,.._. -e. . ..- ,_......~ ..,." ~'.'m.llfft..-.rr. ,. . ~ ~ ~ CS C\ ~ . " ~ ~ ' \ ~ ~ er, Cj 0 0 (~~; ~ \ C ~1 l "- <, 0 - '\) \ ~~:1 i'J1 - \ \ ,'~ ~ Z:.J'; ~) 2::j-- (j; ;.; -.l ,:C:} ~ .. ~ \ ~~ _:...:.,I._~) ~ --0 '. ;, ~ ~ :0.;',(-) "-.l p.C ~? ~-=:s{r"1 ;2.: w S~ -'j ::a -<, -..j -< o _~~;!!",-". _ m~, ,~"',:"_r~1!nfmif'-l1W~~~'1'dfJl!}'-F,,,r"":;i""4in,-;;o,",-,%~~~~~~~ 'm"' SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2001-06927 P , COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SMITH TERENCE ET AL VS ACCENT LANDSCAPING INC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: ACCENT LANDSCAPING INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within WRIT OF SUMMONS On January 10th , 2002 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep York Co 62.08 .00 99.08 01/10/2002 JOHNSTON & DIAMOND ~~~ R. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this p~ day of (}MUA'7 ;Lb-ti:L> A.D. C)'14 , Q ~,d,., A~ prothonota'ry ,';\!!'~~, .1 '. < -.' , . ., ~ "'r'''''~' lII'!S'l~ SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2001-06927 P , COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SMITH TERENCE ET AL VS ACCENT LANDSCAPING INC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: FUREMAN DAVID E but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within WRIT OF SUMMONS On January lOth , 2002 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing 6.00 Out of County .00 Surcharge 10.00 .00 .00 16.00 01/10/2002 JOHNSTON & DIAMOND S~~ R. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this If ~ day of C}-.". ") ;)IJV ;L A.D. C+r a 'n1"~i. . ~ Prothonotary "J<1f~,..,....,." ,., ~""'c' "" .~,,~ ~, '",~ , ~~~. ". ~I' e ~ ~ "f~ , ~, 1 of 2 COUN1Y OF YORK OFFICE OF THE SHERIFF SERVICE CALL (717) 771-9601 28 EAST MARKET ST., YORK. PA 11401 ,'"',',',',',,.,',','.,. ",IN$teOCl1()NS ,,',' PI..EASE tVPEONtv tINE 1 tliRU, 12 .' """",.,",[)();~()'tPEtACHANYC()PIES l2COlJe.T~R . '1 Ul-b~LI C1V1.. - .~.. -.---..-.-- 4. TfPE OF WRIT OR COMPLAINT Ar.("'pnt- f,;:mnRc;:rping Inc_.... .._, _ _.__ Writ of' S1Jf!.:DllOns _ ---S.ERVE ----:.:: {. S, NAME OF lNDMDUAL. COMPANY, CORPORATION. ETC. TO SERVE OR DESCRIPTION OF PROPERTY Toar. l.EV1ED, ATrACHED, OR SOLD, David E. Fureman fj, ADDRESS (STREET' OR RFO WITH BOX NUMBER, APT NO., CITY.. BORO, TWP" STATE ANO ZIP CODE) _~______ 1636 Willi~. Grove Hoad _.Dillsburg_!-.!:A 17019_____________ !" INDICATE'SERVICE: 0 PERSONAL a PERSON 1~_9HARGE. _;~E~.~T1ZE a~!I:~Ftd .....;-? 1ST c~~ MArL 0 POSTED (1 OTHER NOW ~\:?("r;LO . , 20 ~ I. SHERIFF OF . , COUN1Y, PA, do hereby deputize the sheriff of ._. ,',_ . , . " COUN1Y to execute this Wriland,plake return t~Of according ~~iaw Thisdeputization being ~de_att~e req~=-~tand risk of th_~ plaintiff_ '-~~~-crr--'~~ _"'--__ $. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT INlLlnASS1ST IN EXPEDITING SERVICE: . .amTiJerlanr ., SHERIFF SERVICE PROCESS RECEIPT and AFFIDAVIT OF RETURN I PLAINTlFF/S! Terence Smith et al 3, DEFE.NOANTlSJ ....". QlJt...ot.. tblJNTY CuMBERLAND ADV ANctlJFEEP Alb .SYSHERIFF NOTE: ONt V'APPLlCABLE ON WRIT OF EXECUTION: N.D. WAIVER OF W~TCHMAN - Any deputy sheriff levying upon Of attaching any property under within writ may leave same without a watchman, In custody of whomever is found in possesSion, after notifying person of fevy'or attachment, without fiabiHty.on the part 01 such deputy or the shf".riff to any plaintiff herem for any los$, destruction. Qr lemova! of any property before sheriffs' sale thereof. ' 9. TYPE. NAME and AODREs..S of A'fToRNEY I ORIGINATOR and SIGNATURE 10, TELEPH-ONE NUMBER 11 DATE FilED ,JOHNSTON & DIAM.OND PC STE 100, 150 CORPORATE CIR. PO BOX 98 975-5500 12 ~~~-PNJ.k16" sf~9Qto tJmNO'AoORESS BELOW: (This area must,beoompleted if no~r..e fs to ~-inaifed). CUMBERLAND CO. SHERIFF '., .'. ".,....,::xSPIl.CEBELOWFORUSEOt=fflE"Sf!ERIFF....D,OIliOfWRItEBa..Owms OllIE 1"3." 1 a(."'knOwI~dg~greceiptotthewrft ........,...... ... ... . -- ".. ,., "".", " , , --......" ." ,."" "14."OA'fERECEIVED orcomplaln'as indicated above R. AHRENS 12-13-01 , . LZ4..bL 16, HOW SERVED: POSTED { POEt SHERIFF'S OFHCE ( ) OTHER ( -_.,~_... 15. Explratlon/H~arin:g Date UIXIHIl!Xt -6..Cl2.-- SEE REMARKS BElOW n. 42. day of 1-7-02 49 DATE .__........ 51. DATE RECEIVED 1. V\lHITE -1ss,\Jing AuthOrity 2 PINK" Attorney 3, CANARY - Sherftrs Office 4 Bl.UE - Sheriffs Office- ..~ .. Int f.l"l i~ CtieCk No 2 of 2 COUNTY OF YORK OFFICE OF THE SHERIFF SERVICE CALL (717) 771-9601 28 EAST MARKETST.. YORK, PA 17401 --.... ...".......,--... i.INSJIl9CTlONS .,.'.',. ,..".',...'..,'... ,"'.,'." ..,.,......PLEASETyPE. ONLYUNE 'lTHRU12 " "[)Oi\lOtJ)Et~C\i~NYcopiES b f:,g~2"M6'ie,n ----- ~PE OF WRIT OR COMPLAINT SHERIFF SERVICE PROCESS RECEIPT and AFFIDAVIT OF RETURN 1 PLAINTiFFlSi "---.-----. Terence &nith et al 3- DEFENDANT/S! Accent I"i'pdscapinJILJ:nc. et al Writ of SUrrmons SERVE { S. NAME OF INDIVIDUAL, COMPANY, CORPORA TlON, ETC ro SERVE: OR DESCRIPTION OF PROPERTY TO BE lEviEcCi\:nACHED, OR SOLD. .-- ~c;,,~~'&~7~~Ft&%~THI~; "NUMBER. APT No:ciTY_ BORO, TWP STATEANO lfP CODE) AT 1636 Willi~_ GrOY!;'..BRiOlCL Dillsburq, PA 17019 _______ '. INDICATE SERVICE: a PERSONAL I,J PERSON IN CHARG..E XXJobEPUTLZE r, ~lj, AM '_U.'_._'.'_'.S__.T CLASl;.'S MAll _.----..::.:OSTEO I:) OTHER NOWr"ecemberlr)' . 20 (Jl , I, SHERIFFOF~OUNTY, PA. do he~bY deputize the sheriff of _...Yill::k COUNTY to execute thi - agd1T1ake return .lJl.e!wf according to iaw. This deputization being made at the request and risk of the plaintiff. ___._' !",;<~':..;>..~~~",;;", .";"'~.,~~/' ;Z-.,..____ SHERIFF OF TV 8'-'~SPEC'iAL INSTRUCTION'S OR QTHER lNFORMATION THAT''ViirLl ASSlsrlN EXPEDITING SERVICE' ..__...--"t~illn e..rlanct '(l[jtoFtouNTY CUMBER.LAND ADVANCEDFELPAID BY SHERIFF N~TE: ONLY A.PPUCABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN -'Any deputy sheriff levying upon or attaching any property under withfn wnt may leave .same Without a watchman, m custody of whomevel IS found In Possession, arter notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any lo~s. destruction, or removal of any property before $llenffs sate thereof. g. TYPE NAME and ADDRESS of ATTORNEY iORIGINATOR and SIGNATURE JOHNSTON & DIAMOND 10. TEL,E,PHONENUMBERJ' "11 OATEFILED 975-5500 12-7-01 ..... ....... (This area must be completed if notice IS to, be mailed). -------- 12, SEND NOTICE OF SERVI(',.E COPY TO NAME AND ADDRESS BEL6w' CUMBERLAND CO. SHERIFF SPACEBEI..()WFORUSEOFTHESHl:RIFF-'-DONOTwRITE-i3EL.QWfHIS LINE:: """',." ',."'. 13 I ack110wledge receipt of the writ R AHRENS ._""-~. "'~"'-""-"-'"""",-1"1-4~' DATE RE,C, 8VE~,E, X.Plrabon/H~~~~9 Date ,"comp'a'ota,'od'catedabow " 12-13-01 11-6'-02 /' ...,...' . ...- 16. HOW SERVED PERSONAL (J;(" RESIDENCE (t(' POSTED ( } POE. ( ) SHERIFF'S OFFICE ( ) OTHER ( ) SEE REMARKS BELOW 29_ Pound ~~__~Ola'}"'-T:t Surchg 32 Tot. Co,1s ~ ~~Due~.RefuOd Check No ._..,_,.__..,..., 38. Mileage/Postage/Not fo.und 39 ..~~I Costs f 40 Costs Due or Refund.. 41. AFfIRMED and subs.crlbed to before me thiS _.___.,..., ._. __. $0 ANSWERS ... 0$2 dayof_ilANIIARV .... ,20.0243.,..... . y,44.D~~:~~~~2~ fi-~.:i.~~~;~:.,.".J-f' . .~.,..;'.;;..:. l -_..~-- , ' .~Ig.a~reol""'-..... .. v~ ,. -",," ~./..x.lrl"-" ,4:..2:;t!:;if' ~ " NOTAFHAL t;i:EAL :': -' '- ...,~ "''''''8 :.,.",,, . {: 2:..,":.t;'; ,0.:.: ,~,:~.--t..?fJ<">.~f-'vu"~ (,1 r},,' ';,'..1, ,~""'"EL,.,',SSA.J,.""!".HA,,FF,',E,,R, ;"Nv""ta'y, f'"I~Jbl,.,.'C,.., ',' oR', ,W,',t,", [,.,t'f",~M, ,M. H, O",SE,',()Oc"''-, .4"f (.".:: /'~""",,'",',"r":':':;'- _..- 1-7-02 /I'.~ (; CitlotY~~~.~rk ur.~~~! . ,.'. ': '. ..-::' t'?~ or 1:,. ~'(." ."!.. '..~- 49 DATE ,f,-ic' ;~~D~:~EC:~~:~~~~~~:F;;~i~~,~~:t~~~~~~:t.'"n i/__ J 51,[)ArERECEIVED OF UTHQRLZED ISSUING AUTHORITY AND TITLE .._~---_._~_..._.- Z:3, Ad"ance Co1>ts 45,D T~"""-:::"- .' '<7 "'-'7 ":> -~ -..p:.~ . OAT . f, WHITE - ISSUing AuthOrity ~,PINK. Attorney 3., CANARY - Sheriffs Office 4. BLUE: . Sheriff's Office ,: i.lf .j&.. '" .. ., ... . ;"" :.""'"'_ ....."'""~.~."..:,"';;;.;..1...\.....J.,;~'k:::;;~\!:it,;''"''''''::li::...\.\'.y,'~..~.s~.\{,.." .~'~....,,' .s....,'.......... , ~, Attornevs for Plaintiff: JAMES A. DIAMOND, ESQUIRE Pa. 1.0. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 TERENCE SMITH, an Adult Individual 3922 Emilridge Drive Mechanicsburg, P A 17050 and PATRICIA SMITH, an Adult Individual 3922 Emilridge Drive Mechanicsburg, P A 17050 Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 01-6927 Civil v. CIVIL ACTION - LAW ACCENT LANDSCAPING, INC., A Pennsylvania Corporation 1636 Williams Grove Road Dillsburg, PA 17019 and DAVID E. Fl1REMAN, an Adult Individual 1636 Williams Grove Road Dillsburg, PA 17019 Defendants 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 re- quested by the Plaintiff. You may lose money or property or other rights important to you. '/'~'---- ,'""e" ' ! ~ ':,'f' """ __''', ".,'1''', 1 ,,~ - Ij YOU SHOULD TAKE TIllS PAPER TO YOUR LAWYER AT ONCE. IF YOU ~O NOT HA VB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 ''h1J!.~ , "~ ,,' ,"," __." J-' 'If I , -~I-"1 ., '_C;"'" - 1m r" 0, _, ~-, Attornevs for Plaintiffs: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 TERENCE SMITH, an Adult Individual 3922 Emilridge Drive Mechanicsburg, P A 17050 and PATRICIA SMITH, an Adult Individual 3922 Emilridge Drive Mechanicsburg, P A 17050 Plaintiffs IN TIIE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 01-6927 Civil v. CIVIL ACTION - LAW ACCENTS LANDSCAPING, INc., A Pennsylvania Corporation 1636 Williams Grove Road Dillsburg, PA 17019 and DAVIDE. F'uREMAN, an Adult Individual 1636 Williams Grove Road Dillsburg, PA 17019 Defendants COMPLAINT Plaintiffs, TERRENCE SMITH and PATRICIA SMITH, husband and wife, through their attor- neys, James A. Diamond, Esquire and the law firm of Johnston & Diamond, P.C., file this Com- plaint against ACCENTS LANDSCAPING, INc., a Pennsylvania Corporation, and DAVID E. F'uRE- MAN, an adult individual and sole proprietor, at times trading under the registered fictitious name "Accents Landscaping," and in support thereof alleges as follows: ";';'~;:J:;.~,., """"'''''". r" '., '~r' i."" .',,". ~, ;;,. ' PARTIES 1. Plaintiffs, Terence Smith and Patricia Smith, are adult individuals and citizens of the Commonwealth of Pennsylvania with a residential address at 3922 Emilridge Drive, Mechan- icsburg, Cumberland County, Pennsylvania 17050. 2. Defendant David E. Fureman is an adult individual who at relevant times did business under the registered fictitious name "Accents Landscaping," with a business address at 1636 Williams Grove Road, Dillsburg, Pennsylvania 17109. 3. Defendant Accents Landscaping, Inc., is and at relevant times was a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with a primary place of business located at 1636 Williams Grove Road, Dillsburg, Pennsylvania 17109. 4. Plaintiffs are, and at all relevant times were, owners of a home, which was at all relevant times their primary residence, located at 3922 Emilridge Drive, Mechanicsburg, Cum- berland County, Pennsylvania 17050. REPRESENTA nONS OF DEFENDANTS AND CONTRACTUAL ARRANGEMENTS WITH PLAINTIFFS 5. At all relevant times including in February of 1999, David E. Fureman, on behalf of himself and on behalf of a business with which he was affiliated referred to by him as "Ac- cents Landscaping," held out to the public generally, and to Plaintiffs specifically, that he and such business had the expertise to engage in various aspects of professional design and construc- tion relating to landscaping, and functional structures relating to landscaping, including retaining walls. 2 ~'iID,:,,,,.'"' ",<,"',," ,.,r' " f-- ' , , " .--T' ," "'r, " " 6. Defendants specifically represented to the public in general, and to the Smiths di- rectly, including in written advertisements sent through the United States Mail that were received by the Smiths, that Accents Landscaping had a "Professional Design Staff." 7. Defendant David E. Fureman, on behalf of himself and/or Accents Landscaping, Inc., represented and held out to the public both orally and in written advertising materials that Defendants had an expertise specifically with respect to "Retaining Wall Construction." 8. A true and correct copy of a February 1, 1999 unsolicited mailing and its enclosed advertising brochure received by Plaintiffs in February of 1999 from Defendants is attached hereto as "Exhibit A," and incorporated herein by reference. 9. Subsequent to, and relying upon, the said mailing dated February I, 1999 and rep- resentations therein, Plaintiffs contacted Defendants to explore the possibility of having major professional landscape design and construction work performed, including, among other things, the substantial reshaping and recontouring of a steep hill in their back yard, using a large retain- ing wall; the construction of various exterior staircases and other structures; as well as develop- ing basic planting plans and performing general landscaping services. 10. Thereafter, Plaintiffs had a series of meetings and discussions with Defendant David E. Fureman, purporting to act on behalf of a business known as "Accents Landscaping," regarding the potential engagement by Plaintiffs of Defendants to plan and execute substantial exterior work at Plaintiffs' residence. 11. In connection with such discussions and negotiations, Defendant David E. Fure- man orally represented to Plaintiffs that David E. Fureman and Accents Landscaping had the competence and expertise to, among other things, design and build retaining walls, and that they 3 l)J:~~Tl C,"T-''''''''"~'''~' .., i'. i ,., '''~,i~.c'.~ , " " '^'c , "' were approved by a manufacturer of certain types of decorative blocks for retainil11g walls known as "E. P. Henry" to perform such work, and had a substantial amount of experience in designing and installing walls with that specific manufacturer's products. 12. In connection with the negotiations and discussions leading up to an agreement between Plaintiffs and Defendants, Defendant David E. Pureman orally represented and prom- ised that the retaining wall and exterior staircases were fully warranted by Defendants for a pe- riod of five (5) years, and that in the event of any defects or failures during that time, Accents Landscaping would make any necessary repairs to correct the problems or defects. 13. In oral discussions between Plaintiffs and Defendant David E. Pureman at that time specifically concerning the said oral warranty, Defendant David E. Pureman used an exam- ple to the effect that if the wall fell down, Accents Landscaping would come out and build a new one. 14. In these discussions about the scope of the oral warranty being provided, Defen- dant David E. Pureman never indicated to Plaintiffs that Plaintiffs could be charged by the De- fendants for any work or materials necessary to correct any failures or deficiencies in Defen- dants' work. 15. Defendant David E. Pureman further represented to Plaintiffs in connection with such negotiations and discussions leading up to their agreement that Defendants had the neces- sary experience, expertise, competency and qualifications to design and plan the reshaping and recontouring of the land and the construction of the intended structures, including the large func- tional retaining wall and substantial exterior staircases. 4 '-';:-:'= ',' ,c u _, " 'f ~. , , '"1 I' '-- , , ?Oi }' ,", '~~"'" '[ 16. Business cards, correspondence, advertisements and proposed quotation docu- ments provided by Defendant David E. Fureman on behalf of himself and the business he re- ferred to as Accents Landscaping to Plaintiffs at the time of such negotiations and discussions did not state that Accents Landscaping was a corporate entity, and Defendant David E. Fureman at no time prior to the parties' entering a contract indicated in any way that his business Accents Landscaping was incorporated. 17. In or about February of 1999, Plaintiffs entered into an agreement, which was par- tially oral and partially rnemorialized in writing, with Defendants David E. Fureman and Accents Landscaping. 18. At the time the contract was entered, Plaintiffs were not aware and had no reason to be aware that the business name "Accents Landscaping" was the name of a corporation in which Defendant David E. Fureman is or was the sole officer, as well as being a registered trade name used by Defendant David E. Fureman individually. 19. Under the terms of the partially oral and partially written agreement between the parties, David E. Fureman, on behalf of himself and Accents Landscaping, promised in exchange for $15,800.00, to professionally plan and to be responsible for actual work conceming recon- touring and reshaping of the steep back yard at Plaintiffs' residential property, in addition to pro- viding other design and construction and general landscaping services. 20. As part of the said agreement, Defendants agreed to professionally pIan, design, prepare drawings and specifications for, and be responsible for the actual construction work with respect to several functional structures on the property of Plaintiffs' residence, including (1) an approximately 125-foot-long by 5-foot-high retaining wall in the back yard that would be re- 5 , ',r,~.. ':"":' " ,,. ,,'. :"" .,,,[ ',[ , ", - J "'7.;;.>;, ,~,...,' "" ~'" quired to hold back the hillside as reshaped; (2) a large staircase integrated into the center of the said retaining wall; and (3) a second exterior staircase on a hill on the side of the home. 21. Defendants were also obligated under the said agreement of February, 1999, to perform a small amount of general planting and landscaping work. 22. As part of the generallandscaping planning and planting, Defendants also agreed to locate the rear boundary, using a Plot Plan that was provided by Plaintiffs which showed the location of two existing survey monuments delineating the said boundary, and to place plants along that perimeter. 23. Prior to Plaintiffs' entering the agreement with Defendants, Defendant David E. Fureman orally represented to Plaintiffs that Accents Landscaping was "fully insured." 24. In entering into the agreement with Defendants in February of 1999, Plaintiffs reasonably relied upon the material representations and oral promises of Defendants, including, among others, the said representations concerning the five-year general warranty on the struc- tures, concerning the Defendants' expertise, competency and experience, and concerning the ex- istence of full insurance. 25. In connection with the oral arrangements entered into between Plaintiffs and De- fendants in February of 1999, a written Quotation form dated March 16, 1999, which was on a preprinted form of "Accents Landscaping," was provided to Plaintiffs. 26. The said Quotation form itemized the dollar amounts charged with respect to the aspects of the services covered by the agreements. 6 ~;,;l~Jil-:, J. ,~, _",", !:.'" ' 1.1, n , ,'c.,,,"""""I,'11 - "'<" " ,~, :y. ',;,r' .<, " "j ." F 27. Preprinted on the back of the said "Quotation" form of Accents Landscaping were a small portion of certain specific terms, including a provision to the effect that, "All work to be performed in a workmanlike manner according to standard practices." 28. The contract between the Plaintiffs and Defendants is partially confirmed in writ- ing in the form of the said written Quotation, a true and correct copy of which is attached hereto as "Exhibit B" and incorporated herein by reference. PROFESSIONAL DESIGN SERVICES PERFORMED BY DEFENDANTS 29. Defendant David E. Fureman, acting as a design professional for Accents Land- scaping, prepared plans and designs which were used by Defendants in consulting with Plaintiffs and in Defendants' ultimate construction of the functional structures provided for under the Par- ties' agreement. 30. The said plans and designs, which included Computer Aided Design, or "CAD" plans, that were shown by David E. Fureman to Plaintiffs in consultation were not signed by any licensed engineer, landscape architect, or general architect. 31. Defendant David E. Fureman represented to Plaintiffs that Accents Landscaping had the necessary experience and competency to perform such design work, including with re- spect to the reshaping of the land and the planning of the structures, including the large func- tional retaining wall and stairs. 32. In engaging Defendants to do the design and construction project at their resi- dence and in entering into the primarily oral agreement, Plaintiffs reasonably relied on Defen- dants' oral warranty and oral representations. 7 ~""'> l,.~~ .,~ ,"" ,'''' '._ ~" ~, " I.' .' ". ,~,'C " :: 1<< :'~r~ '.,' ..."""., .. ~'H 33. Substantial portions of the services for which Plaintiffs contracted with Defen- dants constitute regulated services subject to professional licensing laws in Pennsylvania, includ- ing professional design services regnlated under Pennsylvania's Landscape Architects' Registra- tion Law, 63 P.S. gg901, et seq. 34. Alternatively, various aspects of the planning and designing that Defendants agreed to perform under the agreement constitute engineering or general architectural design ser- vices subject to Pennsylvania professional licensing laws. 35. Defendant David E. Fureman was not at relevant times licensed in Pennsylvania as a Landscape Architect, as a general Architect, or as an Engineer of any kind. 36. Defendant Accents Landscaping, Inc. was not at any relevant time a firm regis- tered with the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs as a firm which is permitted to provide architecturallandscaping, general architectural design, or engineering design services. 37. Plaintiffs were not aware at the time of the contracting or the performance of any work by Defendants under the contract that Defendant David E. Fureman and Defendant Accents Landscaping, Inc. were not properly licensed in the Commonwealth of Pennsylvania to perform professional design services of the types encompassed by the parties' agreement. DEFECTIVE DESIGN AND/OR WORK OF DEFENDANTS 38. Subsequent to the parties' entering the said agreement, Defendants planned and, either directly or through Defendants' subcontractors, excavated and reshaped and recontoured the steep hill behind Plaintiffs' residence, and constructed, either directly or through subcontrac- 8 ""'ffL , , ,~,IT ',""'" T', ' ~ p~ T' !"'f "",,", ',. ". ~~ ,~., ",'~ ", n"' " ',~~r tors of Defendants, the large retaining wall, with its integrated staircase, and the ~cond staircase provided for under the agreement. 39. Defendants also performed various other planting, seeding and generallandscap- ing work provided for under the agreement. 40. Defendants, prior to and after Plaintiffs' entering the agreement, represented to Plaintiffs that Defendants were approved by the E. P. Henry Company, as the manufacturer of a certain decorative wall product known as "Coventry Wall" decorative blocks, to perform struc- tural work of the nature being contracted, and that Defendants had substantial expertise specifi- cally with respect to such work. 41. In designing and constructing the said large retaining wall and two staircases, De- fendants included the said E. P. Henry Coventry Wall decorative block. 42. Based upon information in the form of admissions of Defendants, through their attorney in correspondence with the Attorney General's Office, Plaintiffs believe and therefore aver that Defendants, at the time they planned and constructed the retaining wall, were actually aware that the use of such E. P. Henry Coventry Wall decorative block product for a retaining wall of the height being constructed was contrary to the minimum specifications of the said manufacturer. 43. Upon information and belief, the retaining wall as designed and constructed by Defendants is not in conformity with the minimum specifications of the said manufacturer. 44. Upon information and belief, the said manufacturer has different types of inter- locking block products that are specified for construction of retaining walls with the height and design characteristics of the wall designed and built by Defendants for Plaintiffs' property. 9 . ,ll ~. f'~! .' " .,~,' r .,' . '!'"'," TI 45. Defendants actually knew, or alternatively had reason to know, that the said Cov- entry Wall decorative blocks were not in accordance with standard practices or recommended procedures in the industry or of the specific manufacturer for which Defendants claimed to be an authorized installer. 46. Plaintiffs were not aware at the time of contracting or during the construction of the retaining wall portion of the project that the wall was being designed and built out of con- formity with minimum engineering or architectural design standards, standard practices, or specifications of the manufacturer for whom Defendants claimed to be an authorized installer. 47. Defendants never indicated to Plaintiffs prior to the contracting or the construc- tion of the retaining wall portion of the project that there was any risk of failure from the design, or that the retaining wall was expected to fail. 48. Defendants completed the design, recontouring of the land, construction, and planting services relating to the Quotation form that is attached hereto as "Exhibit B" by late May, 1999, and by May 31, 1999, Plaintiffs had fully paid to Defendants $15,813.00 for such work. DEFECTS AND FAILURE OF STRUCTURES 49. In or about January of 2000, Plaintiffs began to see signs that the retaining wall and stairs were beginning to fail, including the development of a visible bulge in the retaining wall. 50. Upon discovery of the initial signs that the retaining wall was beginning to fail, Plaintiffs immediately contacted Defendants to demand that corrective action be taken. 10 f'!f~", ,. ";'f"~,,,., ,',' <," "'!1' .' 0 ~"' T''',' ""'" - -,," 51. Defendants, through David E. Fureman, orally promised to perform, and subse- quently did perform, certain attempted repairs on the retaining wall which involved Defendants' removing portions of the retaining wall's blocks and rebuilding those portions using an adhesive between the layers of replaced blocks which originally had been designed and built by Defen- dants with any batter or adhesive. 52. The Defendants' attempted remedial work on the wall was performed in a sloppy and unworkmanlike manner, with the said adhesives visibly sticking out of the spaces between the glued block and being visibly slopped onto the faces of many of the decorative blocks, caus- ing the wall to be unsightly. 53. The said attempted remedial work failed to permanently correct nle problem, and the retaining wall quickly began to again buckle and bulge out and otherwise fail. 54. In addition, portions of the staircases thereafter began to fail, with several steps beginning to pitch forward, or to the side, at steep angles, and several steps becoming loose. 55. The said problems with the retaining wall and staircases have subsequently be- come progressively worse, and the staircases as of the date of this Complaint are hazardous and cannot be used for their intended purpose. 56. With respect to the general plantings that were supposed to mark the rear bound- ary, Defendants incorrectly determined the rear boundary by a substantial amount and, as a re- suIt, installed the plantings substantially inside the boundary of Plaintiffs' yard, causing Plaintiffs to unnecessarily lose the use of a portion of the flat area of their back yard as recontoured by De- fendants. 11 :';;-~~~"",,,_,,_ ~..F'-IJJL,~~~,~, ",," ".~ ~ _~ ,. , -';"';' ,,( '-1< , , 'M~ 57. The two staircases that were part of the project as designed and constructed by Defendants were constructed of matching Coventry Wall architectural block so that those struc- tures would be architecturally and visually integrated with the retaining wall. REFUSAL TO REMEDY CONTINUING DEFECTS 58. After Defendants' attempted remedial work on the wall and stairs failed, Plaintiffs again contacted Defendants and made Defendants aware of such failures. 59. Notwithstanding the oral warranty, Defendants subsequently refused to take any further corrective work regarding the defects unless Plaintiffs paid Defendants additional monies. 60. Defendants, through David E. Fureman, however, did admit to Plaintiffs that the retaining wall had failed. FINAL NOTICE OF CLAIM TO DEFENDANTS 61. After repeated attempts to have Defendants perform the necessary remedial work failed to produce any results, Plaintiffs, through their attorney, James A. Diamond, Esquire, sent a written notice of claim to Defendants demanding that the defects be corrected. 62. A true and correct copy of a November 12, 2001 Notice of Claim sent on behalf of Plaintiffs to Defendants by certified mail is attached hereto as "Exhibit C," and incorporated herein by reference. 63. Notwithstanding the formal Notice of Claim, Defendants continued to fail or re- fuse to take necessary corrective action. 64. Defendants, through their attorney, David T. Kluz, have subsequently advised Plaintiffs, through their attorney, James A. Diamond, Esquire, that Defendants are not fully in- sured in that befendants have no applicable errors and omissions coverage. 12 "'~.~I~( -':',', F.':",,~ I' " ~ r.~.=",.,: ~~" '". ""; ""'T"'- ,~ , 65. As designed and constructed, the interrelated retaining wall and stair structures are defective, dangerous, out of conformity with standard practices, and are not fit or usable for their intended purposes. 66. Defendants' design of the wall and staircases was in conflict with standard prac- tices. 67. The retaining wall and stair structures were not built in a workmanlike manner. 68. The Defendants' work in locating and installing plants along the rear boundary was not done in a workmanlike manner or in accordance with the parties' agreement, in that the plants were placed in the wrong 10cations. 69. Defendants were negligent in their design of the retaining wall and stair struc- tures. 70. Defendants were negligent in their work constructing the retaining wall and stair structures. 71. Plaintiffs believe and therefore aver that Defendants did not have the necessary experience, competence and expertise to design and build the wall and stair structures called for under the parties' agreement. 72. Defendants' knowing misrepresentation that Accents Landscaping had profes- sional design capabilities and the competency to perform the work was intended to, and did, de- ceive Plaintiffs. 73. Plaintiffs believe and therefore aver that the cost of reasonably correcting the ma- terial problems and defects with Defendants' said work will cost well in excess of the original contract price. 13 ~71':i~ ,'~"'" "..,,'~ , I ".- , r "~, , ",,,\,'" 1--'"1" l' ! ~ . ~~. 74. Plaintiffs believe and therefore aver that appropriate remedial work will cost in excess of $27,000.00. 75. In order to perform the necessary remedial work to correct the defects and prob- lems with Defendants' design and construction, the structures as built by Defendants will need to be torn down, which will cause, among other 10sses for Plaintiffs, the loss of expensive shrub- bery and other plantings at the top of the retaining wall. 76. The fair market value of Plaintiffs' property upon which the work was done is many times greater than the cost of the necessary remedial work. 77. The defective structures as designed and currently constructed by Defendants on Plaintiffs' residential property are unsafe and unsightly, and have a substantial negative impact on the value of Plaintiffs' real estate. I; ,: 78. Plaintiffs have suffered, and continue to suffer, substantial damages and losses as a result of Defendants' negligent and improper design and construction services and as a result of Defendants' deceptive practices. 79. Plaintiffs believe and therefore aver that Defendant David E. Fureman is the alter- ego of Defendant Accents Landscaping, Inc. 80. Plaintiffs' claims herein exceed the $25,000.00 threshold for mandatory arbitra- tion referral under the Cumberland County Local Rules of Civil Procedure. 14 ''''~ 0 .\".,~ .. '~~., ,<",f '0', ^7' '.., r ,~:L ' ","" ' - _~'.k" ~ ~~__~ "~. COUNT I BREACH OF CONTRACT/EXPRESS AND IMPLIED WARRANTY (Terence and Patricia Smith v. Accents Landscaping, Inc. and David E. Fureman) 81. The allegations set forth in Paragraphs 1 through 80 herein are hereby incorpo- rated by reference. 82. Defendants' failure to design and build the retaining wall and stairs in a work- manlike manner, and Defendants' failure to properly locate the rear boundary line and place plantings constitute material breaches of the parties' agreement. 83. Defendants' failure to involve professional design staff in the planning and de- signing of the projects constitutes a material breach of the parties' agreement. 84. Defendants' express refusal to take any further necessary action to correct the substantial defects and problems with Defendants' work breaches the express general warranty of the parties' agreement. 85. Defendants' defective design and construction services also breach implied war- ranties of merchantability and fitness for the intended purpose. WHEREFORE, Plaintiffs respectfully request that this Court: a. Enter judgment in their favor and against Defendants, jointly and sever- ally, in the full amount of all damages and 10sses resulting from Defendants' said contract breaches, together with costs; and b. Order such other and further relief to Plaintiffs as this Court deems equita- ble. 15 ';;;.~,~;~ - =;-., ''F'''' ~ ." , r' ',<' -' "-I, ,,~. ^, """;'.c'!''' ,--., COUNT II NEGLIGENCE (Terence and Patricia Smith v. Accents Landscaping, Inc. and David E. Fureman) 86. The allegations set forth in Paragraphs 1 through 85 herein are hereby incorpo- rated by reference. 87. Defendant David E. Fureman individually and as an employee and agent of De- fendant Accents Landscaping, Inc., was negligent in his design and work relating to the reshap- ing of the land and installation of the said retaining wall and stair structures. 88. Plaintiffs have sustained, and continue to sustain, substantial losses and damages as a result of Defendants' negligence, including a substantial loss in the value of their real estate, and the loss of use of portions of their yard and the structures thereon. WHEREFORE, Plaintiffs respectfully request that this Court: a. Enter judgment in their favor and against Defendants David E. Fureman and Accents Landscaping, Inc., jointly and severally, for the full amount of all losses and damages resulting from Defendants' negligence, together with costs, and b. Order such other and further relief as this Court deems equitable. COUNT III FRAUD (Terence and Patricia Smith v. Accents Landscaping, Inc. and David E. Fureman) 89. The allegations set forth in Paragraphs 1 through 88 herein are hereby incorpo- rated by reference. 16 ""'~~>,!",,,-,,,,,,,_,,,,,,__,,,:,_ ""f" '-r' '-,' ,. , ~f'~1 or' , ' ~. ! 90. The said actions and misrepresentations of Defendants were fraudulent. 91. As a result of such fraudulent actions by Defendants, Plaintiffs have sustained, and continue to sustain, substantiallosses and damages, including a substantialloss in the value of their real estate. WHEREFORE, Plaintiffs respectfully request that this Court: a. Enter judgment in their favor and against Defendants David E. Fureman and Accents Landscaping, Inc., jointly and severally, for the full amount of all losses and damages as a result of Defendants' fraudulent and deceptive practices; for punitive dam- ages; and for costs; and b. Order such other and further relief as this Court deems equitable. COUNT IV UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW CLAIMS (Terence and Patricia Smith v. Accents Landscaping, Inc. and David E. Fureman) 92. The allegations set forth in Paragraphs 1 through 91 herein are hereby incorpo- rated by reference. 93. Plaintiffs purchased the services at issue solely for personal and farnily-as op- posed to business-purposes. 94. Defendants' said deceptive and fraudulent conduct and practices were likely to create, and did create, confusion and misunderstanding on the part of Plaintiffs. 17 ,.j.i<il~~, 'O~"""~--:"~", ";~' ,'_ _ c , , "., ,"t,h ,< , )~.- -I ...Jl 95. The said improvements to Plaintiffs' real property by Defendants were also below the standards or quality agreed to in writing in that the design and construction services at issue were not executed in a workmanlike manner or in accordance with standard practices. 96. Defendants' actions and conduct constitute "unfair methods of competition" and "unfair or deceptive acts or practices" within the meaning of the Unfair Trade Practices and Con- sumer Protection Law, as amended, 73 P.S. ~~201-1, et seq. WHEREFORE, Plaintiffs respectfully request that this Court: a. Enter judgment in their favor and against Defendants David E. Fureman and Accents Landscaping, Inc., jointly and severally, for the full amount of all losses; for treble damages pursuant to 73 P.S. ~201-9.2; for statutory attorneys' fees pursuant to 73 P.S. ~201-9.2; and for costs; and b. Order such other and further relief as this Court deems equitable. Respectfully submitted, JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 BX J S A. DIAMOND a. LD. No. 43902 Au~ Attorneys for Plaintiff Dated: June 11,2002 18 i""-;~irf,~rr,rr",.H!.t.J ,'~ ,''''., ., . - ~ ~F ,.., '.', " ,,,' "'r",,',' , ,,,.,,' ,Wi"--' '..~".' ""'" ""\;""-'~". _ _" ~'foo, ,~,^ . , ' -~l ' , EXHIBIT A , ~ .......,""~, ~.- . cents LANDSCAPING February 1, 1999 Mr. & Mrs. Terence Smith 3922 Emilridge Drive ~~hmricsburg,PA 17055 Dear Terence & Patricia: Welcome to the ~echanicsburg area. We hope over the past several months you have become settled in yournewhouse and are getting better acquainted with the community. We . a1So trust you will find the Mechanicsburg area a very exciting and IlIiique place to live and work. We would like to take this opportunity to provide you with some information regarding the various services Accents Landscaping provides to you as a home-owner. Enclosed you will find a brochure describing us and the services we offer to the community. As a new home-owner in the areaWl; offer a free Landscape Consultation and $ 50.00 (lff your first order over $ 100.00 including any design work which we render for your property. During your Landscape Consultation we will be glad to answer any questions or concerns you may have concerning your landscape and discuss the potential benefits a well landscaped home provides. We will also explain the services provided by Accents Landscaping at this time to help in your decision making prOCl;ss. Please take a moment to read the enclosed brochure and telephone us at 1..800-201-3687 to t up your complimentary Landscape Consultation. Again, welcome to the area and we hope . hear from you soon! Sincerely, ACCENTS LANDSCAPING ~/d ~OJ-- David E. Fureman PA Accredited Nurseryman 1636 Williams Grove Road Dillsburg, PA 17019-9006 Tel: (717) 432'8942 (717) 728'9968 (800) 201'3687 Fax: (717) 432'8832 !,';;\:-rn ~l ,"'.. ~",_ ~.,.,,~ _. ".~ ~_ . -. ,--, -- I ,:' . ., ~.,- rV-' ."'. - . '1 cents LANDSCAPING NDSCAPE DESIGN SERVICES . Custom - Detailed landscape design drawn to scale for your property, including every aspect of the home landscape. Specialty - A specific style of design with your personal taste in mind. . Perennial Borders . Herb Gardens . Rose Beds . Japanese Garden Formal Garden ic - Focus on one specific area elandscape e pool area or a new addition) Enjoy YOllr outdoor lilting area year-round with a professional landscape design To schedule your FREE Landscape Consultation with our Professional Design Staff! (717) 432-8942 or (800) 201-3687 ock wer Plantings I Flower Borders rk for the lawn ENANCE SERVICES IIlt""'Addifiat well groomed . c:htOslrleWalk$,ctirbsatldplaht beirs":"',; "......, .... . Ulchillg ~'lhcrMslf~p\aii(itealfti wtiil€irddfi\gfbih~bviiiilU ", : . pearance of the landscape "ming- CrWBcttrimmin,g techniques.keepyour plants healthy :' nd beal!tiful . SpringlFall Cleanup - Eliminate those iandscape tasks which can e burdensome el1ilizing - Maintains and enriches your lawn, trees & shrubbery ER SERVIGES ck Wall Construction tainlng Wall Conslruction 'very Service of Plant Material and Bulk Products ,-g" -,-',"".',-",',' , ".~ . EXHIBIT B ", ,"--- .~ , , '~-,'< li "ACCENTS LANDSCAPING 1636 Williams Grove Road DillsblLlrg, PA 17019-9006 (717) 432-8942/1-800-201-3687 (717) 432-8832 - Fax Number Sold To: SMITH, TERRY & PATRICIA 3922 EMILRIDGE DRIVE MECHANICSBURG, PA 17055 CUstomer SMI99001 Invoice Invoice Number: 509 Invoice Date: 5/24/99 Page: 1 E Customer PO Payment Terms Sales Rep ID Due Date FOREMAN , DAVID 5/24/99' Description CONSTRUCTION OF (1) WALL USING GREY (PEWTER) 6" COVENTRY WALL SYSTEM. WALL TO BE APPROXIMATELY 125' LONG X 5' HIGH. CONsTRUCTION OF STEPS FROM THE TOP OF WALL TO THE TOP OF YARD (EXISTING GRASS) CONSTRUCTION OF STEPS ON THE LEFT SIDE OF HOUSE LEADING TO THE BACK YARD. SEEDING OF EXCAVATED AREA AT BOTTOM OF MAIN WALL. SEEDING OF DAMAGED AREAS COMPLETED AT NO CHARGE. APPLICATION OF TANBARK MULCH TO THE GARDEN AREA ABOVE WALL CONTRACT INCLUDES: EXCAVATION OF SITE, REMOVAL OF TREES, GROUNDCOVER, AND DEBRIS. CONSTRUCTION OF WALL AND STEPS. MISCELLANEOUS MATERIALS. <:P ~Ac}P' . 0 '::.. 1. . C) ~;Y- ~~ ~ 9Q.,& \ ~\ 'b(tY '2)\ c'\ C\ \ ~ ~ ~ Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL _ >,0' ~ ~\p~~W/ ;'--'~~,_,_ n'.~",e..." ,~,_"_." ^"~_, cr" ":-" t," ';c- I "'~ ~ ~ - , -- .. T " Amount 12,000.00 1,000.00 2,000.00 500.00 300.00 15,800.00 15,800.00 0.00 15,800.00 ~, ~I , " PERMITS--AII permits to be the responsibility of customer. ABNORMAL DIGGING CONDITIONS--- This contract is based on normal digging condilions. If abnormal digging conditions are encountered such as rocks, rools, concrete, water, compacted soH, etc, additional onarge 5 will be added to contract to cover cost of extra work to complete job, c.;..VVN GUARANTEEmWe guarantee to use the amounl of seed and fertilizer speciOed anel do satisfactory worl<. Due 10 uncertainty 01 weather conditions, we are not responsible (or growth of grass and under no condlllons are we. resposible for weeds, or washout which may occur. SHRUBBERY AND TREE GUARANTEE---Provided the invoice was paid as agreed and proper irrigation and care has been given, all shrubbery and trees are guaranteed at 100% for 1 year. Customer will be billed for planllng costs of replacements, DISCLAIM: If any shrubbery or trees die during the 1st year due to abnormal cold, Wind, or drought thecuslomer will be billed at 1/2 of the tree or shrubbery prices and 1/2 of the planting COSIS We are not responsible (or loss due to vandalism, pels, mechanical damage, CONDITIONS OF CONTRACT.nAII malerial is guaranteed 10 be as speCified, All work 10 be completed in a wori<manlike manner according to slandard practices, Any ail,eration or deviation from above speciOcations Involving extra costs will be executed only upon wrillen orders, and will become an extra charge over a'nd above the estimate, All agreements contingent.~n strikes, accidents, or delays beyond our controi, Owner to carry fire. tornado, or other necessary insurance':-' INSTRUCTIONS: Sign, date and return this copy with proper deposit to have work scheduled, "'~!'ffrT,~ -. r 0_ _) "I..,,",,, ";(\,-'-"lr\l_l!:\;- c: _" ,'" =~__=__~~~ ~,~ "! .. EXHIBIT C 'I ~~ '"_~"~ll.~~ ! '. LAW OFFICES otoAlso Admitted to NJ Bar JOHNSTON & DIAMOND A PROFESSIONAL CORPORATION SUITE 100 1 SO CORPORATE CENTER DRIVE P. 0, BOX 98 CAMP HILL, PENNSYLVANIA 17001-0098 TELEPHONE (717) 975-5500 TELECOPIER (717) 975-5511 CHARLES W. JOHNSTON JAME5 A, DIAMOND' .~- November 12, 2001 VIA CERTIFIED MAIL David E. Fureman Accents Landscaping 1636 Williams Grove Road Dillsburg,PA 17019-9006 Re: Improvements to Property of Terence and Patricia Smith 3922 Emilridge Drive, Mechmricsburg, PA 17050 Notice of Claim Dear Mr, Fureman: Please be advised that our law firm is representing ~. and Mrs. Terence Smith with re- spect to their rights and claims against you and your company, Accents Landscaping, concerning the retaining wall, exterior staircases, and related projects constructed by you and your firm at the above-referenced property. As you are already well aware, the retaining wall that you and your firm installed after having portion of the hill behind the Smiths' home excavated is improperly constructed and be- ginning to buckle and fail, causing a potentially hazardous situation. The two staircases installed by you and your firm also are defective and becoming dangerous, with some of the steps becom- ing loose and some beginning to substantially pitch forward, making it unsafe to use them. You held your firm out to the public as having expertise in, among other things, "retain- ing wall construction," including in the brochure you sent to the Smiths in your February, 1999 letter soliciting work. You personally were involved on behalf of your firm in designing the construction project for the Smiths, and the Smiths reasonably and detrimentally relied upon your purported expertise and experience in paying you and your firm in excess of $15,800.00, As I understand it from the Smiths, when the retaining wall, stairs and related improve- ments began to suddenly fail, the Smiths brought the serious matter to your attention, and you --~~ ~~<,,,'. ~'~_~'_'1__'O~f< ' , +< :rr -< David E. Fureman November 12, 2001 Page 2 inspected the property with a representative of E. P. Henry, the manufacturer of the wall system you used, You admitted that there were problems with the project, but refused to take any mean- ingful steps to fully correct the project unless the Smiths agreed to pay you additional money. Some minor temporary steps were taken by you, including gluing some of the stones together. However, this not only failed to meaningfully correct the serious and hazardous structural issues caused by the defective design and construction, it also made the wall even more unsightly from a cosmetic standpoint, since the glue has been slopped onto the face of several of the stones, Gluing the stones together with adhesive, as we understand it, will now also make any project to fully and permanently correct the defective work more difficult and expensive. It is our understanding from our research that the particular Coventry wall system that you incorporated into your design and construction project for reshaping the contours of the Smiths' back yard is not intended or suitable for use as an actual retaining wall. As we under- stand it from the manufacturer's specifications, the maximum unreinforced height for the Coven- try wall system is only 24 inches for non-battered walls, and only 36 inches for walls built with a set-back. It is not designed to actually hold back a recontonred hillside in the fashion used by you and your firm, The work by your firm on the retaining wall and staircases fails to meet your firm's contractual obligations to complete the project in a workmanlike manner in accordance with standard practices. You and your firm also certainly should have been aware that the wall system was not designed to be used as it was in your project, and you and your firm were profes- sionally negligent in constructing the defective improvements. Critical portions of the services that were performed by you and your firm for the Smiths (and which are offered to the public generally by your firm) involve the practice of landscape architecture within the memring of Pennsylvania's Landscape Architects' Registration Law, The involvement of you and your firm in the projects at the Smith property, and yom firm's holding itself out to the public as being competent to perform such work, would be unlawful, and not merely negligent and a violation of your contract with the Smiths if you and your firm are not licensed to perform the work. ~oreover, your firm's leading the Smiths and the public to be- lieve your firm is qualified to perform landscape architecture work, including the type of retain- ing wall construction performed for the Smiths, would constitute fraud and a violation of the Un- ftllr Trade Practices and Consumer Protection Law if it turns out that you and your firm are not licensed and competent to perform the type of work you did at the Smiths' residence. Our firm's initial check with the Pennsylvania Department of State did not reveal a cur- rent license or registration for you or for Accents Landscaping to lawfully engage in landscape architecture work in Pennsylvania, and similarly did not reflect any current engineer's or general architect's license for you, If you and/or your firm do have a professional license in Pennsyl- vania permitting you to lawfully practice landscape architecture, we request that you immedi- ately provide proof of such licensure to us. "W:~.l"'_"___"";!"~"':'h"" '-'_<7 -< - -, ,~-_-, ' r .,~'t"'- , "", .-".~-- --" -~, .'. David E, Fureman November 12, 2001 Page 3 Assuming that you and your firm are properly licensed to perform the work in question notwithstanding the apparent absence of a listing with the Pennsylvania Department of State, we believe that the work as performed was so far below the acceptable standard as to be a violation of the Pennsylvania Landscape Architects' Registration Law, and regulations thereunder. To the extent that is the case, you and your firm may be subject to sanctions by the Pennsylvania De- partment of State. It is the Smiths' understanding at this point, from consultations with other contractors, that the only way to fully and permanently remedy the unstable and unsightly situation is to com- pletely remove the existing failed structures and replace them with ones that are appropriate from an engineering standpoint. The Smiths understand that even if the property were re-graded to compromise the design to a less-desirable one, and if some of the current stones could be sal- vaged and incorporated into multiple lower walls instead of fully replacing the wall with another of the same height, the cost of this partial correction would, at a minimum, cost $24,000.00. To fully remedy the problem will obviously cost significantly more than that conservative amount. The Smiths understood from you when they hired you that you and your firm are fully insured. In view of the magnitude of the damages from the failed construction project, we re- quest that you immediately put your finn's Errors and Omissions insurance carrier on notice of this claim, and ask that the claims adjuster immediately call the undersigned to explore whether it is possible to amicably resolve this matter with out litigation, Please advise the carrier, how- ever, that if we do not have any meaningful proposal within twenty-one (21) days of the date of this letter to fully and promptly remedy the problem caused by the defective construction, we will assume that no such proposal is going to be made, and will proceed with litigation against you and your firm on the basis of that assumption. Thank you for your kind attention to this urgent matter, . \ Very truly yours, J-~\;>--A JAMES A. DIAMOND JAD/jrf cc: Mr. and Mrs. Terence Smith i,{'~'n?,,"tll ."- ~,. .~ T " , -,~., "'__";0 ." . - ~, .;~ __''''"'_~<.I_'' ::"';'<0' .;Y!lf:i'li ,r,'", --" =~ ",~' ~ M ?"- M ..D m IT" Q:) ..D IT" CJ CJ CJ CJ ru ru N.,.. (Plea,. erln' Clearly) /1<>." ..mpl....1IY mall/O') . m uav~a ~.ureman/1\CCents Landscap~ng g: Siif~1ff-~:;rfil~:OS~'~~'~"Rd:'-""--"-------'--'-'--'-------'-' ~ ;;i~i'iij;~~{g-----PA-"--17-o19:::9oii6'------'-'-""--'----"------' Postage $ , '.$<-1 11/12/01 Certified Fee .(0 ISO Pos..... Return Receipt Fee H... (Endorsement Required) Restrlcted Delivery Fee (Endorsement Required) TotaJ Postage & Fees $ S.H PS Form 3800, July 1999 See Reverse for fnstructlOr1ls .+ i . Complete ttem~ 1, 2, and 3. Also complete. item 4 if Restricted Delivery is desired. . Print your name and address on the reverse so that we pan return the card to you. . Attach this card to the back of the mailpiece, or on the front if space pennits. 1. Article Addressed to: David E. Fureman Accents Landscaping 1636 Williams Grove Rd. 'Dillsburg, PA 17019-9006 D. Is delivery address diffeient from item 1? If YES, enter delivery address below: 3. Serv!ce Type IX Certified Mail 0 Express Mail D Registered 0 Return Receipt for Merchandise o Insured Mail 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes )099 ;3220 Q009 (i~9;3 ,6171 ,j . I'll Form 38 t 1 ,. ~uly !19p9 ; po(r(estlc Return Receipt 2. Article N!J~,b~r (Cppy ~rpm: Ser;ice I~~Q, '1 -, ~ " ~~ 102595-99.M.1789 <="' -- "~ ~ ~ VERIFICATION I, TERENCE SMITH, hereby verify that the statements contained in the foregoing Complaint are true and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa,C.S. 94904 relating to unsworn falsification to authorities. I~q r J;L TERENCE SMITH Dated: b( 'Cf o~ ,2002 :'#~ffl~K""" ,~'~,",,'7"~ _ .", c-' ,,._,_, ~"" '" "~,, ~ r- - , ~" "'[--"f ,- -- 0,";"7 "'__o"~,. . f- ~~ '1 - " ."..",...-~" CERTIFICATE OF SERVICE I, James A. Diamond, Esquire, hereby certify that I have this date served the foregoing Complaint upon the following by depositing a copy of the same in the United States ~ail, first class postage prepaid, addressed as follows: Accents Landscaping, Inc. 1636 Williams Grove Road DilIsburg, PA 17019 David E. Fureman 1636 Williams Grove Road DilIsburg, PA 17019 ~.~ f , Dated: June 11, 2002 ':"~,:w,.J - :J ",:'x_. ":_" ~_,' '- _, _" ,__, -_ 1.'._ _,n _~" . " ~,< ~ ,":1- -,- ~ _", if,' '," -- ) ~ ,_.--, o ,,,,,,!~~~~~m&m , ,<',' n, <~" '''" <~,' "'C ".~." ...." Ii J_I".'['11f \S) 0 0 " C P0 ~l ~ '- :Pen c:: (r1fT, ~'~'" -)"'1 Z:X) ~- r"- zr+ --r ~::l: 1'0 ...:;:',..'--i ':56 ~c' -0 L~~~ )>" 3: Z "' ~CJ <!''' - c r:? ,1m Z N ~ ~ ~ ~J} _ ~~M_".!fi!~II!W""W~l1'-""-$4f~':~;;:0r~1'f~)f}-'V"'If"";-i~",""'i,'E']~g'~~*7"'l',w:~~w.~';~\"i'}fH,!,;:j!':';;R-F":'fln~~~~~rr;;:i l" .f TERENCE S~ITH and PATRICIA SMITH, husband and wife, Plaintiffs : IN THE COURT OF CO~ON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO, 01-6927 Civil ACCENTS LANDSCAPING, INC., a Pennsylvmria Corporation, and DAVID E. FURE~, Defendants : CIVIL ACTION - LAW DEFENDANTS' ANSWER PARTIES 1. Admitted, 2. Admitted. 3. Admitted, 4, Admitted. REPRESENTATIONS OF DEFENDANTS 5. Admitted. 6, Admitted. 7. Admitted, 8. Admitted. 9, Admitted, 10. Admitted, 11. Denied, Defendant believes and therefore avers that E.P. Henry does not have a list of approved contractors. ;"_~~~!::J" .0 " , ' . ,. ,.~ 1'!'I'P';1iII!!e ,. _l}{:jj:.,' ~ 12. Denied, Defendant did not fully warrant his construction, supplies ar).d plantings fully for five years. 13, Denied, Defendant has no knowledge of such example of a wall falling down, 14. Denied. The terms of the contract specifically permit additional charges to be made by the contractor. 15, Admitted. 16, Admitted. 17. Admitted. 18. Denied. While the Plaintiffs may not have know that Accents Landscaping was a corporation, such information is a matter of public record, 19. Admitted. 20. Admitted, 21. Admitted, 22, Denied. Plaintiffs had an obligation to locate the rear boundary. 23, Denied. Defendant has no knowledge of what is meant by the Plaintiffs' use ofthe term fully insured. Defendant has workers' compensation insurance and liability insurance. 24, Denied, Defendant denies that any general five-year warranty was issued, 25. Admitted. 26. Admitted. 27. Admitted, 28, Admitted. '.;s,-qc~~nm .. ,~,m ~' <-- 'r- ~1' "' -- - - ~^~-, PROFESSIONAL DESIGN SERVICES PERFORMED BY DEFENDANTS 29. Admitted. 30. Denied, The Defendant has no knowledge of Computer Aided Design plans and further denies that any plans presented to Plaintiffs were required to be signed by a licensed engineer, landscape architect or general architect. 31. Admitted, 32, Admitted, 33, Denied. The activities undertaken by the Defendant were not subject to professional licensing laws, 34. Denied. The activities undertaken by the Defendant were not subject to professional licensing laws. 35. Denied. The activities undertaken by the Defendant were not subje(:t to professional licensing laws. 36, Denied. The activities undertaken by the Defendant were not subject to professional licensing laws, 37. Denied. The activities undertaken by the Defendant were not subject to professional licensing laws. DEFECTIVE DESIGN AND/OR WORK OF DEFENDANTS 38. Admitted. 39, Admitted, 40. Denied. Defendant believes and therefore avers that E.P. Henry does not have a list of approved contractors. ""'k-~~ ,-c -~~ "r --, I! ~, ,fJ ~ ="""Q~ 41. Admitted. 42. Denied. The B.P. Henry specifications for use ofthe Coventry Wall decorative block changed every year for the last three years, Defendant believes and therefore aver$ that the earliest specifications advanced by E.P. Henry were met. 43. Denied. The E.P. Henry specifications for use of the Coventry Wall decorative block changed every year for the last three years. Defendant believes and therefore avers that the earliest specifications advanced by E.P, Henry were met. 44, Admitted. 45. Denied. Defendant believes and therefore avers that E.P. Henry does not have a list of approved contractors. 46. Denied, Defendant believes and therefore avers that E,P, Henry does not have a list of approved contractors, 47. Admitted, 48, Admitted, DEFECTS AND FAILURES OF STRUCTURES 49. Denied, Defendants have no knowledge of what Plaintiffs began to see, 50. Denied. Defendants have no knowledge of how quickly Plaintiffs notified them of what they were alleged to have seen, 51. Admitted. 52. Denied, Defendants remedial work was neither sloppy, nor performed in an unworkmanlike manner. Any visible adhesive was minimal. 1$1';<_":,,. ;,--"-'!':"?'- ,'M' r- P--""!' t"'! , i?' 53. Denied. Defendant believes and therefore avers that the remedial work was not improper and did not result in the alleged failure. 54, Denied, The construction of the steps was within the design paranleters. 55, Denied, The retaining wall has not failed and the staircases are not hazardous, 56, Denied, The Plaintiffs established the location of all plantings and the boundary line, 57, Admitted, REFUSAL TO REMEDY CONTINUING DEFECTS 58. Admitted. 59. Denied. The contract clearly calls for additional monies to be paid under unusual circumstances. Defendant requested that Plaintiff pay for additional material which would be used to tie in the retaining wall to the retained earth, 60. Denied. The retaining wall remains erect, although it has a bulge, FINAL NOTICE OF CLAIM TO DEFENDANTS 61. Admitted, 62. Admitted. 63. Admitted in part, Denied in part. It is admitted that the Defendant has refused to take action, but it is denied that what the Plaintiff refers to as necessary corrective action is required. 64. Admitted in part, Denied in part. It is admitted that the Defendants are not insured with Errors and Omissions coverage, but it is denied that the Defendants are not fully covered. The only insurance required is workers' compensation and liability insurance. 65. The paragraph alleges a conclusion oflaw for which is an answer is not required. 66. The paragraph alleges a conclusion oflaw for which is an answer is not required. ";,,,~:~[~,T.,_. ,1lOO,J,,, " ir , r, ~ , ",' I ~ ,.- 1:1f 67, The paragraph alleges a conclusion oflaw for which is an answer is not required. 6S, The paragraph alleges a conclusion oflaw for which is an answer is not required. 69, The paragraph alleges a conclusion of law for which is an answer is not required. 70, The paragraph alleges a conclusion oflaw for which is an answer is not required. 71, The paragraph alleges a conclusion of law for which is an answer is not required, 72. The paragraph alleges a conclusion oflaw for which is an answer is not required, 73. Denied, While Plaintiffs may believe that the cost of bringing the r€taining wall and steps to their own standards will be a certain amount, the Defendants contend that tllte amount would be significantly less. 74. Denied, While Plaintiffs may believe that the cost of bringing the retaining wall and steps to their own standards will be a certain amount, the Defendants contend that me amount would be significantly less. 75. Denied. There is no reason to believe that any remedial work result in the loss of shrubbery. 76. Admitted. 77. The paragraph alleges a conclusion oflaw for which is an answer is not required. 7S, The paragraph alleges a conclusion oflaw for which is an answer is not required, 79, Admitted in part, Denied in part, It is admitted that David E. Fureman is the owner and sole stockholder of Accents Landscaping, Inc. It is denied that the term alter-ego is applicable. SO. Admitted in part, Denied in part, It is admitted that $ 25,000 is beyond the threshold of mandatory arbitration, but it is denied that the potential liability of this case exceeds this amount. ',"I'ii~,:,\q_irfJ ,~., ,~__<, ,_ J____ r' ,-, 1--'" J- , , ~".,.._~. ~'" n~~= l~ - COUNT I BREACH OF CONTRACT/EXPRESS AND IMPLIED WARRANTY 81. The answers set forth in Paragraphs 1 through 80 herein are incorporated by reference, 82. The paragraph alleges a conclusion oflaw for which is an answer is not required. 83, The paragraph alleges a conclusion oflaw for which is an answer is not required. 84, The paragraph alleges a conclusion of law for which is an answer is not required. 85, The paragraph alleges a conclusion of law for which is an answer is not required. COUNT II NEGLIGENCE 86, The answers set forth in Paragraphs I through 85 herein are incorporated by reference. 87. The paragraph alleges a conclusion oflaw for which is an answer is not required, 88, The paragraph alleges a conclusion oflaw for which is an answer is not required. COUNT III FRAUD 89, The answers set forth in Paragraphs 1 through 88 herein are incorporated by reference, 90. The paragraph alleges a conclusion oflaw for which is an answer is not required. 91, The paragraph alleges a conclusion of law for which is an answer is not required, -r_':-7t:'-')'~~-:,_~ ~,- ~ ~ r- ~ , ,fliI'iW1j!j; ~,.,- ~ >, ~ COUNT IV UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW CLAIMS 92, The answers set forth in Paragraphs 1 through 91 herein are incorporated by reference, 93, Admitted. 94. The paragraph alleges a conclusion of law for which is an answer is not required. 95. Denied. It is denied that the improvements were below the standards or quality agreed to. It is further denied that the improvements were not executed in a workmanlike manner. 96, The paragraph alleges a conclusion of law for which is an answer is not required, WHEREFORE, Defendant demands judgment in his favor and dismissal of the complaint. Respectfully submitted, Date: '1..,:> ~~tA7 "0 U k JJ~ David T. Kluz, Esquire LD, # 18005 212 Locust Street, Suite 404 Harrisburg, P A 171 0 1 (717)238-8183 Attorney for Defendants , """~RJ!I_fj " " " ''1'-, - r, ,*_ ~iir -- ~,~ .:-:,*~: VERIFICATION I, DAVID E. FUREMAN, verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. ~ 4904, relating to unsworn falsification to authorities. Date: ,...,/;0.3) CB.~ ..D../lA )&c4uIlJHY\LY) David E. Fureman ." ''''''''-,, - ':). . ":,,, ~ .. <',r~ - CERTIFICATE OF SERVICE I, ELLEN~. P AL~ER, Legal Assistant, certify that I have served a copy of the foregoing document on the individuallisted below by depositing the same in the United States ~ail, First Class, postage prepaid, at Harrisburg, Pennsylvmria: James A. Diamond, Esquire Johnston & Diamond Suite 100, 150 Corporate Center Drive P.O. Box 98 Camp Hill, PA 17001-0098 Date: ~loo)o~ ~~^ n ~, Palmer, Legal Assistant 212 Locust Street, Suite 404 Harrisburg, PA 17101 (717)238-8183 ,~~'ti~",,:"'~ -~ -~- - 1 ~~. ,. "~- ~ .- ~ '0 .~ -:.~ ,,-, ,- ~>.. 'r _.,-_'~" "~_~~~'O'''' "~ 'Tn 1 iT 0 C1 C , . , 1 ~ '- rll r,'_ .- r ~-' ---~ Z " /~ (-- ;"',.) en C ::'< r- ......... '- " <, ~J_?: '. L. C' ::;:;.:. ~,) - c::: ::~~ % )>' -< :1;: ," I ,) -, -, F-;s /.II -'11',~ ~ " ., _", ,~~~ j 1!~ j:,]ii ~ ~~~~'""""'", :;;Jtt:, .-~~~!\l:lIl~t~~f'"'-~,,",~_u~,';":"":"'~~~'",;'.--',;~'~'-'-'1" ,'Ho' """~f'''''''''M",'''-;;''' ~"~"f':';; ';~'1P"-!i~':'-Jjri'~~~,a~~~?&,j~\}j&;Wll~S,%o;'