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HomeMy WebLinkAbout99-01466 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA HARRY G. BANZHOFF. III. Plaintiff, VS. : No. (N - 1% (. ~-r;_ LLOYD E. GEESMAN Defendant, : CIVIL ACTION-LAW : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or far any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNONT AFFORD ONE, FO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Court Administrator One Courthouse Square Carlisle, Pennsylvania 17013 (717) 240-6200 I I , 'I I I I I ! ,'I .', . . .' ',... I '- . . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA HARRY G. BANZHOFF, III, Plaintiff, vs. : No. 99 - Nt, G CWd "-.u.- LLOYD E. GEESMAN Defendant, : CIVIL ACTION-LAW : JURY TRIAL DEMANDED COMPLAINT AND NOW, COMES, the above-named Plaintiff by and through his attorney, William C. Felker, files this Complaint against the above-named Defen'lant, hereinafter sets forth the following: COUNT I BREACH OF CONTRACT 1, Plaintiff is an adult individual residing at 350 North 251h Street, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Defendant is an adult individual with a last known residence of R.D. No.2, Box 206-B, New Bloomfield, Dauphin County, Pennsylvania 17068. 3. On or about March 31,1998, Plaintiff and Defendant cxecuted a written agrecment (hereinafter "thc contract" - herein attached as Exhibit A) whercby Defcndant agreed to provide neccssary labor and matcrials, according to thc contract specifications and in a workmanlike manner, for foundation and brick work at the propcrty known and numbered as 350 North 25"' Street, Camp Hill, Cumberland County, Pennsylvania (hereinafter "the addition" or "the cxisting structure") and Plaintiff agreed to pay Defendant the sum of twenty nine thousand two hundred and fifty dollars ($29.250.00) payable according to the tcrms of the contract. 4. The contract price was reduced by three thousand eight hundred dollars ($3,800.00) because Plaintiff decided not to brick the second story and gable ends of the addition. 5. On or about March 31,1998, Plaintiff paid Defendant the sum of eight thousand dollars ($8,000.00) to begin work. 6. Plaintiff and Defendant discussed and agreed upon the importance of matching the new brickwork under the contract with the existing brickwork on the existing structure, which understandings were implicit in the written agreement between the parties. 7. Defendant agreed to provide Plaintiff with brick samples and agreed to take a sample of the existing mortar to the brick supplier for matching, which understanding was implicit in the written agreement between the parties. IS. On or about July 3, 1998, Plaintiff sent Defendant a Ie Iter (herein attaehed as Exhibit B) confirnling the parties' agreement over the disputed cleaning and laying of salvaged hrick; whereby, Plaintiff paid Defendant eight hundred and forty dollars ($840.00) and Defendant agreed to clean the salvaged brick and, as required by the contract, lay the salvaged brick on the front face of the addition and on the garage of the existing structure. 16. Approximately, one third (1/3) of the salvaged brick was destroyed by Defendant's subcontractor during backfilling. 17. Although not required under the terms of the contract, on or about December 18, 1998, Plaintiff paid Defendant the sum of four thousand dollars ($4,000.00). 18. On or about January 7, 1999, Defendant finished laying brick on the side and back part of the addition and moved the salvaged brick into the garage of the existing structure to dry. 19. Defendant did not, as required by the contract, match the mortar on the addition to the mortar on the existing structure. 20. Defendant did not, as required by the contract, lay the bricks on the addition in the same pattern as the existing structure. 21. Many (more than 2S%) of the brick laid by Defcndant were damaged (cmckcd) and, upon subscqucnt information and belief, Defcnd.mt knowingly used defcctive brick. 22. On or about January 7, 1999, Delclldant indicmed Illl'laintiff that he would be unable to rcpair the sidewalk until spring but would rcturn on January II, 1999 to finish laying the brick around the garage of the existing structure/addition. 23. On or about January 8, 1999, Defendant contacted plaintiff demanding a final payment under the contract. Plaintiff refused, informing Defendant that brick still needed to be laid on the front of the existing structure/addition, that the brick and mortar still needed to be cleaned, that the drain pipe from the foundation to the street still needed to be installed and that the sidewalk still needed to be replaced. 24. On or about January 11, 1999, Defendant removed his equipment from the job site and refused to complete performance of the contract. 25. The aforesaid acts and omissions of Defendant constitute material breaches of the contract. 26. As a direct and proximate result of Defendant's breaches of contract set forth above, Plaintiff has suffered damages in an unliquidated amount exceeding $25,000.00 for future cost to repair or replace defective work, for diminished value of Plaintiffs property and costs to finish unfinished portions of the work. ~ FROM: LLOYD B. GBSSMAN R.D. No.2, Box 206-B New Bloomfield, PA 1706. 717-512-4659 , TO: HII1y G. BanzhofT, III 350 North 25. Slreel Camp HiI~ PA 17011 717-737-2801 We hereby propose to furnish the mllerials and pcrfonn the labor aeceswy for Ibe comp/elion of: Foundation (or addition to Ibe home and ~e brick for the addition. Size ICCOfdlng to Ibe piaL Site Preparation: Remove all shrubbery and fCllclag as requiRe!. Thelree at the front oflbe howe lIlId shrub at outside front comer o((ot is not to be destroyed. If they need to be removed they must be replaced. Any damage to driveway or sidewalk will be repaired. Foundation: Eseavadoa: dig out (or four-foot crawl space. Dig for footer only II the gange, 7 feet liom the gange. No crawl IIpIICIl at the side of gange. Footer: cemeot, 7 inch to 8 inch deep, 18 inch.. wide. Wall: 6 courses high of 10 loch block, 3 windows size; rough openlop 16 loch x J2 loch with three window wells. Anchor strops every 5 blocb. The wall will be sprayed will tar. Floor: cemeot2 ~ inch.. deep, bull float finish with sufficient slope to drain any water to one of the two floor drains. No block is needed along the house and garage wall. Floor Draw: There will be two 4-inch floor drains, which if grade permiU, drained to the front oflbe property line. If grade docs not permit drains should be connected to the existing sewer system. Grading is to be rough gradlog only, no finish gradlog. Emrlor Dram.le: A drain field with 2B stone and and a 4 inch pipe be be pl.accd around the (oundatlon and drained to the front of the property line. ($11,400) Srickworlc: On the one story part of the house, 8' to 9' high ($14,000), brick on the second story of garage and gable CIIds ($3,800). Angle Irons are not included. There is a $150 allowance. Anything over the $150 is extra. Rebuild front garage pillar. All matcriaIis guaranteed to be as specified, and the above work to be preformed in a<:cordance with the drawings and specifications submitted for above work and completed in a worlcmanlike malmner for the some of$29,250. With payments made as follows: $8,000 at signing of contract $10,000 when the foundation is fmished $8,000 when the brick work is fmlshed Balance when all work is completed IIan7 G. B- t ~m .HI ...._.... c..p HIlI, PA 17011 " omc. (717) 737.1101 F.. (717) 137.2141 Friday. July 3. 1998 Lloyd E. Geesaman, R.R. No.2, Box 811 New Bloomfield, PA 17068 Dear Lloyd: I am writing to confirm our agreement regarding the cleaning of brick needed to brick the front face of the addition and existing garage. As agreed I am enclosing a cheek for $860.00, whieh will cover the cleaning and laying of the bricks to be used on the front of the house. I will be given a credit for the pun:hasc of new brick equal to the nwnbcr of brick used on the front of the house. J:t Harry G. I ~... i;. .~ .... r; '" (j...... . .:> ,) ..... ~.j ... J " ~ ;) '., '.r )- ,.. .. ., .If '-J \' ..:: I!' ,. I. Mot/on to Dismiss Count /I For Failure to State a Cause of Act/on 4. PlaintilT enlered into a contract with Defendant to pcrform construction services related to the expansion ofPlaintitl's business which is located at3S0 North 2Sth Slreet, Cnmfl Hill, Cumberlund CountY,l'ennsylvania 1701 I. S. The contract whieh forms the basis for Count II was not primarily for personal, family or household pUrposes as required by ~201-9.2 (a) of the UTPCPL. 6. Further, Plaintitl's complaint does not allege specific acts of fraud on thc part of Defendant. In order to recover under the UTPCPL the Plaintiff must plead elements of common law fraud. Prime Meats, Inc., v, Yocilim, 422 Pa. Super. 460, 619 A.2d 769 (1993). 7. As the Superior Court held in Burkilolder v, Cilerry, 414 Pa. Super. 432, 607 A.2d 745 at 749 (1992) the intent of the UTPCPL is to prevent fraud. 8. Plaintitl's complaint fails to set forth any specific factual allegations other than conclusions of law regarding Defendant's alleged fraud. WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss with prejudice Count II since Plaintiffs Complaint fails to state a cause of action. Motion for a More Specific Pleading 9. Plaintiffs Complaint alleges that he has sustained in excess of $25,000.00 in damages for "cost to repair or replace defective work, for diminished value of Plaintiffs properly and costs to finish unfinished portions of the work". See ~26 of Complaint. 10. Defendant is without information to form a defense to '26 since it is vague and ambiguous. II. Defendant is without information to form a defense to '21, '28, or '29 since the allegations are not specific regarding the alleged fraud and defects. .... Cl ~ r-' c: .!: c:: ).- lUt-. l '. ( ,- .. , ~ -. ~:. . l:':'" -)~ ,"" _1. ~ 'r:l I.~I :J';';: Li..;' ", i.J.... S lili'O j" -, :'.!Cl.. l.~ en ~j 0 en 0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA HARRY G. BANZHOFF, III, Plaintiff, VS. : No. 99-1466 Civil Term LLOYD E. GEESMAN Defendant, : CIVIL ACTION-LAW : JURY TRIAL DEMANDED NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPOSE TO THE ENCLOSED ADMENDED COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR JUDGMENT MAY BE ENTERED AGAINST YOU. AMENDED COMPLAINT AND NOW, COMES, the above-named Plaintiff by and through his attorney, William C. Felker, files this Amended Complaint against the above-named Defendant, hereinafter sets forth the following: COUNT I BREACH OF CONTRACT I. Plaintiff is an adult individual residing at 350 North 25~ Street, Camp Hill, Cumberland County, Pennsylvania 17011. 7. Ocfendant agreed to provide Plaintiff with brick samples and agreed to take a sample of the existing mortar to the brick supplier for matching, which understanding was implicit in the written agreement between the parties. 8. Defendant provided Plaintiff with brick samples and, upon subsequent information and belief, Defendant made no effort to match the mortar. 9. On or about June 19, 1998, Plaintiff paid Defendant the sum of ten thousand dollars ($10,000.00). 10. Instead of 2B stone, as required by the contract, Defendant used substandard stone around the drainpipe surrounding the foundation. I I. The contract requires that the floor of the crawl space, located under the addition, be sUfficiently sloped to allow water to drain from the crawl space floor. 12. Defendant constructed the floor of the crawl space, located under the addition, with an insufficient slope to allow water to drain from the crawl space floor. 13. Defendant did not, as required by the contract, properly construct the foundation of the addition to prevent water infiltration into the crawl space. 20. Defcndant did not, as required by the contract, lay the bricks on the addition in the same pattern as the existing structure. 21. Many (more than 25%) of the brick laid by Defendant are defective, in that those bricks contain cracks which will inevitably begin to furthcr crack and break-off as moisture penetrates the brick and begins to freeze and thaw, upon subsequent information and belief, Defendant knowingly used defective brick. 22. On or about January 7,1999, Defendant indicated to Plaintiff that he would be unable to repair the sidewalk until spring but would retum on January II, 1999 to finish laying the brick around the garage of the existing structure/addition. 23. On or about January 8, 1999, Defendant contacted plaintiff demanding a final payment under the contract. Plaintiff refused, informing Defendant that brick still needed to be laid on the front of the existing structure/addition, that the brick and mortar still needed to be cleaned, that the drain pipe from the foundation to the street still needed to be installed and that the sidewalk still needed to be replaced. 24. On or about January 11, 1999, Defendant removed his equipment from the job site and refused to complete performance of the contract. 25. The aforesaid acts and omissions of Defendant constitute material breaches of the contract. '.',.' ,., "'-"',"""',--",. "....-.--.- ,. --. -. 28. Defendant represented the brick, used to construct the addition, as being new and/or of a particular quality or grade when in fact the brick was defective and of poor quality, in that numerous bricks contained significant cracking. 29. The brick and stone, used by defendant, were of a nature or quality inferior to or below the standard of that agreed to in the written contract, in that the much of the brick used by defendant was cracked and that the defendant placed 2A modified stone with dirt (which is used for packing) around the foundation instead of 2B stone (which is used for drainage) as required by the contract. 30. Plaintiff was a consumer as that term is defined under the Pennsylvania Unfair Trade Practices and Consumer Protection Law with respect to the contract in question. 31. Defendant was a seller of goods and services as defined under the Pennsylvania Unfair Trade Practices and Consumer Protection Law. 32. Defendant's acts and omissions as set forth above herein constitute violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law at 73 P.S. 9201-3. WHEREFORE, Plaintiff Harry G. Banzhoff, III respectfully requests this Court to enter judgment against Defendant Lloyd E. Geesman in an amount exceeding $25,000.00 for compensatory damages, together with punitive damages and treble damages, costs of this ..~, S. Denied. To the cxtent the allegations of the corrcsponding paragraph constitutes legal conclusions, the same arc deemed to be denied without furthcr response pursuant to the applicable Pennsylvania Rules of Civil Proccdure. To thc extent the allegations of thc corresponding paragraph constitute factual averments, the same are denied. It is specifically denied that the contract that forms the basis for Count II was not primarily for personal, family or household purposes. By way of further answer, it is averred that an addition of approximately 2,500 square feet was constructed at Plaintiffs home (primary residents) located at 350 North 25"' Street, Camp Hill, Cumberland County, Pennsylvania, whieh includes a master bedroom suite of approx. 900 sq. ft. a kitchen, dining and living area of approx. 750 sq. ft. and a den above the garage of approx. 740 sq. ft. 6. Denied. To the extent the allegations of the corresponding paragraph constitutes legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are denied. It is specifically denied that Plaintiffs amended complaint does not allege specific acts of fraud on the part of defendant. By way of further answer, as averred in Plaintiffs Amended Complaint, paragraphs 28 and 29, defendant's acts of using inferior materials and his misrepresentations of such materials establish specific acts and specific factual allegations to constitute a cause of action under the Pennsylvania Unfair Trade Practices and Consumer Protection Law. 7. No response is required. The allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. ,,- c:> .- c.r-: -. ~.: . .., l!l' , " ;" , 2' -, ., .. , J _..1 , (~ < I.. (., , c , 0 .> \: " ~ <x> ~ <l. tr. .<- ...,. 9 :::>< lJJq C)~. <;.>-, ?2 c:J:'? _I' "~ .., ~.:l~ ,\)t-: ';;fu ;Sf' r- 1 :JZ lW" U:Z u:~;c: "" \.tJLU "'" COo. ~.. :l: ~ u. 0 a 0 0 ..... SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1999-01466 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BANZHOFF HARRY GIll VS. GEESMAN LLOYD E R. Thomas Kline , Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: GEESMAN LLOYD E but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of PERRY to serve the within NOTICE AND COMPLAINT County, Pennsylvania. On April 8th, 1999 the attached return from , this office was in receipt of PERRY County, Pennsylvania. Sheriff's Costs: Docketing Out of County Surcharge Dep. Perry County 18.00 9.00 8.00 22.00 ~t> I. UU WII,LIlIM FELKER 04/08/1999 soa~.rs: ~ ,~ ~;.o'?~..?-: ,. :....- .. m lone, e Sworn and sUbscribed/~b~(ore me this c:Pft. day of ;_ 19 f1 A.D. , .. . In The Court of Common Pleas of Cumberland County, Pennsylvania H~rry G. Banzhoff. III VS. 1,1oyd E. Gees.'Mn No. 99-1466 Civil Now, MAr 17 1009..... , J 9_, I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Perry County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. r-~~ Sheriff of Cumberland County, PA Affidavit of Service Now, April 7 ,19~,at 7:25 o'clock~M.selVedthe within Complaint upon Llovd E. Geesman at R.D, 2 Box 206-B, New Bloomfield. PA 17068 by handing to Lloyd E. Geesman a True and Attested copy of the original Complaint and made known to him the contents thereof. So answers, C\ .1 Dep~ e . ,\=-~ pef.rv County. PA Sworn and subscribed before me thisL day of A~..i ,1999 COSTS SERVICE MILEAGE AFFIDAVIT $ 4:. ft...1IJ,...f, r~'y~"'" ;,.. ", ! ~i:.;:\i: ! ;1...';; '-.....~...".. -.. '1 '-. !. .~: I , . . . '" $ ( . 2. Defendant is an adult individual with a last known residence of R.D. No.2, Box 206.B, New Bloomlield, Dauphin County, Pennsylvania 17068. 3. On or about March 31, 1998, Plaintiff and Defendant executed a written agreement (hereinafter "the contract" - herein attached as Exhibit ^) whereby Defendant agreed to provide necessary labor and materials, according to the contract specifications and in a workmanlike manner, for foundation and brick work at the property known and numbered as 350 North 25"' Street, Camp Hill, Cumberland County, Pennsylvania (hereinafter "the addition" or "the existing structure") and Plaintiff agreed to pay Defendant the sum of twenty nine thousand two hundred and fifty dollars ($29,250.00) payable according to the terms of the contract. 4. The contract price was reduced by three thousand eight hundred dollars ($3,800.00) because Plaintiff decided not to brick the second story and gable ends of the addition. 5. On or about March 31,1998, Plaintiff paid Defendant the sum of eight thousand dollars ($8,000.00) to begin work. 6. Plaintiff and Defendant discussed and agreed upon the importance of matching the new brickwork under the contract with the existing brickwork on the existing structure, which understandings were implicit in the written agreement between the parties. 20. Defcndant did not, I' required by thc contract, lay thc brick, on thc addition in the ume paltcrn as the cxisling SlIUcture. 21. Many (more than 2S %) of thc brick laid by Ocfcndant arc dcfectivc, in that those bricks contain cracks which will inevitably begin to furthcr crack and brcak-off as moisture pcnctrates the brick and begins to freeze and thaw, upon subscqucnt information and belicf, Defendant knowingly used defcctive brick. 22. On or about January 7, 1999, Defendant indicatcd to Plaintiff that hc would be unable to repair the sidewalk until spring but would return on January II, 1999 to finish laying the brick around the garage of the existing structure/addition. 23. On or about January 8, 1999, Defendant contacted plaintiff demanding a final payment under the contract. Plaintiff refused, informing Defendant that brick still needed to be laid on the front of the existing structure/addition, that the brick and mortar still needed to be cleaned, that the drain pipe from the foundation to the street still needed to be installed and that the sidewalk still needed to be replaced. 24. On or about January 11,1999, Defendant removed his equipment from the job site and refused to complete performance of the contract. 25. The aforesaid acts and omissions of Defendant constitute material breaches of the contract. 28. Defendant represented the brick, used to construct the addition, as being new and/or of a particular quality or grade when in fact the brick was defective and of poor quality. in that numerous bricks contained significant cracking. 29. The brick and stone, used by defendant, were of a nature or quality inferior to or below the standard of thaI agreed to in the written contract, in that the much of the brick used by defendant was cracked and that the defendant placed 2A modified stone with dirt (which is used for packing) around the foundation instead of 2B stone (which is used for drainage) as required by the contract. 30. Plaintiff was a consumer as that term is defined under the Pennsylvania Unfair Trade Practices and Consumer Protection Law with respect to the contract in question. 31. Defendant was a seller of goods and services as defined under the Pennsylvania Unfair Trade Practices and Consumer Protection Law. 32. Defendant's acts and omissions as set forth above herein constitute violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law at 73 P.S. ~201-3. Specifically as defined under 73 P.S. ~201-2(4)(vi), (vii) and (xvi). WHEREFORE, Plaintiff Harry G. Banzhoff, III respectfully requests this Court to enter judgment against Defendant Lloyd E. Geesman in an amount exceeding $25,000.00 for compensatory damages, together with punitive damages and treble damages, costs of this . . HARRY 0. IlANZIIOFF.lII. I'LAINTIFF IN TIlE COURT OF COMMON PLEAS CUMIlERI.AND COUNTY. PENNSYLV ANIA VS. LLoYD E. OEESAMAN, DEFENIMNT NO. 'J'J. 1466 CIVIL TERM CIVIL A("I'ION - LA W JURY TRIAL DEMANDED NOTICE YOU I/A VE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN TilE FOLLOWING PAGES. YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER TillS COMPLAINT AND NOTICE ARE SERVED BY ENTERING A WRITTEN APPEARANCE pERSONAI.LY OR BY ATTORNEY AND FILING IN WRITING WITH TilE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO TilE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAYBE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LA WYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator 4th Floor. Cumberland County Courthouse One Courthouse Square Carlisle. Pennsylvania 17013 (717) 697-0371 BY: teven How , squire 619 Bridge Street New Cumberland, PA 17070 (717)770-1277 Supreme Court I.D. 62063 Attorney for Counterclaim Plaintiff Date: June 13, 2000 7. ADMITI'ED that Defendant provided brick samples to the Plaintiff. ADMIlTED that D"fendanttook a sample of the existing mortar to the brick supplier. ADMrrrED that the brick supplier then provided the closest possible match to the existing brick mortar. By way of further explunation, Pluintiff was told that it is not possible to exactly match old and new brick mortar. It is DENIED that the parties entered into any implicit or implied agreements other than that set forth in Exhibit "A". 8. DENIED AS STATED. It is ADMITTED that Defendant took a sample of the existing mortar to the brick supplier. ADMITTED that the brick supplier then provided the closest possible match to the existing brick mortar. By way of further explanation, Plaintiff was told that it is not possible to exactly match old and new brick mortar. It is expressly DENIED that the Defendant made no effort to match the brick mortar. 9. DENIED AS STATED. Plaintiff paid the sum of$IO,OOO.OO on June 5,1998 not June 19, 1998. 10. DENIED AS STATED. Defendant installed 2A stone instead of2B stone. It is expressly DENIED that the substitution of2A stone instead of2B stone is substandard. To the contrary, both 2A stone and 2B stone are commercially acceptable for the installation at Plaintiffs job site. II. DENIED AS STATED. Exhibit "A" speaks for itself and no response is required to Plaintiffs interpretation of what Exhibit "A" requires. Ifa response were required, it is specifically denied that the Defendant has caused any problem which would result in water failing to drain from the crawl space floor. 2 12. DENIED. Defendant did not construct the floor of the: crawl spuce: with an insufficient slope to allow wate:r to drain from the crawl space floor. To the contrary. PlaintifT insisted on installing only two (2) drains over the fony (40) foot span. Funher, if the PlaintilTis experiencing any wuter problems it may be due to improper final gruding which was Plaintifi's responsibility under the contract or the lack of additional drains. 13. DENIED. It is specifically DENIED that the Defendant improperly constructed the foundation of the addition to prevcnt water infiltration inro the crawl space. To the contrary. Defendant properly constructcd the foundation and properly waterproofed the exterior wall with parging and tar including a foundation drain. Further, if the Plaintiff is experiencing any water problems it may be due to improper final grading or the lack of additional drains. However, it was the PlaintilTwho drafted Exhibit "A" and it was the PlaintilTwho insisted on only two drains. 14. ADMIlTED. It is ADMIlTED that PlaintilTsoughtto have the Defendant clean and install salvaged brick. It is DENIED that the Defendant agreed to install and clean salvaged brick in accordance with Exhibit "A". However, Defendant and Plaintiff entered into a separate verbal agreement for Defendant to clean and lay salvaged brick. 15. ADMIlTED that Plaintiff sent a letter attached as Exhibit "B" to Defendant. It is DENIED that this letter correctly set forth the panies' verbal agreement. The verbal agreement did not include any work by Defendant to the front of the building. 16. DENIED. Defendant did not destroy 1/3 of the salvaged brick. By way of further explanation, Plaintiff wanted all salvaged bricks which were not going to be used to be removed from the job site. 3 17. DENIED AS STATED. It is ADMJ'lTED that PlaintilT paid thc sum of Four Thousand ($4,000.00) Dollars to Defcndant on Deccmber 21. 1998. PlaintilTpaid this sum bccausc the contract called for $R,OOO.OO to be paid when all "brick work is finished". 18. ADMI'ITED. 19. DENIED. It is DENIED that the Defendant failcd to match the new monar to thc old mortar. Plaintiff was told prior to the commencement of any work that it is impossible to match exactly old nnd new mortar. 20. DENIED. Plaintiff ordercd Defendant to install the bricks in a "half bond" pattern and this was the pattem installed by the Defendant. 21. DENIED. It is expressly DENIED that more than twenty five (25%) ofthc brick laid by the Defendant are defective. It is expressly DENIED that the bricks contain any manufacturing defects or that the Defendant is responsible for the quality of the bricks since the Plaintiff personally selected the brick style. By way offunher explanation, the bricks installed by Defendant meet all specifications of ASTM C216, Grade SW, Type FBS and are not defective in any manner. 22. DENIED AS STATED. Defendant did nottellthc Plaintiff he would return on January 11, 1999 to finish laying brick around the garage of the existing structure or that he would pour repair the sidewalk in the spring. 23. DENIED AS STATED. It is DENIED that the contract between the parties required the Defendant to lay brick on the front of the garage. It is ADMITTED that the contract required one (I) brick pillar to be repaired. It is DENIED that any brick or mortar needed to be cleaned at this time. It is DENIED that the drain pipe from the foundation to the street was not 4 installed. Thc drain pipe from thc foundation to thc strect had been installed by Defendant. The sidewalk was not rcpaired becausc thc 1'laintiO' ordercd the Defendant 00' the property and indicatcd hc was not going to makc thc final paymcnt duc undcr the contract. 24. DENIED AS STATED. Plaintiff ordered the Defendant 00' his property but refuscd to permitthc Defendant to rcmove his cquipmcnt. Defendant was compelled to securc a police escort to retum and obtain his equipmcnt. 25. DENIED. Paragraph 25 of Plaint ill's Amended Complaint is a conclusion oflaw to which no rcsponse is required. If a response were required it is expressly DENIED that any act of the Defendant constitutes a material breach of the parties' contract. 26. DENIED. Paragraph 26 of Plaintiffs Amended Complaint is a conclusion of law to which no response is required. If a response were required it is expressly DENIED that any act of the Defendant has caused the PlaintiO'to suffer any economic loss. It is further DENIED that any work performed by the Defendant needs to be redone. WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss with prejudice Count I of Plaintiffs Amended Complaint for failure to state a cause of action. Count II 27. DENIED. If a response were required Defendant incorporates by reference his response to ~lthrough ~26 as though fully set forth. 28. DENIED. Plaintiff selected the actual bricks installed on Plaintiffs structure. Plaintiff selected the mortar color which was actually installed on Plaintiffs structure. By way of further explanation, Defendant has ascertained that the bricks used on Plaintiffs structure are not 5 .. .' . 50. Follnwing Counterclaim Plaintill's demand lor final payment on January 13. 1999, Counterclaim Defendant filed the present lawsuit on or about March 12, 1999. 51. Countcrclaim Plaintiff has complcted all work undcr the contract and is due the additional sum ofS3.450.00 oncc a credit of$550.00 is dcducted from the outstanding balance or $4,000.00. The SSSO.OO credit is for the brickwork which was not completed following Counterclaim Defendant's refusal to permitthc Counterclaim Plaintiff to complcte this work. 52. Counterclaim Defendant's present lawsuit was filed in an effort to avoid paying the remaining balance due Counterclaim Plaintiff. 53. Counterclaim Dcfcndant knows that both the brick manufacturer and an independent laboratory have certified the brick used on the structure as complying with all industry standards and that the bricks are free from dcfects. 54. Counterclaim Defendant had no just cause to exclude the Counterclaim Plaintiff from the job site. 55. Counterclaim Defendant unilaterally breached the parties' contract by excluding Counterclaim Plaintifffrom the job site and failing to pay the final payment of $3.450.00. 9 . .. . WHEREFORE. Counterclaim Plaintiffrequcsts this Honorable Court to award thc sum of Thrce Thousand Four Hundred Fifty and 00/100 ($3.4S0.00) Dollars plus intcrest and court costs as well as any other relicfil dcemsjust against Countcrclaim Defendant. BY: even owe qu e 619 Bridge Street New Cumberland. PA 17070 (717) 770-1277 Supreme Court J.D. 62063 Attomey for Defendant Date: June 13,2000 Certificate of Service I hereby certify that on the datc set forth below a true and correct copy of the foregoing document was served upon all counsel of record via postage prepaid, first class United States Mail addressed as follows: William C. Felker, Esquire P.O. Box 1401 Camp Hill, P A 1700 I ~ BY: // S en ow , squire ;: 019 Bridge Street New Cumberland, P A 17070 (717) 770-1277 Supreme Court J.D. 62063 Attorney for Defendant Date: June 13,2000 10 >- If> '- 1'- C r:; " ". , .,") , ..;; , , -1; , ::1: i . ... . .' ;j . i ., " .. , :.2 " c'") .) ., , U -.:.....~ '. , - " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA HARRY G. BANZHOFF, III, Plaintiff, vs. : No, 99-1466 Civil Term LLOYD E. GEESMAN Defendant, : CIVIL ACTION-I,A W : JURY TRIAL DEMANDED RESPONSE TO DEFENDANT'S NEW MATTER AND ANSWER TO DEFENDANT'S COUNTERCLAIM AND NOW, COMES, the above-named Plaintiff by and through his attorney, William C. Felker, files this Response to Defendant's New Matter and Answer to Defendant's Counterclaim, sets forth and answers as follows: RESPONSE TO NEW MATTER 33. DENIED. The bricks which were installed, by Defendant, on the structure at 350 North 25'h Street, Camp Hill, PA 17011 were not the bricks Plaintiff selected from samples provided by Defendant. 34. DENIED. Plaintiff was never provided with any mortar samples. By way of further answer, Defendant informed Plaintiff that he has picked the mortar and that the mortar would match. 35. DENIED. It is specifically denied that Plaintiff was ever informed that the brick manufacture had certified that the bricks installed met all industry standards including ASTM C216, Grade SW, Type FBS and proof thereof is demanded at time of trial. By way of further answer, Plaintiff believes that the brick used by Defendant, on the structure, was in fact brick that had been rejected for defects and failing to meet industry standards. 36. DENIED. It is specifically denied that Plaintiff was ever informed that an independent laboratory had certified that the bricks installed met all industry standards. including ASTM C216, Grade SW, Type FBS and proof thereof is demanded at time of trial. By way of further answer, Plaintiff believes that the brick used by Defendant, on the structure, was in fact brick that had been rejected for defects and failing to meet industry standards. 37. DENIED. The terms of Exhibit "A" clearly indicates that the balance of the contract is to be paid when all work is completed. Defendant to date has not completed the brickwork on the front of the existing structure/addition, has not cleaned the brick and mortar. has not finished the drain pipe from the foundation to the street, has not replaced the sidewalk and has refused to correct his errors. By way of further answer, Defendant was paid more than the sum due under the terms of the contract. 38. DENIED. Plaintiff is retired from the Commonwealth of Pennsylvania Department of Revenue and is currcntly engaged in the pan-time busincss of sales and use tax consulting. 39. DENIED. II is specifically denied that Plaintiff operates any business out of the structure that was expanded under the terms of Exhibit .. A ". By way of further answer, it is averred thac an addition of approximately 2,Soo square fect was constructed at Plaintiffs home (primary residents) located at 350 North 25"' Streec, Camp Hill, Cumberland County, Pennsylvania, which includes a master bedroom suite of approx. 900 sq. ft. a kitchen, dining and living area of approx. 750 sq. ft. and a den above the garage of approx. 740 sq. fl. By way of further answer, Defendant provided no goods or services, under the terms of Exhibit "A", related to the construction of the den above the garage. 40. DENIED. Defendant provided no goods or services, under the terms of Exhibit "A", related to the construction of the den above the garage. 41. No answer is required to the extent that the averment of paragraph 41, of Defendant's Answer with New Matter and Counterclaim to Plaintiffs Amended Complaint, states a conclusion to law. With regard to any factual allegations of paragraph 41, of Defendant's Answer with New Matter and Counterclaim to Plaintiffs Amended Complaint, the same are deemed DENIED. It is spccifically denied that the contract that forms the basis for Count II was not primarily for personal, family or household purposes. By way of further answer, it is averred that an addition of approximately 2,500 square feet was constructed at Plaintiffs home (primary residents) located at 3S0 North 25"' Street, Camp Hill, Cumberland County, Pennsylvania, which includes a master bedroom suite of approx. 900 sq. ft. a kitchen, dining and living area of approx. 750 sq. ft. and a den above the garage of approx. 740 sq. ft. By way of further answer, Defendant provided no goods or services related to the construction of the den above the garage. 42. DENIED. To the contrary, Plaintiff had been informed that 2B stone was best for drainage and that 2A stone was best suited for packing. For this reason, Plaintiff specifically required the use of 2B stone in the terms of Exhibit "A". 43. ADMITTED. 44. ADMITTED. By way of further answer, had Defendant properly constructed the foundation, the drain field and the slope of the crawl space two drains would have been more than sufficient. By way of further answer, the drains were only put in as a precautionary measure and under the terms of Exhibit" A" the foundation was not supposed to leak. WHEREFORE, Plaintiff Harry G. Banzhoff, III respectfully requests this Court to enter judgment against Defendant Lloyd E. Geesman in an amount exceeding $25,000.00 for compensatory damages, together with punitive damages and treble damages, costs of this action, reasonable attorney's fees and such other damages as this Court shall deem just and proper. SO. DENIED. Counterclaim Defendant lik'd Ihe prcsent action against Counterclaim Plaintiff on March 12. 1999, following Counterclaim Plaintiffs refusal to return to the job site and complete <III unlinished work. SI. DENIED. Counterclaim Plaintiff to date has not completed the brickwork on the front of the existing structure/addition, has not cleaned the brick and monar, has not finished the drain pipe from the foundation to the street, has not replaced the sidewalk, and has refused to correct his errors. By way of further answer, after reducing the contract 10 $2S,4S0.OO and taking into account that Counterclaim Plaintiff was paid the sum of $8,000.00 on or about March 31, 1998, the sum of $10,000.00 on or about June 19, 1998 and, although not required by the terms of exhibit" A" the sum of $4,000.00 on or about December 18, 1998. After calculating the payments the sum of $3,450.00 remains not $4,000.00. By way of further answer, Counterclaim Plaintiff avers in paragraph SO and SI, of Defendant's Answer with New Mauer and Counterclaim to Plaintiffs Amended Complaint, that he made a demand for final payment and that Counterclaim Plaintiff has completed all work under the contract, and then in paragraph SI, of Defendant's Answer with New Malter and Counterclaim to Plaintiffs Amended Complaint, avers that there was still unfinished brickwork. By way of further answer, Counterclaim Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averment of a $SSO.OO credit and proof thereof is demanded at the time of trial. '. 52. DENIED. The filing of the action by Counterclaim Defendant again.~t Counterclaim Plaintiff was the result of Counterclaim Plaintiffs breach of the terms of the contract between Counterclaim Defendant and Counterclaim Plaintiff. 53. DENIED. It is specifically denied that Counterclaim Defendant has any knowledge that the brick used on the structure had been certified, by anyone, meets all industry standards and is free from defects and proof thereof is demanded at the time of trial. By way of further answer Counterclaim Defendant believes that the brick used by Counterclaim Plaintiff on the structure was in fact brick that had been rejected for defects and failing to meet industry standards. 54. DENIED. Counterclaim Defendant never excluded Counterclaim Plaintiff from the job site. By way of further answer, Counterclaim Plaintiff refused to return to the job site to complete all unfinished work. 55. No answer is required to the extent that the averment of paragraph 41, of Defendant's Answer with New Matter and Counterclaim to Plaintiff's Amended Complaint, states a conclusion to law. With regard to any factual allegations of paragraph 41, of Defendant's Answer with New Matter aud Counterclaim to Plaintiffs Amended Complaint, the same are deemed DENIED. By way of further answer, it was Counterclaim Plaintiff who unilaterally breached the contract by refusing to return to the jOb site and complete all unfinished work and by refusing to correct his errors. ". 'II 'h ~ ~. . , ~ , ~.~ , ,'= -4 ';'( ': j ') 'i 1 !" ...., i/;) :; ,'J,!. - r, n ..1 1_' 0 (J I , I :! " , "