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HomeMy WebLinkAbout01-07008 ~ COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL E, GARMAN and HARRY L. . GROSSMAN, trading and doing business as NORTHERN CONSTRUCTION ASSOCIATES OF PENNSYL VANIA, a partoership Plaintiffs Civil Tenn No, 0\ - ,,/o6f c ; U ~ l '-r 8?..1r") vs, ESTHER HUMPHREY, LISA HATHCOX and ELLA JEAN NICHOLS, jointly and severally, Defendants Civil Action - Law 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 reliefrequested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Court Administrator Cumberland County Courthouse Carlisle, PA 17013 717-240-6200 NICHOLAS & FOREMAN, P.C. By: ruce D. orem , s 4409 North Front Street Harrisburg, PA 17110 (717) 236-9391 ID #21193 Attorneys for Plaintiff Jfl'~~,:^_"" "," _1 - ,~", --'-;;-'W,..'1"~'-~,_,_~,- '''~''-,''''_ ,,~___"_, - -~ ,,< ,,"-,. - ,. ". ~" - ;:;!t~' '''}-'''~,~. ,n," , ''''',''' " COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA MICHAEL E. GARMAN and HARRY L. GROSSMAN, trading and doing business as NORTHERN CONSTRUCTION ASSOCIATES OF PENNSYLVANIA, a partoership Plaintiffs Civil Term No, 0\ - 'lOOP COLl ~>t vs, ESTHER HUMPHREY, LISA HATHCOX and ELLA JEAN NICHOLS, jointly and severally, Defendants Civil Action - Law NOTICIA Le han demandado a Usted en la corte. Si Usted quiere defenderse de estas demandas expuestas en las paginas siguientes, Usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion, Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su personal. Sea avisado que si Usted no se defiende, la corte tomara medidas y puede entrar una orden contra Usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para Usted. LLEVE EST A DEMANDA A UN ABOGADO INMEDATAMENTE, SI NO TlENE ABOGADO 0 SI NO TIENE EL DINERO SUFIClENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRlTA ABAJO PARA A VERlGUAR DONDE SE PUEDE CONSEGUlR ASISTENCIA LEGAL. Lawyer Referral Service Court Administrator Cumberland County Courthouse Carlisle, P A 17013 717-240-6200 By: Bruce D. Forem 4409 North Front Street Harrisburg, PA 17110 (717) 236-9391 ID #21193 Attorneys for Plaintiff 2 ""'1:*__3:filli';ii _>~'__ ,~. --C!- ."d'__', ,-,_ -.c-''."-'~ _, ,-, ,,, ~ - ,~~~~, ~,,- ,1 )" --, r-,,> '" ~- , :t"'~""'-~"'- "d COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL E. GARMAN and HARRY L, GROSSMAN, trading and doing business as NORTHERN CONSTRUCTION ASSOCIATES OF PENNSYLVANIA, a partnership Plaintiffs Civil Term No, 0\- 7DOf c,-o~l't~ vs, ESTHER HUMPHREY, LISA HATHCOX and ELLA JEAN NICHOLS, jointly and severally, Defendants Civil Action - Law COMPLAINT AND NOW comes the Plaintiffs, Michael E. Garman and Harry 1. Grossman, trading and doing business as Northern Construction Associates, a partnership existing under the laws of the Commonwealth of Pennsylvania, by their attorneys, Nicholas & Foreman, P.C. and aver as follows: 1, The Plaintiffs, Michael E. Garman and Harry 1. Grossman, are adult individuals trading and doing business as Northern Construction Associates, a Pennsylvania General Partnership having is principal place of business at 518 Bridge Street, New Cumberland, Cumberland County, Pennsylvania, 17070. 2. The Defendants, Esther Humphrey, Lisa Hathcox, and Ella Jean Nichols, are all adult individuals, each residing at 1208 Redwood Hills Circle, Carlisle, Cumberland County, Pennsylvania, 17013. 3. At all times relevant hereto, each of the Defendants was acting as the authorized agent of all other Defendants and all liability of the Defendants is joint and several. 3 --"",j~:i1r-,. ., .. '~',"_f":Tr:-_ ~ _..~__"",,, <) ,_" c,; "__,~ "n __ " ';:'_ '" -.'_,._:_ff__ ~, ~,,",,' 7;"_1_ '1..1"--' ..."X'_" -.".", ,..-,.. ,-,- "'- '~~'" 4. On or about October 9, 2000, Defendants, jointly and severally, entered into a written Construction Agreement whereby Defendants contracted with Plaintiffs to construct a single family residential house on a lot owned by Defendants known as Lot #22 Redwood Hills, Middlesex Township, Cumberland County, Pennsylvania. A true and correct copy of the said Construction Agreement is attached hereto, labeled Exhibit "A", and made a part hereof. 5. Under the terms of the aforesaid Agreement, the Defendants were not entitled to the keys or possession of the property being constructed until all sums due under the Agreement were paid in full. 6. Under Paragraph 16 of the aforesaid Agreement, in the event that the Defendants occupied or took possession of the property before the final payment was made, it would be a breach of the contract and would be a legal acceptance by Defendants of the newly constructed home in "as is" condition waiving any and all claims against the Plaintiffs as contractors. 7. On or about the 26th day of April 2001, Defendants took possession of the property, moved in and have occupied the same since that date. 8. Despite repeated demands, while Defendants had paid part ofthe sum due, the Defendants continue to owe $14,512.11 principal on the construction contract, which amount they have refused and continue to refuse to pay. 9. Under the terms of the aforesaid contract, all late payments result in a late charge of $25 per day. Since the date that Defendants have taken possession, through the 4 >Y~i;j' -,' ,.~_, -__""'-""~~'~"2~':"~C{Tt__""'" _'C' ,"_'~ -""'-"', , -?- , - ,-", --- ;lW -~ ,- > 13th day of December 2001, 232 days have elapsed obligating Defendants to pay to Plaintiffs a late charge in the amount of $5,800. 10. The said late charge continues to accrue at the rate of $25 per day until the aforesaid receipt of payment is made in full. WHEREFORE, Plaintiffs demand judgment against the Defendants, jointly and severally in the amount of $20,312.11 together with continuing late charges in the amount of $25 per day together with reasonable attorneys fees and court costs, all of which is within the limits of arbitration as set forth by rules of court. Respectfully submitted, NICHOLAS & FOREMAN, P.C. BY: Bruce D. Forem , Atty ID No. 21193 4409 North Front Street Harrisburg, P A 1711 0 717-236-9391 Attorneys for Defendants Dated: 1"2- -/Z--()( 5 '~~,n;~]l_ill. ""'''''''' nO_'_"',"", _.,.;"'. ,-.,_~"_",.,,,,~,_, __" ,,__.,. ".'," ., ' . '-'~" ~ -- ,. -, ,.~ -- --~--. - ~ ,-- ~ :r-- ". '\ VERIFICATION I verify that the statements made in foregoing Complaint are true and correct to the best of my knowledge. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Northern Construction Associates Dated: ! 2,...- ('2.-0/ By:~L/c~ Michael E. Garman BY~~ 1 H 1. Grossman "'~1~!!!1~"1!:r , , , ,.. ~. "~?'" " -...,., 1'-' "" ~., ..,.,., I'lIIi" ~, -~ -^ Page 1 of? Construction Agreement This agreement made this 9th day of October, 2000, by and between, Esther Humphrey Lisa Hathcox Ella Jean Nichols, hereinafter referred to as the owner. AND Northern Construction Associates, a partnership existing under the laws of the Commonwealth of Permsylvania, having its principal place of business at 518 Bridge St., New Cumberland, P A 17070, hereinafter referred to as the Contractor. WITNESSETH, that the parties hereto, agree, as follows: 1. Price; Payment: The Owner agrees to pay the Contractor for the performance of the work herein set forth the sum of $285,840 as follows: Construction Draw Schedule Foundation - 15% Excavated, footers, foundation walls, and first floor deck Framing - 25% Studding, partitions framed, ceiling joists, rafters/trusses, roof sheathing, underlayment, sheathing, windows and exterior doors, structure secured. Rough-ins - 10% Rough wiring, rough plumbing and heating, insulation installed Exterior - 20% Masonry/siding, septic tank, drain/field/sewer, water supply connected Interior - 20% Drywall, doors, trim, cabinets and vanities, interior painting Final Draw - 10% Electrical and plumbing fixtures, floor coverings, appliances, ready for occupancy The Contractor is authorized to adjust the above schedule of payments in accordance with financing requirements of Owner's lender. Payment's are due no later /' than 15 business days after Contractor's request fur each draw, but subject to lenders draw inspection and approval. Owner will pay a late charge of $25 per day to Contractor for each additional day thereafter, until paid. frt,jYr$fi ! 'fi j 101 9/00 O'I?'~:-~, ,. . . .-~ '.' - ,~~ - .~n_ ~mll!R "..,,,,... _.~~ _.1""....."""" ~_~ ~.~~ Page 2 of7 2. Direct Payment by Lender: The parties hereto agree that all payments due the Contractor for work done and materials furnished shall be made directly to the Contractor by the Mortgagee, if any, without the joinder of the Owner and the Owner herein authorizes and directs the Mortgagee to make payments pursuant to the payment schedule directly to the Contractor. 3. Location: The Contractor shall erect and build a single family home on premise ofthe Owner situated or descn"bed as follows: Lot 22 Redwood Hills, Middlesex Township 4. Time for Completion: The work to be performed by the Contractor shall be substantially completed within 165 days of commencement of construction permitting the issuance of a certificate of occupancy, except as otherwise provided herein. 5. Plans Included in Agreement: The aforesaid building sbaIl be erected in substantial accordance with the final floor plans, specifications, worksheets, and purchase or change orders, which shall be duly executed and which are made a part of this Agreement and which are hereafter called "Agreement." Building elevation views are approximate and may not be built exactly to plan. Contractor shall furnish all materials and perform all the work as required to complete the building in accordance with this agreement, except that work and material to be performed and furnished by the Owner as provided herein. 6. Siting of Building; Excavation: The Contractor will at its own cost stake out the foundation on the Owner's lot using Contractor's judgment as to the house placement and elevation, coordinating with Owner on same. Contractor will excavate and erect the foundation, machine backfill the foundation with materials excavated upon the premises and complete the structure in accordance with the Agreement. Owner agrees, that in the event additional back-fill or topsoil is required by Owner, that it will be promptly supplied at Owner's cost. 7. Unusual Conditions: a.) In the event that the Contractor encounters any unusual conditiQns during the course of construction, such as solid or machine rock, quicksand, sinkholes, water, springs and the unusual condition requires any other work which, in the opinion of the Contractor is considered to be unusual, such as removal of rock by blasting or drilling or by their special excavation, or the installation of special footings, sub-base, foundation walls or drain tiles, the Contractor shall be compensated additionally by Owner for such work and materials provided at Contractor's usual rates and charges. It. Wf1i 4J 10/9/00 "';";"~,,1~"_ "C"" ,_, .'" , ,;!,'.'. '-." " ~, .," I ~. ': ,~..,.,.~~ __""""",MIl ,_~" ~ ~ .. ~, -. Page 3 of7 b.) Upon discovery of the unusual condition, Contractor shall promptly give Owner written notice thereof. Owner shall have the option of agreeing to Contractor perfonning the extra work or of terminating this Contract. Owner shall give lhe Contractor written notice of his election within ten (10) days of Owner's receipt of the Contractor's notice. If Owner elects to terminate this Agreement, Owner shall pay to the Contractor the actual cost of materials and labor perfonned and furnished by Contractor to the date of the Contractor's notice to the Owner, plus an additional twenty five (25%) percent. The Contractor shall apply any advances made by the Owner to such payment due from the Owner upon termination as aforesaid and shall refund the excess, if any. Upon termination as aforesaid, Owner does hereby remise and release Contractor from any claim whatsoever arising out of this Agreement. If the Owner fails to reply in writing with ten (10) days to the Contractor's notice, the Contractor, may, at its option, elect to treat this agreement as terminated and Owner shall be liable for the payments upon termination as set forth hereinabove. Contractor shall give Owner written notice of said election. c.) In the event that additional concrete is required for deeper footers than are herein provided because of site conditions, Owner hereby authorizes Contractor to supply and install the additional concrete and Owner agrees to compensate Contractor for the cost of such additional concrete. 8. Excused Delays: The Contractors shall not be liable for any delay in the prosecution or completion of the work caused by the act, neglect, defuult of the Owner, or as a result of changes or alterations in the plans and specifications made by the Owner, or by damage or fire, earthquake or other casualty fur which the Contractor is not responsible, or by strike, walk-outs or any other acts of employees or suppliers of labor or materials, over which the Contractors has no control or for which the Contractor is not responsible. In any such event the time herein fixed for the completion of the work shall be extended for a period equivalent to the time lost by any reason of any of the causes aforesaid. 9. Permits; Utilities: The Owner hereby authorizes and appoints Contractor to obtain at the Contractors expense, all necessary permits or authorizations from all municipal or governmental bureaus and departments or utilities which may be required fur the construction or occupancy of said dwelling house, and to that end, authorize the ,/ Contractor to execute their names to any applications for such permits or authorizations. The Owner shall provide and pay for electric, water, sewer and heating fuel or energy to be used during the course of construction. 10. Work by Owner: In the event that the Owner desires or may be required to provide labor and materials not included in this Agreement, he shall not do so without the prior written approval of the Contractor and shall do so only in such manner as to not delay the material progress of the Contractor's work. Owner further agrees to not /I'r. M/{(I r1t 101 9/00 ","'1'li~~,J,,,..,..,__,'_\.I: r"" "_0__"1 -,- ~",_,,"l!l~,~_~ i\ " "" "~~ ~-'" Page 4 of? interfere with the material progress of the work. In the event that the Owner does not promptly complete the work he is obligated to do hereunder, Contractor may complete same and Owner shall pay Contractor's cost plus twenty five (25%) percent. Should the Owner, in sole opinion of Contractor, interfere with the construction or fail to make scheduled payments when requested, Contractor may consider such failure a breach of this Agreement and that breach will excuse Contractor from further performance and Contractor shall receive all sums due hereunder, including profit lost. 11. Insurance; Risk of Loss: The Owner shall during the progress of the work maintain insurance on the same against loss or damage by fire, as well as insurance to protect the Contractor against any losses, claims, actions or suits either at law or equity for injury to persons or damages to property, the policies to cover all work incorporated in the building, and all materials fur the same in or about the premises, and to be made payable to the parties hereto, as their interest may appear. Owner does hereby agree to be responsible for any theft, malicious mischief and vandalism upon the structure during the course of said construction and upon all materials in or adjacent to the structure intended fur ~ thereon. Owner does further agree that the risk of loss of any work or materials performed or furnished under the terms of this Agreement through fire, vandalism, theft, malicious or any other hazard shall be upon Owner. 12. Stipulation Against Liens: Contemporaneously with the signing of this Agreement, the Contractor shall execute a proper stipulation against any and all mechanics' liens, which stipulation shall be recorded at the Prothonotary's Office prior to construction. 13. Additonal Costs; Code Compliance, Taxes: In the event that any municipal or gOVerrID1ental entity requires any item or tax not specifically included in this Agreement such cost shall be that of the Owner, including any and all survey(s) or finance inspection fees specified buy lender or govermnental agency. 14. Substitution of Materials: In the event that the Contractor is unable to obtain the exact materials specified on the plans and specifications or on the options attached hereto, tbrough the Contractor's ordinary and usual sources of supply, the ContractoT shall have the right to substitute materials of similar pattern, design and quality. 15. Owner's Warranties: Owner covenants, represents and warrants that he is the Owner of record of the aforesaid premises; that there is no unrecorded deeds; that the title is good, marketable and insurable by any reputable title company; that a perpetual right of way exists to the premises; that the said premises is free of any encumbrances, liens, easements, etc.; that there are no actions, cause of actions, or claims which might at a later date impair the title. The Owner shall, at his expense, forthwith remedy any breach or violation hereof which may exist or arise at any time. The Owner particularly understands and agrees that each covenant, representation, and warranty, herein In fA- tSffl w 10/ 9/00 )'''"''~f?'I'llil~_, J,,"'";" , ~"'~"",,""'"" . ,-, --- ~ I'" " >~ " ~ PageS of 7 contained, is severally of the essence of this Agreement and the breach or violation of any one shall excuse perfonnance by the Contractor. 16. Inspection; Occupancy; Contractor shall at any reasonable time pennit Owner to irISpect said construction and buildings but Owner shall not be entitled to keys or possession of the building prior to payment of all sums due under tbis Agreement. IN NO EVENT SHALL OWNER OCcupy OR TAKE POSSESSION BEFORE FINAL PAYMENT HAS BEEN MADE AND/OR THE CONSENT OF CONTRACTOR, WHICH CONSENT SHALL NOT BE UNREASONABLEY WITHHELD. CONTRACTORS CONSENT THALL BE IN WRITING AS PROVIDED ON TillS CONTRACT. IN THE EVENT OWNER BREACHES THIS PROVISION HE SHALL / BE DEEMED TO HAVE ACCEPTED THE HOME "AS IS" AND DOES THEREBY WAIVE ANY CLAIMS AGAINST CONTRACTOR. A breach of this provision by the Owner, shall be considered a breach of the contract by the Owner and shall entitle the Contractor to stop work or terminate this contract and recover from the Owner payment for all work executed and any loss sustained. 17. Entire Agreement; Changes: It is understood and agreed that the entire Agreement of the parties is contained in this Construction Agreement, plans and specifications. The parties warrant that there exists no other agreements, written or oral pertaining to this transaction. ANY OTHER WRITTEN AGREEMENTS REQUIRED BY A FINANCIAL INSTITIITION HEREAFTER SHALL BE SUPPLEMENTARY HERETO. No changes will be made in the plans and specifications unless a work-change order has been prepared in writing, signed by the Contractor and Owner, specifically stating the details of the change in construction and the additional cost thereof or credit to be allowed against the contract price of construction. Contractor reserves the right to refuse to approve changes wbich result in a substantial alteration of the plans and specifications. 18. Owner's Duty to Report Defects: Owner agrees to exercise reasonable diligence in ascertaining and reporting to Contractor, as work under this Agreement progresses, any defects, deviations or deficiency in performance or material. The failure of Owner to so ascertain and inform Contractor, shall be considered a waiver of any claim by Owner thereafter fur said defect, deficiency or deviation. Owner agrees, that any progress shall be deemed in full and complete acceptance of said work performed by Contractor up to the time of said payment, except fur those defects, deficiencies or deviations wbich Owner has advised Contractor of in writing as herein set fortli. 19. Notice of Completion; Final Inspection: a.) Except as set furth herein above, the dwelling shall be considered completed when it has been constructed in substantial conformance with the plans and specificatiorIS herein above mentioned, or if required, when a certificate of occupancy has been issued or when said dwelling house has passed final inspection by the municipal, borough or townsbip building irISpector, or lending institution. Upon completion of performance of this Agreement, Contractor shall within five (5) days thereafter, give Owner notice of said 1m I fIY!SfYi UJ 10/ 9/00 """';;L<i':;,~ST~~~,,,,~ ,,,,,_"' _ _ _." ","' . ~~p , ~l1! ~~"~- "~"-~ ~,-,--- ,- "_. Page 6 of7 completion and Owner shall thereafter, within five (5) days of said notice by Contractor, inspect the premises with a representative of Contractor and advise Contractor, in writing of any defects, deficiencies or deviations in material or labor. b.) Failure of Owner to: 1) Inspect; and 2) Give notice as aforesaid; and 3) Enumerate said defects, shall be deemed a waiver of any claim thereafter by Owner of said defect, deficiency or deviation and Owner does hereby release Contractor from any claim arising therefrom Said waiver shall not effect warranty providing all contract and change order payments have been paid. 20. Warranty; Procedure: See attached warranty documentatiorJ. 21. Unused Materials: It is understood and agreed that the Owner shall not be entitled to any substantial material, which has not been incorporated into the construction, except where he has specifically paid for such material under the special provisions of this Agreement relating to payment specifically of costs of materials included in allowance items. 22. Binding Effect: This Agreement shall be binding upon the parties, their heirs, executors, administrators, successors and assigns. 23. Agreement Not Assignable: Owner. This Agreement shall not be assigned by 24. Notices: All notices hereunder, to Contractor shall be sent to Contractor at 518 Bridge St., New Cumberland, PA 17070 or such other address as Contractor may by written notification advise Owner. Notice to Owner shall be sent to Owner at the address below, or such other address as Owner may by written notification advise Contractor. Owner Address: :<~ /1 (Jd~Lt / eod / ~YoI //J /11J13 IN WIlNESS WHEREOF, the parties hereto, intend to be legally bound hereby, have hereunder set their hands and seals the day and year first above written. ~/cp1 LN 101 9/00 ;';<!I~~l'!jrl:~",,~~ _~""",....... " - '.'-r,."" , '..0 _", ,.,. - ,= _!lI/I_~~I'l!"lIll," _,,_'._=_ .,.~ . ~~~" 1[""~" ,,~,~~ Page? of? . . WIlNESS AS TO OWNER: DATE: OWNER: ~A,k~~ - .'OJ./OO ~~ WIlNESS AS TO OWNER: DATE: OWNER: ~~~ lD\ ,,\ bD \A~ (SEAL) WIlNESS AS TO CONTRACTOR: DATE: CONTRACTOR: $bj..<~ fJ~ ,,(;i-P/?I1. ~TI~ (SEAL) CONTRACTORS CONSENT TO OCUPY WIlNESS AS TO OWNER: DATE: OWNER: (SEAL) WIlNESS AS TO CONTRACTOR: DATE: CONTRACTOR: (SEAL) TITLE 10f 9/00 ,-,''l:i1~,1l\'~_":.,,,., '> ' _" y ,"~",_, '-_'f """, . ,.~, ," ~ , eo> ,,~^",., '"'~ <,,,-,-,,,~-,,,," "~"'''~b'i>.,","", ~~~~O."-n Ifill",' . . (.J 0 c::; t? 'bQ.. c: (") '- r,; --t :>." C:J "'1 t --t ""1"", [f'-r;'" ; ~ 1 ---) jl :;2 ;:-. C') 11) 0 Q 9 U:"}'" .,.... G..) ........ G::, ~ , r ........ & ~ ',:' ~"'r' ~ 0J ';;C:' ( ~'" .... C> I'- " ---'---' -~ ~ J "';'- m ~ ~ ~ ~-. ) CJ lJ' 52 ~ ,<" ~ { 'i""!' ^,,~ J mI ' _ ~l.L'j;i ,_ 1>f:,~ i~'~I'I,:?:,l1m~'~ , ^,,_.~:,~'ffl'''~fi''''''-'':'''-'l\1''''''~>;''I'>-y!,,~;,-:,;I:I;'';~-::<<!'' -?"2iP,;"Wr,8~':\1-N~""'1c--l-'tw;~'fl\J"J:TIF'~",!-"',,--;r',q'e::'fj~.,WiVM',~;'ffirll!g!W-'; " t,.. SHERIFF'S RETURN - REGULAR .. CASE NO: 2001-07008 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GARMAN MICHAEL E ET AL VS HUMPHREY ESTHER ET AL CPL. MICHAEL BARRICK Sheriff or Deputy Sheriff of ..... ...... - Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon HUMPHREY ESTHER the , at 1444:00 HOURS, on the 19th day of December, 2001 DEFENDANT at 1208 REDWOOD HILLS CIRCLE CARLISLE, PA 17013 by handing to L,ISA HATHCOX, ROOMMATE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. ,... - Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 3.25 .00 10.00 .00 31.25 So Answers: :r'~~#~~ R. Thomas Kline 12/20/2001 NICHOLAS & Sworn and Subscribed to before me this fl:; day of ~ d-..,;.:2-> A.D. Q't~Q /uAII,.J ~ othonotary , By: '..... "-'!"""%;""'W".'1l-'~~~n~__,~_ .~_)!~'I'.~,.., r~Ill!lI'i!':"l'I."!<II<';\',~~\[(IlII"1~~"""""",~~'l"" ,'~ SHERIFF'S RETURN - REGULAR " CASE NO: 2001-07008 P '..... -- COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GARMAN MICHAEL E ET AL VS HUMPHREY ESTHER ET AL CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon HATHCOX LISA the , at 1444:00 HOURS, on the 19th day of December, 2001 DEFENDANT at 1208 REDWOOD HILLS CIRCLE - '..... ~'ARLISLE, PA 17013 LISA HATHCOX by handing to --- - a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 .00 .00 10.00 .00 16.00 ,,p.>", /.;>' """ /~ ~l" > <f'f.~/ c"'.f""" .....-::::/'", ? ~-"","~ /..Af:<~ R. Thomas K1ine- -"'" 12/20/2001 NICHOLAS & Sworn and Subscribed to before me this 8'~ day of _~ ,~l-(JV;L; A.D. _ q~,~()7u,eL) ~ P othonotary , By: Deputy Sheriff - -'J-~,;).j:c;,,~l!"'~!'!Il1~U~4~__ ..> - . ~ ~" r"_'J'~.'l1"'\9l!_'M_~I_'lIj"~""''''''''~_~_~~~'~ W'''''-V''!' 0' '","..I.,,,>." " SHERIFF'S RETURN - REGULAR ;lJ-. ...<.,. CASE NO: 2001- 07008 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GARMAN MICHAEL E ET AL VS HUMPHREY ESTHER ET AL Sheriff or Deputy Sheriff of ..... CPL. MICHAEL BARRICK ..- - Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon NICHOLS ELLA JEAN the , at 1444:00 HOURS, on the 19th day of December, 2001 DEFENDANT at 1208 REDWOOD HILLS CIRCLE .t::'ARLISLE, PA 17013 by handing to l,ISA HATHCOX, ROOMMATE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. - - Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 .00 .00 10.00 .00 16.00 ~,/ R. Thomas Kline 12/20/2001 NICHOLAS & Sworn and Subscribed to before IT.e this r;e.. day of ~"~'1 c200.h A.D. Qr 0. 'lh.d;~ Af~ rothQnotary' , By: ..... ..- ";-"',"0',",-.~~mJ~fl" >.,',,_, ,~ _ 0" _~ ~~"!-~~ _ ~ ''''''''''''--,.ffl~'_m~".''''''"_' ,,~ 'P"'''''-'~-- -; - ~,,-, -~""'l!IIII . , NUCHAELE.G~andHARRY L. GROSSMAN, d/b/a! NORTHERN CONSTRUCTION ASSOCIATES OF PENNSYLVANIA, a partnership, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 01-7008 ESTHER HUMPHREY, LISA HATHCOX and ELLA JEAN. NICHOLS, CIVIL ACTION-LAW Defendants NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED NEW MA ITER WITH COUNTERCLAIMS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEF AUL T JUDGMENT MAYBE ENTERED AGAINST YOu. ~~c:z -- / Stephen B. Lipson, Esq. Co-Counsel DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIMS 1.-2. Admitted. 3. Admitted in part and denied in part. It is admitted that Defendant Ella Jean Nichols did, on occasion, act as agent for the other two Defendants. However, it is denied that Defendants Humphrey and Hathcox had such authority to act on behalf of the other Defendants. The allegation that all liability is joint and several is a conclusion of law to which no response is required. 4. Admitted in part and denied in part. It is admitted that Defendants Nichols and Hathcox signed the Construction Agreement in question. It is denied that Defendant Humphrey signed the agreement, and no individual signed the agreement for her. - 'W'T':'~,,~~<,-,. .J_ o"'"fT'"."" ; . " ~ - ,"...-..l"--___ "',""'-,..-''''''''---- !~~< ,_w . , It is further denied that Exhibit A is a true and correct copy of the entire Agreement. Paragraph 20 of said agreement refers to "attached warranty documentation", yet Plaintiffs have not included this documentation with the Exhibit. 5. Denied. Interpretation of said agreement is a matter for the trier of fact in this case. Moreover, Plaintiffs and Defendants reached an oral agreement under which Plaintiffs consented to Defendants' taking of possession on or about April 26, 2001, thereby altering the written obligations referred to by Plaintiffs in this paragraph. 6. Denied, for the reasons stated in Defendants' answer to paragraph 5, supra. 7. Admitted. 8, Denied. Plaintiffs breached their contract with Defendants by failing both to (a.) repair/replace those items not consistent with specifications, thereby not completing construction, and (b.) repair those items not done in a workmanlike manner. Defendants will be forced to spend an amount in excess of $14,512.11 to correct these deficiencies, and thus Defendants are not liable to Plaintiffs for any additional monies. 9. Denied. Interpretation of said Agreement is a matter for the trier of fact in this case. Moreover, because Defendants owe no money to PlaintiffS no late charges are due and owing to Plaintiffs. This late charge provision is not enforceable for reasons discussed in paragraph 11 of Defendants' New Matter, infra. 10, Denied, for the reasons stated in Defendants' answer to paragraph 9, supra. WHEREFORE, Defendants request that this honorable court dismiss Plaintiffs' Complaint and enter judgment in their favor. Note that Plaintiffs have cited no authority for their demand for attorneys fees and that same therefore cannot be awarded to them. NEW MATTER 11. The late payment charge of $25.00 per day is a penalty and thus is not enforceable as liquidated damages. For example, said daily amount would total $9,125.00 over the course of one year, or almost 63% of the principal amount. Obviously, this amount is not a reasonable estimate of Plaintiffs' damages. 12. Plaintiffs substantially breached the contract at issue by failing/refusing to complete construction within 165 days of October 10, 2000, the date that construction commenced. Defendants sustained damages as a result of said breach, including, but not limited to, having to ",,~', )'I!.>~ . " ~~':~" , . . I ". - ,~ - ~ ,~n _ """""'.~.! _~ --." - '" ,'V~ _ _ _0_ e'., ~~." _ & "lease back" their prior residence from the individuals who purchased same from them in the late winter/early spring of2001. 13. By negotiations beginning in early March of2001, Defendants agreed to give Plaintiffs additional time to complete construction in exchange for Defendants being allowed to take possession prior to completion. Plaintiffs orally consented to said modification of paragraph 16 of the contract and gave the keys to Defendants. 14. This oral modification of the contract was for good and valuable consideration and is binding upon Plaintiffs and Defendants in spite of the language in the contract requiring that such consent be in writing. See Universal Builders, Inc. v. Moon Motor Lodge, Inc., 430 Pa. 550 (1968) and Fina v. Fina, 737 A.2d 760, Pa.Super. (1999). 15. Plaintiffs are estopped from enforcing paragraph 16 to the detriment of Defendants and/or have waived enforcement of same. 16. Plaintiffs did not build the home consistent with the specifications and change orders; therefore, Plaintiffs did not complete construction and are not entitled to a final draw, COUNTERCLAIM I - CLAIM OF DEFENDANT HUMPHREY 17. The allegations contained in paragraph 1 through 16, supra, are incorporated herein and made a part hereof as if more fully set forth. 18, Defendant Humphrey did not sign the Construction Agreement in question, nor did anyone sign same as her agent. In addition, contrary to the designation of her in said contract as an "owner", she had no ownership in the premises at that time or during construction. See deed book 228, page 613, for the recorded deed from Plaintiffs to Defendants Hathcox and Nichols. 19. Plaintiffs acted arbitrarily and in bad faith in instituting this litigation against the Defendant Humphrey in as much as there is no theory of liability in their Complaint remotely applicable to her. Therefore, Defendant Humphrey is entitled to her proportional share of attorneys fees to date from Plaintiff, as well as additional fees in the future as the litigation is continued against her. WHEREFORE, Defendant Humphrey requests that this honorable court dismiss Plaintiffs' Complaint and enter judgment in her favor and against Plaintiffs for attorneys fees and costs. "-::"-W~~_,., '" ~, ,- --, 1PIl'l_ " <. ~~"- . ~ c_,~" Jl COUNTERCLAIM II - CLAIM OF ALL DEFENDANTS 20, The allegations contained in paragraph 1 through 16, supra, are incorporated herein and made a part hereof as if more fully set forth. 21. Commencing in the winter/spring of2001, Defendants informed Plaintiffs on numerous occasions of the items that had to be repaired/replaced in order for Plaintiffs to have completed construction in accordance with specifications and change orders. In fact, in July of 200 I, Plaintiffs requested a list of said deficiencies and Defendant Nichols provided same to Plaintiff Garman, who said that either he would complete same or allow Defendants to use the remaining money to pay for the services of another contractor to perform the work. This is one of several lists of deficiencies which was provided to Plaintiffs with the last list being one dated November 9,2001, a copy of which is attached hereto and incorporated herein as Defendant's Exhibit A. Note that Defendants' offer to take care of some of the items on this list was predicated upon Plaintiffs' agreement to allow Defendants to keep the balance of the monies to pay for the work. 22, Plaintiffs did not complete this work and thus Defendants have been forced to hire another contractor to do the work. The November 9th list is not a complete list of the existing deficiencies, but it does contain most of them known to date. One additional major item yet to be addressed is the condition of the basement floor, which is developing large, open cracks in the concrete. The nature of the work, and cost of same, necessary to correct this defect has not been determined at this time. 23. The cost of repairs/replacement of all items in breach of Plaintiffs' contractual obligations will exceed the dollar amount being sought by Plaintiff. Therefore, Plaintiffs are indebted to Defendants for the extra amount, which is not a definite, final figure at this time. 24, Although Defendants do not possess a copy of the warranty documents that were a part of the construction contract with Plaintiffs, Plaintiffs' failure to make necessary repairs is a breach of the warranty provision. See 73 P.S. Section 201-2(4)(xiv). Defendants are entitled to their attorneys fees, as well as triple damages under Section 201-9.2 of the Unfair Trade Practices Law as a result of Plaintiffs failure to honor its warranty. WHEREFORE, Defendants demand judgment in their favor and against Plaintiffs for all damages, including the $14,512.11 not paid to Plaintiffs, as well as additional damages the amount of which is unliquidated at present, together with triple damages and attorneys fees. -%~!~~ ' "~=.- ^ '7"- - ~.,.,..,.." i '" .._~ ~~----- ,~"= c ;6"'~M , ~ """,;!!Ilt~~~ ,w Respectfully submitted, ,~5~ Stephen B. Lipson Co-Counsel for the Defendants ID No. 19453 61 W. Louther St. Carlisle, PA 17013 Stephanie E. Chertok Co-Counsel for the Defendants IDNo.52651 61 W. Louther St. Carlisle, P A 17013 r~ ~-, ~1I\ffiR""'"'__""""~ 'ii'!!!rE it"'"' = U_& . ,~~ ""~- . ' VERIFICATION I, Ella Jean Nichols, verify that the statements made in the foregoing document are true and correct to the best of my knowledge. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. section 4904 relating to unsworn falsification to authorities. Date: 1/~,jfc?t1,;2- , ~~~~ Ella JeanA<Jichols .;Jj.,~,~;,~- - ~~~ ",- .. ,-'~ - ^l --~-"'---~,~" :,~ MICHAEL E. GARMAN and HARRY L. GROSSMAN, d/b/a! NORTHERN CONSTRUCTION ASSOCIATES OF PENNSYLVANIA, a partnership, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 01-7008 ESTHER HUMPHREY, LISA HATHCOX and ELLA JEAN NICHOLS, CIVIL ACTION-LAW Defendants CERTIFICATE OF SERVICE I, Stephen B. Lipson, co-counsel for the Plaintiffs, do hereby certify that a copy of the Defendants' Answer with New Matter and Counterclaims was served this /I~y of :J;kU/~ ,2002, by first-class, U.S. mail upon those listed below: / Bruce D. Foreman, Esq. Attorney for Plaintiffs 4409 North Front St. Harrisburg, PA 17110 ~~~ Stephen B. Lipson Co-Counsel for Defendants '-'~W~.lf~"~,_ ~. c., ,~ ,-' , , ~ " "_ _, ~~"_d""~,.il';~___ "l. , won NOT YET SATISFACTORY AT 1208 REDWOOD BILLS CARLISLE, PA . 9 NOVEMBER 2001 PREVIOUSLY IDENTIFIED PRIOR TO OCCUPANCY (STILL NOT RESOLVED): KITCHEN: HOLF. FOR PIPE JNDER WET BAR NOT COVERED PAN'fRY SHF:T.VES NOT INSTALJ,ED TO CUSTOMER'S WISHES "SCRATCHES ON HARDWOOLJ FLOORS *FRONT STAIRS: W~RE TO HAVE OAK TREADS SECOND FLOOR: CLOSS'l' :JOORS MISALIGNED ~~SEMENT: *CRACKS IN CONCRSTF.. FLOO~ NOT PROPER~Y TREA7ED OR SEALED *LSAKING AROUND DOORS (JETERMINED TO BE CAUSED 2Y ~HE S~OPE 02 THE PATIO SLANTED TOWARDS HOUSE) (WILL RF:SOLVE SELF) CONCRETE AT FRENCH DOORS WAS NEVER SMOOTHED OUT OR ?INISBED. DECKS: RAILING ~N ~IDDLE 0: WI~DUW (THIS WAS SFECIFI:AL1Y DISCllSSED PRIO? TO Ai:'POV:NC THIS CONSTRUCTION AS OPPO:3l:,L) TO ':';;E; CONCRE'l'E PATIO THA':' HAS SUPPOSED TO 9E tNSTAT,LED. CUSTot~J::?, Wl'.S TOLD ':'HAT TEE !l.AILING 110ULD NOT BE IN TUE rVlJDLlLE 0[" T"r. WINDG'/) ANe THAT THE UPPER PART O!:' TEE LOWER DECK WOULD BE r.ANTILEVSP.ED TO ENSURE THA'r I':' NAG ;.0'1'.) v;OOD US};;;:) NOT vlF,ATE8R TREA7.ED (KILN DRIED 3l;T NOT WEATHER TREATED, A~READY WARPING) LAT':'ICE USE IS OF ~XTREKE1Y POOR QUALITY C2PEi'( DECK Wl\S o,,:GINAL;,y ORDERE;D A:3 '~'H':;;X OR ?:QUIVi".1SNT, :,OT "oor: I I I I I FRONT "EP...ACED. INS':'ALi.>l::D. DOOR: NOT COMP:"ETE UNI'r' (?) - MF.:':'AL TTiP":SHOl,D TO "E WAS A "TEV-PORARY DOOR" ?ER DERRICK WHEN ':T \VAS NOT DoeR SELECTE~ a~ CUSTOMER. STEPS IN GARAG~ - WERE TOLC TH~SE W~HE TEMPORARY AND worLD BE RE?LACED WITE ~aEALH STAIRS. *SECOND SET OF STAIRS NOT INS'l'A!.LF.J AS INSTRDCTED BY CUS'IOi'lER. CUS'.!'OMER HAS REINSTALLED '1'0 OWN SPECIFICATION. ~Gft~AGE FLOOR CRACKED PORCH HALLING - LOWER RAIL NO~ PRO~ERLY TNSTAL~ED/CUT. FRONT PORCH - CON~RETE PORCH DOES NOT S1U~E AWAY F~O~ HOOSE. WA'I'ER PUDDLES ON PORCH (NOW CONCRETE IS CRACKING) ~T::: ;::-:::, ::",:: ::::>;::;:-::::':' .;': >~-.;:;:':: :"~:: .;.' ;:~:::':'~'~: :;;-.=::-::: ..,.:...... :::_;'<~:',::'.: ":";""':, ":':"':.// .,;,,';0::::," .;',' :':"::':~:~.::';:~:':';_-"'" ":: ":.;.;., ~ ....;.:~:,;y:.::...:.>....::.;.,.:-;._.<' :.:.: '.;'-:". .: j:' . 'Ji '1-,<>. /'-L /. p" .'. 'C,/;i)/.... jIeF'--'~~7' ?--X"", rr:'." .' -...'....... . ,"' '>"..,<.;.'.- tY~'~~ ..1 ~, , -\ ..~~. -U.1~ _., ~ .~".l .~'_~.~. ~".,.,,~"'" SCREEN ;n.T WINDOW ON FRONT OF HOUSE NOT TUE RIGHT CONTRACTOR US&D EXPANDnBLE FOnM AROUND WINDOW FRAMES WHICH COULD VOID WARRANTY ACCORDING TO MANUFACTURER'S SPECIFICATIONS *F:REP~.C~ INSERT NO~ THE ONE SELECTED BY CUSTOM~R. CUSTOMER NOT CONSULTED ON FIREPI,ACJ:: E'ACE (CUSTOMER HAS CON'l'AACTED 'fiITH ANOTHER TO CORIlECT - AT OWN EXPENSE) *DINING ROOM BUITll'-IN N01' RlJILT TO SPECIFICA'fICNS. AFTsn ATTEMPTS BY BUILDER TO CORRECT, CUSTOMER HAS CONTRACTED WITH ANOtHER TO CORRECT - AT OWN EXPENSE. *ALL ~HUT OF? VALVES WER8 TO BE ACCESSIBL~ AND MARKED. HAVE ~IAD THE ACCESSIBLE ONES MAttKS!). NOT ALTJ ARE ACCESSIBLE, CONCRETE AROUND CONCRETE BLOCKS TN GARAGE HAD DISINTEGRA1'ED ADDITIONAl... ITEMS THAT HAVE BEEN IDEN'fIF"IED Sn:CE OCCUPANCY *SLOPE OF SUNROOI~ ROOF Mll.Y BE: '1'00 S!1l\LLOW (T':' IS HOi'<JES.1INc: D~PENDING ON THE BUILD:NG CODES) AND ROOF:NG MATERIALS MAY NOT BE GUARANTEED B~CAUSE OF T~ - DEPENDS ON TH~ MANUF~CTURER. 'INTERIOR STl\IR SUl'POR':'S WI1'!HN TEE BASEMENT IvERE NO'l' P~G!>':B ~'l'HE SEALS 0:\1 AT L~AS'i' ONE OF THF, WINDOVIS l\RE DHR:::TIVl::. HAVE TALKED TO THE ~~NUFACTURER AND THEY ARF. WARRANTEED. NEED TO KNOW WHERE TIlEY WSRE PURCHASED_ HAVE ASKED FOR THIS INFO~~,TION BOT IT HAS NO~ BEEN PROVIDED. ClJSTO~ER WILL HAVE \'iAR.'1NTEED ~IINDOW RSt:'I,/>'CED BUT DOF.S NEED TO KNOW viHSRE :T WAS PUHC~P.,SED . E?<!ERGENCY REPAB REQUIRED FOR WA~ER SYSTEM WHEN NO WA':'ER WAS AVAILABLE FROM THE WELl,. BILL ?ROVIDED TO MIKB Gf\RMAN (SHOUI,D NOT HAVE 13E::N BILI,ElJ ANYWAYS - NOT TN HOUSE 6 MON"i'HS, INST1\LLED 6 MOI\'THS AND 2 DAYS BEFORE) CONTINUED TO ~~VF. r,;n.S SMELL IN FIREPLACE AFTSR REPAIRED (IDENTIFIED PRIOR TO ~OVING IN). GAS COlvlPANY DT!':COVERED A LEAK AND 'rURNED IT OFF. MCCLURE REPAIRED. *DOWNSPOUT RVNOUTS WERE NOT PROPERLY INSTALLED. CUSTOMER IS WORKlNG W!TH LANDSCAPER. *F.XTREMELY POOR GRP.DING, 'rapson, AND GRADE OF GF.ASS OSED. CUSTOMER WORKING WI'l'H LAN::JSCApF.R. I , -- ---- , - - - - - - ~--- . "WOOPWORK USED FOR BM;;;BOARDS TliROUGHOCT THE HOUSE IS NOT WOOD, BUT A COMPOSITE - NOT GOOD QUAI.ITY. "'QUARTER ROUND MOLDING ~r B~SEBOARD INSTALLBD BACKWARDS - SHOULD BE INSTALLED WITH SHORT SIDE TO FLOOR. "'SELECTED DOORS NOT HUNG PROPERLY ~CLOSET RODS IN FRONT FIRST FLOOK BEDROOM NOT INSTALLED TO CUSTO~ER'S REQUIREMENTS *WASHER AND DRYER NOT INSTALLED TO CUSTOMER'S SI?ECIFICATIONS WITHIN THE :,AUNDRY AREA ON SECOND :'LOO" (NEED 7RE NAMES OF SUBCON':'RACTORS THAT GUARANT;:;E TIlSIR O~IN WORK OR PROD:JC'l'S) '\HLL LIVE ~JITH/OR TAKE CARE OF PLEASE NOTE; THE ONLY EM?:'OYEE OF NCR'l'H:::R:-J CONSTRUC'l'ION NOT WELCOME BACK TO COMPLETE WORK IS DRIAN WHO SWORE AT MY MOTH~r. APPAREN"!'T,y HE IS NO LONGER EMPLOYED BY NOR':'HE'RN. :,:""'-;'~,-::':"'::t::;:::;:;..",:-~""-':' .:-,-,",.* . ~~~" _,~" .>"'1.<" ,- ", "' - "'~;f' ., ""~ '"" .~"' <0". 'e;--,,'-,-""'_'="""'-''''*,,",,"'.__ '_ ~,_~ o c: ? Qjtjj 4<-... ; ~;':C crl, -< ~f~ 2~ =< c.::~ f--.J. """ ::1:: -'7" C) ~~~n! \D -,-~ ~~ ---< !'Il!l'II'!!' 1_~~~~, ,,"EiJ&.~<, ^"~ ~~~~..~~_~_~t Jil!JI"" }~I~' COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL E. GARMAN and HARRY L, GROSSMAN, trading and doing business as NORTHERN CONSTRUCTION ASSOCIATES OF PENNSYLVANIA, a partnership Plaintiffs Civil Term No. 01-7008 V5, ESTHER HUMPHREY, LISA HATHCOX and ELLA JEAN NICHOLS, jointly and severally, Defendants Civil Action - Law PLAINTIFF'S ANSWER TO NEW MATTER AND COUNTER-CLAIM 11, To the extent that Paragraph 11 of Defendant's New Matter is not a legal conclusion and requires response, the same is denied and, if relevant, strict proof thereof is demanded at trial. 12, To the extent that Paragraph 12 of Defendant's New Matter is not a legal conclusion and requires response, the same is denied and, if relevant, strict proof thereof is demanded at trial. By way of further answer, after reasonable investigation, Plaintiffs lack the knowledge necessary to make a determination as to the truth or the falsity of the factual averments of Paragraph 12 of Plaintiffs New Matter and accordingly, if relevant, the same is denied and strict proof thereof is demanded at trial. 13, Denied; the averments of Paragraph 13 of Defendant's New Matter are denied and, if relevant, strict proof thereof is demanded at trial. .~~'"." C'--''''''-~-'-O\.'_J'''_'__' ,- ,-";"".-"-, , ,'l.p- '" ---,-' -". ,.. 14. To the extent that Paragraph 14 of Defendant's New Matter is not a legal conclusion and requires response, the same is denied and, if relevant, strict proof thereof is demMded at trial. 15, To the extent that Paragraph 15 of the Defendant's New Matter is not a legal conclusion and requires response, the saine is denied Md, if relevant, strict proof thereof is demanded at trial. 16. To the extent that Paragraph 16 of the Defendant's New Matter is not a legal conclusion and requires response, the same is denied Md, if relevant, strict proof thereof is demanded at trial. By way of further response, aU factual averments of Paragraph 16 of Defendant's New Matter are denied and, if relevant, strict proof thereof is demMded at trial. ANSWER TO COUNTER-CLAIM I 17, The allegations of Plaintiffs Complaint and Plaintiffs Answers to New Matter, Paragraphs I through 16, are incorporated herein as if fuUy set forth. 18. To the extent that Paragraph 18 of Defendant Humphrey's Counter-Claim is not a legal conclusion and requires response, the same is denied and, if relevant, strict proof thereof is demanded at trial. 19, To the extent that Paragraph 19 of Defendant Humphrey's Counter-Claim is not a legal conclusion and requires response, the same is denied and, if relevant, strict proof thereof is demanded at trial. 2 "~~~r"J__.,C!,fo'".'!h~-~_'!""'!,"!'7l!"'~} . - '~'7~- . -'. ,_'~ '- ;, ,..e,,",,'_ - _' '_" _'"" , , ,~, ~IT ,,~, , .,~ " " ~. ANSWER TO COUNTER-CLAIM II 20. The allegations of Plaintiff's Complaint, Plaintiff's Answers to New Matter and Plaintiff s Response to Counter-Claim I, Paragraphs 1 through 19, are incorporated herein as if fully set forth. 21, Denied as stated; it is admitted that Defendants did request certain work from Plaintiffs, some of which was done, however, it is denied that the same was done on numerous occasions or that Plaintiffs were advised that the same was necessary to complete construction. The remainder of the averments of Paragraph 21 of Defendant's Counter-Claim are denied and, if relevant, strict proof thereof is demanded at trial. 22, To the extent that Paragraph 22 of Defendant's Counter-Claim is not a legal conclusion and requires a response, the same is denied and, if relevant, strict proof thereof is demanded at trial. 23. To the extent that Paragraph 23 of Defendant's Counter-Claim is not a legal conclusion and requires a response, the same is denied and, if relevant, strict proof thereof is demanded at trial. 24. To the extent that Paragraph 24 of Defendant's Counter-Claim is not a legal conclusion and requires a response, the same is denied and, if relevant, strict proof thereof is demanded at trial. 3 -~~~,,~ ~"-" ""'1-~.",' "C'-_,~,- t.-" .;,' - , ',-",,-''C'. ,',.0, "',__, ''1--- ,_',' ',.;co-' ,-,. ~ ~ WHEREFORE, Plaintiff request that damages be awarded as set forth in Plaintiffs Complaint and that Defendant's Counter-Claims be dismissed. Respectfully submitted, NICHOLAS & FOREMAN, P,C. BY: ....r--- ruce D, oreman, Atty ID No. 21193 4409 North Front Street Harrisburg,PA 17110 717-236-9391 Attorneys for Defendants Dated: I, /1. 0 z.- 4 \-9~~~"':' <__;".. t, --- '.n. .' " _ "'c. _ ~__ ., _ _ .' . . ,__o.~. > _ ,.".. ....~ 1f. '" VERIFICATION I verifY that the statements made in foregoing Complaint are true and correct to the best of my knowledge. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Northern Construction Associates Dated: / /;td~ By: ~,-.(~_ / Michael . Garman By: Harry L. Grossman 5 ~~~^',. ,,-.~;c ,~,~" '!"'" ~-',"- -'. 'r', ~'_,"'1 ~ ~ tt v COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL E, GARMAN and HARRY L. GROSSMAN, trading and doing business as NORTHERN CONSTRUCTION ASSOCIATES OF PENNSYLVANIA, a partnership Plaintiffs Civil Term No. 01-7008 vs, ESTHER HUMPHREY, LISA HATHCOX and ELLA JEAN NICHOLS, jointly and severally, Defendants Civil Action - Law CERTIFICATE OF SERVICE I, Bruce D. Foreman, Esquire, do hereby certifY that on this, thet11!lday of January 2002, I served a true and correct copy of the Plaintiff's Answer to New Matter and Counter-Claims, by first class, postage paid mail: Stephen B. Lipson, Esquire 61 W. Louther Street Carlisle, PA 17013 NICHOLAS & FOREMAN, P.C. Bylta ~~ kJ\Q.JV\i\.W\\ ~ Bruce . Foreman, EsqUire Atty. ID #21193 4409 North Front Street Harrisburg, PA 17110-1709 (717) 236-9391 Attorneys for Plaintiff 6 C(':'IK~li%._"" "~""'__'~""~__"__ .,',~~ ,~". '_'''-'", -'~',.' --' ,'-'.' n ~ "' .. .~= ;p;f f,,", " '~.H_""<C'''"I.~^, lJJ !.)J~'.flJ..~_ ~-- - ,_~_o ,,~_~ 'h.' ,,- ;:gVr1 z (~~, -' , ~~~'- ~~~1 :j , '". ~, - o r:~ "_.. ,.~,,~~ lIT ~ 'riM d --....; 0.... :-~.J _ .'\1"'" '.~.,,:r~,,"4. 1,_''-M:%iW~'ijf;''Wlf,{W'if''''"1'~'"'-%'W'''''f<~ifg'!j;1lifl'~~'~-'t~1~)i"w~M~'Th:)Ij-'H"'l'l~~W!R~~,~~~tW"I'~': r ,~-- ~-"" MICHAEL E. GARMAN and HARRY 1. GROSSMAN, trading and Doing business as NORTIIERN CONSTRUCTION ASSOCIATES OF PENNSYLVANIA, a Partnership, Plaintiffs vs. ESTHER HUMPREY, LISA HA THCOX And ELLA JEAN NICHOLS, jointly and Severally, Defendants TO THE PROTHONOTARY: * COURT OF COMMON PLEAS * CUMBERLAND COUNTY, PENNSYLVANIA * * * * No. 01-7008 * * * * Civil Action - Law * * * PRAECIPE On behalf of the Plaintiffs and Defendants, please withdraw the above-captioned claim and counterclaims and mark the case settled, ~ and withdrawn, with prejudice, against both Plaintiffs and Defendants. P- ''''-~,'-'0~."" ,,__,~ e, ",,",'_'" . _ t,O,-' _ B : Bruce D. Fore , 4409 North Front Street Harrisburg, P A 1711 0-1709 ESTIIER HUMPREY, LISA HA THCOX And ELLA JEAN NICHOLS, jointly and severally, by their attorney y: St phanie Chertok, Esquire 61 West Louther Street / Carlisle, PA 17013-2936 , --r,_ - _ c, .' , ,.oor<," ~_~ ill;, -, .".~" . -~ ,"",'7 ~, ", ~""i' I ' - .~''''-~, <" H,~' _,. 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