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Home My WebLink About03-2806 JOHN HAMMELBACHER and JENNIFER HAMMELBACHER, Plaintiffs, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY : PENNSYLVANIA VS. CIVIL DOCKET NO.: 02-4921 VINCENT D, MELLOTT and B-H AGENCY REALTORS, Defendants. o..J ~ ;J.. 'i, () 6 : JURY TRIAL DEMANDED COMPLAINT AND NOW, this Sixteenth day of June 2003, comes the plaintiffs, John Hammelbacher and Jennifer Hammelbacher by and through John A. Abom, Esquire of ABOM & KUTULAKlS, L.L.P., and file this Complaint against the defendants, Vincent D, Mellott and B-H Agency Realtors as follows: I. Plaintiffs, John and Jennifer Hammelbacher, live at 1005 Doubling Gap Road, Newville, Cumberland County, Pennsylvania. 2. Defendant Vincent D, Mellott's ("Mellott") employer is B-H Agency Realtors, ("B-H Realtors"), a business operating in the Commonwealth of Pennsylvania with offices at 163 North Hanover Street, Carlisle, Cumberland County, Pennsylvania and 51 Big Spring Avenue, Newville, Cumberland County, Pennsylvania. 3, Defendant Vincent D, Mellott is employed as a real estate broker with B-H Realtors and resides at 6 Meadow Lane, Newville, Cumberland County, Pennsylvania. 4, Defendant B-H Realtors are responsible for the actions of Defendant Mellott through the doctrine of Respondeat Superior. 5, In March of2000 Plaintiffs became interested in purchasing the property located at 1005 Doubling Gap Road, Newville, Cumberland County, Pennsylvania ("subject property"), 6, The selling agency for the subject property was B-H Realtors, 7. The selling agent for the subject property was Vincent D. Mellott, 8, In late March of2000, Plaintiffs asked Mellott and he accepted to act as a buyers' agent on Plaintiffs' behalf due to concerns Plaintiffs had regarding observations of what appeared to be defects in the subject property. 9, Plaintiffs and Mellott reduced to writing their buyers' agency agreement, the original of which remains under the control of Mellott, 10, After retaining Mellott's services as a buyers' agent, Plaintiffs expressed their concerns to Mellott regarding observations made at the subject property, II. Plaintiffs inquired into the feasibility of a second floor considering the observations in the subject property, particularly in the basement/foundation walls. 12, Mellott hired Gregory Lebo of Brehm-Lebo Engineering ("Lebo") to inspect the structural condition of the subject property. 13. On or about March 25,2002, Lebo met with Mellott to observe the structural condition of the subject property, See, Engineer's Report attached as Exhibit B. 14, When Lebo met with Mellott on or about March 25, 2002, to observe the structural condition of the subject property, Lebo made comments to Mellott about the structural problems and corrective measures that should be taken in the subject property. 15. The engineer's report (Exhibit B) was completed on March 28, 2000, 16. A copy of the engineer's report was sent to Mellott via facsimile on or about March 28, 2000. 17. The engineer's report found the following: 2 a. Noticeable movement and horizontal cracks halfWay up the rear wall (north side) and the right wall (east side), b, One inch of inward movement in the north wall. c, One half inch of inward movement in the east wall. d, Inadequate final grading caused the inward movement by allowing water to cumulate along the house, leading to a build up of extensive hydrostatic pressure between the basement/foundation walls, 18. The engineer's report recommended the following corrective measures to secure the walls for the rest of the life of the structure: a. A swale should be graded around the north and east sides of the subject property to divert water away from the subject property, b. The top four (4) feet of soil along the north and east walls should be excavated and backfilled with 2B stones. c, The north and east walls should be pushed back into a vertical position during the excavation process. d, Three (3) plasters should be built along the north wall and one (I) along the east wall. e, Installation of weep holes in the north and east walls and a footing drain tied into a sump pit. 19, The engineer's report did not opine that the foundation was suitable to accept a second floor. 20, Mellott failed to provide to Plaintiffs a copy of the engineer's report prior to their signing of the buyer's agreement. 3 21, Mellott failed to accurately explain the contents of the engineer's report to Plaintiffs prior to their signing of the buyer's agreement. 22, Mellott did not memorize in writing to the Plaintiffs the contents of the engineering report, 23. Plaintiffs agreed to purchase the subject property at a price that was within $2,500 of the seller's original asking price, 24, Mellott verbally misrepresented the contents of the engineer's report to the Plaintiffs, 25. Mellott verbally represented to Plaintiffs that the structure of subject property would not worsen, 26, Mellott possessed knowledge that the Engineer's Report contained information of a defect at the subject property. 27, The knowledge Mellott possessed about a material defect at the subject property would have prevented the Plaintiffs from purchasing the subject property at the original purchase price. 28, In reliance upon Mellott's verbal misrepresentations, Plaintiffs did not request a reduced purchase price to reflect the true extent of the defects, 29, In reliance upon Mellott's verbal misrepresentations, Plaintiffs purchased the subject property under an assumption they could make a second story addition to the home. 30, In reliance upon Mellott's verbal misrepresentations, Plaintiffs purchased the subject property under an assumption that the structure of the subject property would not worsen, 4 31, In reliance upon Mellott's verbal misrepresentations, Plaintiffs proceeded to settlement and purchased the subject property on August 31, 2000, 32, Since August 31, 2000 the defects included in the Engineer's Report have continually worsened. COUNT! INTENTIONAL MISREPRESENTATION (FRAUD) 33, Paragraphs one (I) through thirty-two (32) are incorporated herein as if fully set forth, 34, The elements of intentional misrepresentation are: a representation must be made which is material to the transaction at hand, the representation must be made falsely with knowledge of its falsity or recklessness as to whether it is true or false, the representation must be made with intent of misleading another into relying on it, the plaintiff must justifiably rely on the misrepresentation, and the resulting injury must be proximately caused by reliance, Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999). 35. Mellott made representations to Plaintiffs regarding the structural soundness of the said property, 36, Mellott's representations were material to the transaction of Plaintiffs purchasing the subject property. 37, Mellott's representations were made falsely with either knowledge of its falsity or recklessness as to whether it is true or false, 38, Mellott made said representations with the intent of misleading the Plaintiffs into relying on his representations, 39. Plaintiffs justifiably relied on Mellott's misrepresentation. 5 -------..,.",.."_._--_._-~_.,_."... 40. The Plaintiffs' injury was proximately caused by their reliance on Mellott's representations. WHEREFORE, based upon the Defendants' intentional misrepresentation, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, interests and cost of prosecution in excess of $25,000, COUNT 2 NEGLIGENT MISREPRESENTATION 41. Paragraphs one (I) through forty C 40) are incorporated herein as if fully set forth, 42, The elements of negligent misrepresentation are: a misrepresentation of a material fact, made under circumstances in which the misrepresenter ought to know its falsity, with an intent to induce another to act on it, and which results in injury to a party acting in justifiable reliance on the misrepresentation, Heritage Survevors & Eng'r. Inc" 801 A.2d 1248, 1252 CPa, Super, Ct. 2002).' 43. Defendant Mellott made representations to Plaintiffs regarding the structural soundness of the subject property, 44, Mellott's representations were material to the transaction of Plaintiffs purchasing the subject property. 45. Mellott's representation was made under circumstances in which he ought to have known its falsity, 46, Mellott made the misrepresentations with an intent to induce Plaintiffs to act and/or rely on his representations, 6 47. Mellott's misrepresentations to Plaintiffs resulted in Plaintiffs' injury. 48, Plaintiffs justifiably relied on Mellott's misrepresentation, WHEREFORE, based upon the Defendants' negligent misrepresentation, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, interest, restitution, attorney fees, and costs of prosecution in excess of $25,000, COUNT 3 INTENTIONAL NONDISCLOSURE 49, Paragraphs one (I) through forty-eight (48) are incorporated herein as if fully set forth. 50, The elements of intentional nondisclosure are: the defendant must conceal a material fact, the representations must be made falsely with either knowledge of its falsity or recklessness as to whether it is true or false, the representations must be made with the intent of misleading one to rely on it, plaintiff must justifiably rely on the misrepresentations, plaintiff's injury must be proximately caused by reliance on the defendant's representations, Bortz v, Noon, 729 A,2d at 561. 51. Mellott concealed a material fact from the Plaintiffs regarding the structure of the subject property, 52. Mellott's representations were made falsely with either knowledge of its falsity or recklessness as to whether it is true or false. 53. Mellott's representations were made with the intent of misleading Plaintiffs to rely on his representations, 54. Plaintiffs justifiably relied on Mellott's misrepresentations, 7 55, Plaintiffs' injury was proximately caused by their reliance on Mellott's representations, WHEREFORE, based upon the Defendants' intentional nondisclosure, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, interest, and costs of prosecution in excess of $25,000, COUNT 4 BREACH OF FIDUCIARY DUTY 56, Paragraphs one (1) through fifty-five (55) are incorporated herein as iffully set forth, 57, A fiduciary duty exists when the relationship goes beyond reliance and into a relationship characterized by "overmastering influence" on one side or "weakness, dependence, or trust, justifiably reposed" on the other side, Eloll. Inc, v. Ellias/Savion Adver,. Inc., 811 A.2d 10,22 (Pa, Super. Ct. 2002). 58, An agency relationship is "a fiduciary one, and the agent is subject to a duty ofloyalty to act only for the principal's benefit." Id, at 21. 59, Plaintiffs asked Mellott to act as their buyer's agent on Plaintiffs' behalf. 60, Plaintiffs asked Mellott to act as their buyer's agent on Plaintiffs' behalf due to concerns Plaintiffs had regarding observations of what appeared to be defects in the subject property. 61, Mellott and the Plaintiffs accepted and parties reduced their buyers' agency agreement to writing. The original of said agency agreement remains under the control of Mellott, 8 62. Plaintiffs were dependant on and trusted Mellott to disclose information regarding the subject property and to act in their best interests, 63, Mellott possessed an "overmastering influence" over Plaintiffs because within the agency relationship, he was the only party with access to the engineer's report, 64. Mellot breached his fiduciary duty by failing to disclose the engineer's report to Plaintiffs prior to their signing of the buyer's agreement. WHEREFORE, based upon the Defendants' breach of fiduciary duty, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, interest and costs of prosecution in excess of$25,OOO, COUNTS VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW. TITLE 73 P.S. && 201-2(4)(v) 201-2(4)(vii), 201-2(4)(xvii) 65, Paragraphs one (I) through sixty-four (64) are incorporated herein as iffully set forth. 66, P,S, g 201-2(4)(v) sets forth that representing that goods or services have certain approval, characteristics or uses or benefits that they do not have is an unfair or deceptive act or practice, 67. Mellott represented to Plaintiffs that the subject property had the use and/or benefit of withstanding a second floor. 68, While Mellott represented to Plaintiffs that the subject property had the use and/or benefit of withstanding a second floor, the engineering report sets out the subject could not withstand a second floor, See, Exhibit B. 9 69, Mellott represented to the Plaintiffs that the defects within the subject property were not likely to worsen. 70, 73 P.S, ~ 20I-2(4)(vii) defines an unfair or deceptive act or practice as when a good or service is incorrectly represented to be of a "particular standard, quality or grade," 71. Mellott misrepresented to Plaintiffs that the subject property was of particular standard, quality or grade so as not worsen to over time, 72. Mellott misrepresented to Plaintiffs that the subject property was of particular standard, quality or grade so as to be able to withstand a second floor being added. 73. 73 P,S, ~ 201-2(4)(xvii) explains that engaging in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding qualifies as an unfair or deceptive act or practice, 74. Mellott received the engineer's report, recast and conveyed the information to the Plaintiffs in a manner that created a misunderstanding with regard to the conclusions set forth in the engineer's report. 75, Mellott's conduct resulted in the Plaintiffs believing that the defects in the subject property were not serious enough to warrant a reduction in the purchase price or immediate repair, WHEREFORE, based upon the Defendants' violation of Unfair Trade Practices and Consumer Protection Law, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, costs, and treble damages in excess of$25,000. ABOM & KUTULAKIS, L.L.P. 10 judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, costs, and treble damages in excess of $25,000, ABOM & KUTULAKIS, L.L.P. Jo , Abom 36 outh Hanover Street Carlisle, PA 17013 Attorney for Defendant 11 VERIFICATION I hereby verify that the statements contained in this complaint are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. ~ 4904, relating to unsworn falsification to authorities. {po /~. ~3 Date #~~?Uhe~ J Hammelbacher, Plaintiff ~ ~ ~(\~ --~ tA CJ ::- -<\ -D I ~ '-.l ~: I '& ( . ,0 ):.. ;~ .~';; , ___, t=- -;..~ 0'") , -< .~~ :) rl SAIDIS SHUFF, FLOWER & LINDSAY ATIORNEYS.AT.LAW 26 W. High Street Carlisle, P A '1 Jo1m Hammelbacher and Jelmifer Hammelbacher, Plaintiffs In the Court of Common Pleas Cumberland County, Pennsylvania v, Civil Docket No,: 02-4921 & 03-2806 Vincent D, Mellott and B-H Agency Realtors, Defendants Jury Trial Demanded PRELIMINARY OBJECTIONS OF DEFENDANTS, VINCENT D. MELLOTT AND B-H AGENCY REALTORS I, Plaintiffs' filed a Complaint in the above-noted matter, a copy of which is attached hereto, without admitting the avennents herein and made a part hereof as Exhibit "A", 2, Plaintiffs' allege, in Paragraphs 33 through 40, a claim against Vincent D, Mellott and B-H Agency Realtors based upon "Intentional Misrepresentation (Fraud)," 3. Plaintiffs' allege, in Paragraphs 65 through 75, a claim against Vincent D. Mellott and B-H Agency Realtors based upon a "Violation of the Unifonn Trade Practices and Consumer Protection Law" for fraudulent misrepresentation, 4. Plaintiffs have failed to aver with particularity the claims of fraud as required by Pennsylvania Rules of Civil Procedure 1019(b), WHEREFORE, Defendants' request this Honorable Court to dismiss Plaintiffs' claims against Vincent D, Mellott and B-H Agency Realtors, Date: '7 ' ~ _ 0 "::, Respectfully submitted, SAID IS, SHUFF, FLOWER & LINDSAY ~) KU~~ .". ;q,ue Attorney 10 #77851 26 West High Street Carlisle, PA 17013 Phone: 717.243.6222 Attorney for Plaintiffs By: JOHN HAMMELBACHER and JENNIFER HAMMELBACHER, Plaintiffs, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYL VANIA VS, CIVIL DOCKET NO,: 02-4921 VINCENT D, MELLOTT and B-H AGENCY REALTORS, Defendants, ?/3- ~<i D (p JURY TRIAL DEMANDED COMPLAINT AND NOW, this Sixteenth day of June 2003, comes the plaintiffs, John Hammelbacher and Jennifer Hammelbacher by and through John A. Abom, Esquire of ABOM & KUTULAKlS, L.L.P" and file this Complaint against the defendants, Vincent D, Mellott and B-H Agency Realtors as follows: I. Plaintiffs, John and Jennifer Hammelbacher, live at 1005 Doubling Gap Road, Newville, Cumberland County, Pennsylvania, 2, Defendant Vincent D, Mellott's ("Mellott") employer is B-H Agency Realtors, ("B-H Realtors"), a business operating in the Commonwealth of Pennsylvania with offices at 163 North Hanover Street, Carlisle, Cumberland County, Pennsylvania and 51 Big Spring Avenue, Newville, Cumberland County, Pennsylvania, 3, Defendant Vincent D, Mellott is employed as a real estate broker with B-H Realtors and resides at 6 Meadow Lane, Newville, Cumberland County, Pennsylvania, 4, Defendant B-H Realtors are responsible for the actions of Defendant Mellott through the doctrine of Respondeat Superior, 5, In March of2000 Plaintiffs became interested in purchasing the property located at 1005 Doubling Gap Road, Newville, Cumberland County, Pennsylvania ("subject property"), r t';:~[) .". . ' ; ~~L'J my l'Ian,::t ": '...', , ' , 'e. < ^' fee--'l''''~ Ptl l'T :':: '~ttL. ',:;,':;,f:\,;': ~~',::'t; "..'..r'i;J:~; f.,l~ vdif ~:wv. ' n""-J.j;;.~;;~~t;-:;: f)c1:c "5 ~ ~ l':"tIYH1!\ttry tJ ~ Ii, ':' , .' ~ 6, The selling agency for the subject property was B-H Realtors, 7, The selling agent for the subject property was Vincent D, Mellott, 8, In late March of 2000, Plaintiffs asked Mellott and he accepted to act as a buyers' agent on Plaintiffs' behalf due to concerns Plaintiffs had regarding observations of what appeared to be defects in the subj ect property, 9, Plaintiffs and Mellott reduced to writing their buyers' agency agreement, the original of which remains under the control of Mellott, 10, After retaining Mellott's services as a buyers' agent, Plaintiffs expressed their concerns to Mellott regarding observations made at the subject property. I I, Plaintiffs inquired into the feasibility of a second floor considering the observations in the subject property, particularly in the basement/foundation walls, 12, Mellott hired Gregory Lebo of Brehm-Lebo Engineering ("Lebo") to inspect the structural condition of the subject property, 13, On or about March 25,2002, Lebo met with Mellott to observe the structural condition of the subject property, See, Engineer's Report attached as Exhibit B. 14. When Lebo met with Mellott on or about March 25,2002, to observe the structural condition of the subject property, Lebo made comments to Mellott about the structural problems and corrective measures that should be taken in the subject property. 15, The engineer's report (Exhibit B) was completed on March 28, 2000. 16, A copy of the engineer's report was sent to Mello1:t via facsimile on or about March 28,2000, 17. The engineer's report found the following: 2 a. Noticeable movement and horizontal cracks halfway up the rear wall (north side) and the right wall (east side), b. One inch of inward movement in the north wall. c, One half inch of inward movement in the east wall. d, Inadequate final grading caused the inward movement by allowing water to cumulate along the house, leading to a build up of extensive hydrostatic pressure between the basement/foundation walls, 18, The engineer's report recommended the following corrective measures to secure the walls for the rest of the life of the structure: a, A swale should be graded around the north arid east sides of the subject property to divert water away from the subject property, b. The top four (4) feet of soil along the north arid east walls should be excavated and backfilled with 2B stones, c, The north and east walls should be pushed back into a vertical position during the excavation process. d. Three (3) plasters should be built along the north wall and one (I) along the east wall. e, Installation of weep holes in the north and east walls and a footing drain tied into a sump pit. 19. The engineer's report did not opine that the foundation was suitable to accept a second floor. 20, Mellott failed to provide to Plaintiffs a copy of the engineer's report prior to their signing of the buyer's agreement. o ~ 21. Mellott failed to accurately explain the contents of the engineer's report to Plaintiffs prior to their signing of the buyer's agreement. 22, Mellott did not memorize in writing to the Plaintiffs the contents of the engineering report, 23, Plaintiffs agreed to purchase the subject property at a price that was within $2,500 of the seller's original asking price, 24, Mellott verbally misrepresented the contents oithe engineer's report to the Plaintiffs. 25, Mellott verbally represented to Plaintiffs that the structure of subject property would not worsen, 26, Mellott possessed knowledge that the Engineer's Report contained information of a defect at the subject property. 27, The knowledge Mellott possessed about a material defect at the subj ect property would have prevented the Plaintiffs from purchasing the subject property at the original purchase price, 28, In reliance upon Mellott's verbal misrepresentations, Plaintiffs did not request a reduced purchase price to reflect the true extent of1:he defects. 29, In reliance upon Mellott's verbal misrepresentations, Plaintiffs purchased the subject property under an assumption they could make a second story addition to the home, 30, In reliance upon Mellott's verbal misrepresentations, Plaintiffs purchased the subject property under an assumption that the structure of the subject property would not worsen. 4 31, In reliance upon Mellott's verbal misrepresentations, Plaintiffs proceeded to settlement and purchased the subject property on August 31, 2000. 32, Since August 31,2000 the defects included in the Engineer's Report have continually worsened. COUNT 1 INTENTIONAL MISREPRESENT A TION (FRAUD) 33, Paragraphs one (I) through thirty-two (32) are incorporated herein as if fully set forth, 34, The elements of intentional misrepresentation are: a representation must be made which is material to the transaction at hand, the representation must be made falsely with knowledge of its falsity or recklessness as to whether it is true or false, the representation must be made with intent of misleading another into relying on it, the plaintiff must justifiably rely on the misrepresentation, and the resulting injury must be proximately caused by reliance, Bortz v, Noon, 729 A.2d 555, 560' (Pa, 1999), 35, Mellott made representations to Plaintiffs regarding the structural soundness of the said property, 36, Mellott's representations were material to the transaction of Plaintiffs purchasing the subject property, 37, Mellott's representations were made falsely with either knowledge of its falsity or recklessness as to whether it is true or false, 38, Mellott made said representations with the intent of misleading the Plaintiffs into relying on his representations, 39, Plaintiffs justifiably relied on Mellott's misrepresentation, 5 40, The Plaintiffs' injury was proximately caused by their reliance on Mellott's representations, WHEREFORE, based upon the Defendants' intentional misrepresentation, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, interests and cost of prosecution in excess of$25,000, COUNT 2, NEGLIGENT MISREPRESENT A nON 41. Paragraphs one (I) through forty (40) are incorporated herein as if fully set forth, 42. The elements of negligent misrepresentation are: a misrepresentation of a material fact, made under circumstances in which the misrepresenter ought to know its falsity, with an intent to induce another to act on it, and which results in injury to a party acting in justifiable reliance on the misrepresentation. Herita,~e Surveyors & Eng'r, Inc" 801 A,2d 1248, 1252 (Pa, Super. Ct. 2002).' 43, Defendant Mellott made representations to Plaintiffs regarding the structural soundness of the subject property, 44. Mellott's representations were material to the transaction of Plaintiffs purchasing the subject property. 45, Mellott's representation was made under circumstances in which he ought to have known its falsity, 46, Mellott made the misrepresentations with an intent to induce Plaintiffs to act and/or rely on his representations, 6 47, Mellott's misrepresentations to Plaintiffs resulted in Plaintiffs' injury, 48, Plaintiffs justifiably relied on Mellott's misrepresentation, WHEREFORE, based upon the Defendants' negligent misrepresentation, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, interest, restitution, attorney fees, and costs of prosecution in excess of $25,000. COUNT 3 INTENTIONAL NONDISCLOSURE 49, Paragraphs one (I) through forty-eight (48) are incorporated herein as iffully set forth, 50, The elements of intentional nondisclosure are: the defendant must conceal a material fact, the representations must be made falsely with either knowledge of its falsity or recklessness as to whether it is true or false, the representations must be made with the intent of misleading one to rely on it, plaintiff must justifiably rely on the misrepresentations, plaintiffs injury must be proximately caused by reliance on the defendant's representations, Bortz v, Noon, 729 A.2d at 561, 51, Mellott concealed a material fact from the Plaintiffs regarding the structure of the subject property. 52, Mellott's representations were made falsely with either knowledge of its falsity or recklessness as to whether it is true or false. 53, Mellott's representations were made with the intent of misleading Plaintiffs to rely on his representations, 54. Plaintiffs justifiably relied on Mellott's misrepresentations, 7 55, Plaintiffs' injury was proximately caused by their reliance on Mellott's representations, WHEREFORE, based upon the Defendants' intentional nondisclosure, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, interest, and costs of prosecution in excess of $25,000, COUNT 4 BREACH OF FIDUCIARY DUTY 56, Paragraphs one (I) through fifty-five (55) are incorporated herein as if fully set forth, 57, A fiduciary duty exists when the relationship goes beyond reliance and into a relationship characterized by "overmastering influence" on Gne side or "weakness, dependence, or tmst, justifiably reposed" on the other side, ]Stoll. Inc, v, Ellias/Savion Adver., Inc" 811 A.2d 10, 22 (Pa. Super. Ct. 2002), 58, An agency relationship is "a fiduciary one, and the agent is subject to a duty ofloyalty to act only for the principal's benefit." Id. at 21. 59. Plaintiffs asked Mellott to act as their buyer's agent on Plaintiffs' behalf. 60, Plaintiffs asked Mellott to act as their buyer's agent on Plaintiffs' behalf due to concerns Plaintiffs had regarding observations of what appeared to be defects in the subject property, 61. Mellott and the Plaintiffs accepted and parties reduced their buyers' agency agreement to writing, The original of said agency agreement remains under the control of Mellott. 8 62, Plaintiffs were dependant on and trusted Mellott to disclose information regarding the subject property and to act in their best interests, 63, Mellott possessed an "overmastering influence" 'ever Plaintiffs because within the agency relationship, he was the only party with access tc the engineer's report, 64, Mellot breached his fiduciary duty by failing to disclose the engineer's report to Plaintiffs prior to their signing of the buyer's agreement. WHEREFORE, based upon the Defendants' breach of fiduciary duty, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, interest and costs of prosecution in excess of $25,000, COUNTS VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW, TITLE 73 P.S. && 201-2(4)(v) 201-2(4)(vii), 201-2(4)(xvii) 65, Paragraphs one (I) through sixty-four (64) are incorporated herein as if fully set forth, 66, P,S, ~ 201-2(4)(v) sets forth that representing that goods or services have certain approval, characteristics or uses or benefits that they do not have is an unfair or deceptive act or practice. 67, Mellott represented to Plaintiffs that the subject property had the use and/or benefit of withstanding a second floor. 68, While Mellott represented to Plaintiffs that the subject property had the use and/or benefit of withstanding a second floor, the engineering report sets out the subject could not withstand a second floor. See, Exhibit B, 9 69, Mellott represented to the Plaintiffs that the defects within the subject property were not likely to worsen. 70, 73 P,S, 9 201-2(4)(vii) defines an unfair or deceptive act or practice as when a good or service is incorrectly represented to be of a "particular standard, quality or grade, " 71, Mellott misrepresented to Plaintiffs that the subject property was of particular standard, quality or grade so as not worsen to over time, 72, Mellott misrepresented to Plaintiffs that the subject property was of particular standard, quality or grade so as to be able to withstand a second floor being added. 73, 73 P,S, 9 201-2(4)(xvii) explains that engaging.in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding qualifies as an unfair or deceptive act or practice, 74. Mellott received the engineer's report, recast and conveyed the information to the Plaintiffs in a manner that created a misunderstanding with regard to the conclusions set forth in the engineer's report, 75, Mellott's conduct resulted in the Plaintiffs believing that the defects in the subject property were not serious enough to warrant a reduction in the purchase price or immediate repair. WHEREFORE, based upon the Defendants' violation of Unfair Trade Practices and Consumer Protection Law, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, costs, and treble damages in excess of $25,000, ABOM & KUTULAKIS, L.L.P, 10 judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, costs, and treble damages in excess of $25,000, ABOM & KUTULAKlS, L.L.P, Jo Attorney for Defendant 11 VERIFICATION I hereby verify that the statements contained in this complaint are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa,C,S, S 4904, relating to unsworn falsification to authorities, {po Icl. J3 Date Hammelbacher, Plaintiff J f:~mm SAIDIS SHUFF, FLOWER & LINDSAY ATrORNEYS-AT-LAW 26 W. High Street Carlisle, PA Jolm Hammelbacher and Jennifer Hammelbacher, Plaintiffs In the Court of Common Pleas Cumberland County, Pennsylvania v, Civil Docket No,: 02-4921 & 03-2806 Vincent D, Mellott and B-H Agency Realtors, Defendants Jury Trial Demanded CERTIFICATE OF SERVICE On this 1ty of ~/, 2003, I, Kirk S, Sohonage, Esquire, hereby certify that I served a tme and correct copy ofthe foregoing PRELIMINARY OBJECTIONS OF DEFENDANTS', VINCENT D. MELLOTT AND B-H AGENCY REAL TORS via United States Mail, first-class, postage prepaid addressed as follows: John A. Abom, Esquire ABOM & KUTULAKlS, LLP 36 South Hanover Street Carlisle, PA 17013 SAIDIS, SHUFF, FLOWER & LINDSAY By: Kirk -,,", '?T. \~''\}(''':;'?'''''~''~':'Jf~':f",~~"" "'f~,'JT;"!'':"'!>'?\T'';\'''' ". ,,,,,:,,'''''l~~J't4.~pnf, <~"-"":" :::''>-''~:..r' .' Sll~JRG,PAl71 , (717) 232.95 1 4 2003 s JOHN HAMMELBACHER and JENNIFER HAMMELBACHER, Plaintiffs. IN TIlE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA VS, CIVIL DOCKET NO,: 02-4921 & 03-2806 /' i" VINCENT D. MELLOTT and B-H AGENCY REALTORS. Defendants, JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this I ~ day oOuly, 2003 upon consideration of the attached Petition for Consolidation of Docket Numbers and upon learning that counsel for all parties are in agreement that the two above-referenced docket numbers should he consolidated, it is hereby directed that the docket number 02-4921 be used hereafter in this matt:r. , ) ;;~.,.- /' Date: , ./ By thtrCourt: I,' ,1, ......,-l," )- //'" . ~l;/!vi, i / f 't'.# ,. ,f '11 . ~ JOHN HAMMELBACHER and JENNIFER HAMMELBACHER, Plaintiffs, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUN1Y : PENNSYLVANIA VS. : CIVIL DOCKET NO.: 03-2806 VINCENT D. MElLOTT and B-H AGENCY REALTORS, Defendants. PRAECIPE TO WITHDRAW COMPLAINT Please withdraw the Complaint in the above-captioned matter. Respectfully submitted, DAlE ABOM & /'" '-- John A. Abom, E 36 S. Hanover S Carlisle, P A 1701 (717) 249-0900 ID No. 77961 Attorney for P laintfffs .1. ~' CERTIFICATE OF SERVICE AND NOW, this 20th day of September, 2006, I, Emily J. Filiberti, of Abom & Kutulakis, L.L.P., hereby certify that I did serve or cause to be served a true and correct copy of the foregoing Praecipe to Withdraw via U.S. Mail upon the following: James Flower, Esquire Saidis, Shuff, Flower & Lindsay 26 W High Street Carlisle, P A 17013 Attomrys Jar Defendant o " fLj~' ~( (") r-.:> <:::) ~ c <:::) s: g'"' "'0 l'D en ~:D mn' l""'l z:r:' -0 r- ZC N :gm ~:.:: <::) 96 r:l'-" :< "'.~- -0 :I :r~ ::r> ..~ 00 z'........ :x :;p:;U 2m C W a ~ ~ OJ -<