Loading...
HomeMy WebLinkAbout99-02590 JOHN R. FENSTERMACHER, Plaintiff v. EDWARD TED NIGHTWINE, d/b/a NIGHlWlNE CONCRETE, Defendant '-., : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO. 99-2590 : CIVIL ACTION AT LAW : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Kindly re-issue the Writ of Summons in the above referenced matter. Attached please find a copy of the Writ of Summons originally issued April 30, 1999. The Defendant can be served at the following address: 602 State Street West Fairview, PA 17025 DATED: June 3, 1999 Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. By: >- ~ 0; ..::1 7" i'" co 5~ wr~ .-) _. '- ~7 ()(~, ~ ();.~ ::;:;: -~ p,:-. :'-2~ ....- c>E: 6\{. .S '~)~~ I .. ..- 1.1.1'. rcz - I.UW E=' L!.I :5 L._,.. n) 0.. i--- -, ...; L._ m :5 0 0"\ C..:> , Commonwealth of Pennsylvania County of Cumberland John R. Fenstermacher VI. Court of Conuno:l Pleas Edward Ted Nightwine c/b/a Nightwine Concrete P. O. Box 6654 Harrisburg, Pa. 17112 No. .99.~259.0__CLVIL...xEEM._____________ 19____ 1n _ f::A 'ltL l!~t;i.Qr:!: J...!l.!'l_ _ _ _ _ _ _ _ _ __ _____________ To -Edwimi.:red-Ni..gllOOne__rl/-b/a.!>lighl;w.ine Concrete You are hereby notified .hat JOJ]1_B._JEe~z:________________________.________________________________________________ the Plaintiff . h~ commenced an action in ----____.___..ciYil_Law_________________________________ against you which )'OU are required to defend or a default judgment may be entered against you. ... - " f ,- .'\ ",', ." ,".,- ~. .'.... ~. I ,." .. R'L'''''' I ..', ,...I'i I" /~ . It1(' j" ~'...' ~ .: ~ i ~ -,:=' ........1..1.. 1 '\'c"" ., -...' ,- J I~. '" ~ , . -, . t' .... "1" I'l'-.n In T,......I;.........,:I... l.,:;~~.:....'r. ,,':':'.; ,!, ," .'~. n 'f i"7\....... Ii . 't-, _'.1.. I' . "-', ,,,, ';I'r: !",~: ut ,'~ij Cwn ;,1 ~r1r."'1. Pc. r:'I~. ..3. f'~. rJdY ol~~ 1;~ . )'.or () 'iI'I"ft, I{ , , ,/ > Protnonot:. . _ _ _ u __ __ _ !:urt..is _R._.Long. ____ _ __ _ __ _ _________ Prothonotary (SEAL) Date __.hP.r..u_J~L__m___________ 19__99 By --c;Il~-~--~~~----------------- Deputy . .~: ~ r.: (l~ni ,-,-, lie.l /Me! ~ J cs@ '''''''''L" 1 1.~~ ~ 1~~ (J\lm\l,lns~Q \~ )(YI~,,(\5"3\?'tl bb\ \"I \01 , , , , en - , I ~ ~ ~ a cl "" If'l ~ ~ "" , ~ I I , , I , , , , j " 8! ....., +>, U. <>;, , ...;i ....., >, ...~I U' , , , . , , I . 0' &l 10 ...... .0 ...... '0 N (IJ ...; c ...; ~~ ~ .c:1-I . tn tJ ""1' fO 'r-! C' Ln 0.. Z 0'" tJ \0 ~ ~.~sj 'P. ~ ..~ [a.c: 0 t ~.~. <U ~z"":x: It'I It'I '00 i-l is.... 1! . D: ...; u 0' . ~&J~8! Q)"'2 '0 +> >..::l 0'10 (1) f...!.~ L.(~ ID~E-<il'? ri.Gl+>en..... enuOl . . !O'~ \0 D: :.: l>l r.: c.><:lt'I~r::: .c:i-l.....~..... otU.-l f' I"'):E U'1 .._ 1-1 1! u ~ (IJ +> en c & = 'N ~ El ~ en ; . D: .e o .., . , , , , I I , , , , , , I I , !~ 's '- i< , , , I , , , , , , , , , , -'" .. t , i I I , ! . JOHN R. FENSTERMACHER, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO. 99-2590 : CIVIL ACTION AT LAW : JURY TRIAL DEMANDED v. EDWARD TED NIGHTWINE, d/b/a NIGHTWINE CONCRETE, Defendant COMPLAINT AND NOW COMES the Plaintiff, John R. Fenstermacher, by and through his attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Complaint as follows: 1. Plaintiff, John R. Fenstermacher, is an adult individual residing at 100 Green Ridge Road, Mechanicsburg, PA 17055. 2. Defendant, Edward Ted Nightwine is an adult individual, current address unknown. 3. Defendant Nightwine owns and operates a sole proprietorship, Nightwine Concrete, with an address for operating business at PO. Box 6654. Harrisburg, PA 17112. 4. Nightwine Concrete is in the business of concrete subcontracting and swimming pool installation. 5. On or about July 8,1998, the parties entered into an agreement to furnish and install concrete decking and the installation of a swimming pool at Plaintifrs newly constructed residence. A copy of the Agreement is attached hereto as Exhibit "A" and is hereby incorporated by reference. .. . 6. The agreed upon consideration for the selvices to be provided by Nightwine Concrete was Thirty Thousand Two Hundred Eighty and 00/100 ($30,280.00) Dollars which included all material for the pool. 7. The Agreement provided that the work be commenced on July 15, 1998, and be completed within twenty days thereafter, subject to weather constraints, and availability of materials. 8. In reliance upon the Agreement, and because Defendant could not purchase the material for the pool, Plaintiff purchased approximately $20,000 for components of the swimming pool, including, but not limited to the filtration system, the heating system, the lighting fixtures, all piping, shimmers, the pool liner vacuums solar cover, winter cover and all hardware. 9. In addition, the parties entered a verbal contract to have other concrete work done on the premises. 10. Shortly after commencing construction of the swimming pool and the concrete decking, Defendant and his employees abandoned the job, leaving it uncompleted. 11. Defendant returned for one day in November of 1998, attempting to complete some of the concrete work and to fill the pool with water. 12. However, the concrete work was not completed nor was the pool filled with water. ~ 13. Defendant failed to cover the swimming pool or otherwise winterize it in any way before the winter of 1998-1999 leaving it open to the elements. 14. Via a letter dated January 27, 1999, Plaintiff requested that Defendant contact him with regard to completion of the swimming pool, but the Defendant made no effort to complete the pool. A copy of that letter is attached hereto as Exhibit "S" and incorporated by reference. 15. In the spring of 1999, Plaintiff had several subcontractors inspect the swimming pool and concrete work on the premises, and found: a) that due to the failure of Defendant to winterize/cover the pool, many of the pipes were broken and/or damaged; b) that although the heating and filtration systems were on site, neither system was connected nor operable; c) the concrete decking was cracking because expansion joints had not been cut in when the concrete was poured and the concrete was not sealed properly; d) the pool liner leaked necessitating repair and complete installation; e) the components and pool equipment which was not installed, including the winter cover, had been damaged or destroyed due to winter weather; f) the swimming pool installation remained uncompleted; 3 .. . g) Several components of the pool which had been paid for by Plaintiff were missing; and h) The concrete decking has discoloration and fading due to improper installation. 16. Via a letter dated April 20, 1999, Plaintiff was notified of the damage and condition of the swimming pool, and was again given the opportunity to repair the damage and complete the installation. A copy ~f the letter is attached hereto as Exhibit "e" and is incorporated by reference. 17. Defendant, through counsel, responded to Plaintiff's letter, basically denying Plaintiffs claims. 18. In a letter of response dated April 30, 1999, Plaintiff reiterated the list of damages, reiterating the history of the transaction, and for a third time, requested that the damages be paid for and the swimming pool completed within ten days. Upon completion thereof, Plaintiff agreed to make payment subject to deductions for delay, damages, and out of pocket expenses. A copy of the letter is attached hereto as Exhibit "0" and is incorporated by reference. 19. Defendant, through counsel, responded on May 21,1999, claiming that any litigation instituted by Plaintiff would be frivolous and threatening litigation. A copy of the letter is attached hereto as Exhibit "E" and is incorporated by reference. 20. Plaintiff responded via letter, dated May 28, 1999, offering \0 have Defendant's counsel view the site and for a final time offering Defendant the 4 . 28. The parties entered into a valid written Agreement for Defendant to install a swimming pool and surrounding concrete work and for Plaintiff to compensate Defendant for such services, as well as a verbal agreement for additional concrete work to be performed on the premises. 29. In reliance on the written Agreement and because of Defendants' inability to purchase the materials for the pool, Plaintiff paid for approximately $20,000 worth of equipment and swimming pool components. 30. Defendant failed to install the swimming pool or complete the agreed upon work in a workmanlike manner, constituting a material breach of the Agreements. 31. Plaintiff stood ready, willing and able to comply with the terms of the Agreements for over nine months, giving Defendant numerous opportunities to complete the work, despite the fact that the Agreements required completion within twenty days. 32. Due to Defendant's breach, Plaintiff has suffered damages including the delay in enjoyment of the swimming pOOl, the replacement of stolen or damaged items. and cost of completk:-n of the swimming pool. WHEREFORE, Plaintiff resp~ctfully requests that this Honorable Court enter judgment for the Plaintiff and against Defendant and award all damages, fees, costs and other such relief as this Honorable Court deems fair and just. ThEI amount in G a. Payment for materials at time of order $10,000.00 b. Upon completion of pool walls and deck 8,000.00 c. Upon completion of project 12,300.00 5. This Agreement shall be controlled by the laws of the Commonwealth of Pennsylvania; and sole jurisdiction for any dispute arising hereunder shall be the Court of Common Pleas of Cumberland County. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, hereunto set their hands and seals the day and year first above wri~ten. ~ ~-DK~ Ted Nightwine -- EcIw~rd Ted Nlghtwlne Pager 912-1076 P.O. Box 6654 Harrisburg, PA 17112 Fenstermacher & Associates Attn: John Fenstermacher 22 X 44 Mountain Lake Style Pool 2 sets walk out Bteps wi rail. Spa with overflow to pool 30 mill vinyl liner Vermiculite - cement bottom 6 returns, 2 skimmers 2 H.P. Pump Hurricane cartridge filter or D.E. (choice) 2" flex PVC plumbing Automatic pool cleaner Vacuum - Pole hose head Chemicals - test kit Solar blanket CA.&. ~(.~\ Automatic timer, Automatic clorinator Fiber optic pool lights Fiber optic perimeter -lights 400,000 BTU Gas Heater 8 foot stamped concrete deck Spring type winter cover Pool water ~ S~~v..(:t\~ -\v k~J<.. Total Price ............ $30,280.00 ,':~ >:,'.' :' ::, ',i,., ',:'/::' ,i :::: <~ "':;"':'~:,;jj),,,,:::i :::, "~;,:,, i.~,;:-~:, ;:,:.1,;: '~~,':~..:t:,"::!.~~>..;.::'<'> :::. :, :.;;;: .:;',:...:::." . >'..' ~'" '.. ' EXHIBIT "e" . .. FENSTERMACHER AND ASSOCIATES, P.C. ATIORNEYS AND COUNSELORS AT U\W T!I! JONAt fUPP !lOUfT April 30, 1999 ~ Spero T. Lappas, Esquire t VIII F^~ Law Office of Spero T. Lappas 205 State Street Harrisburg, PA 17101 RE: Fenstermacher v. Nightwine Dear Spero: ~ I received your letter of April 28, 1999, regarding Mr. Nightwine. It is apparent that you have not been provided the full story in this particular matter and I will reiterate it for the purposes of attempting to reach some resolution. r Mr. Nightwine was to have the pool completed and operational in August, 1998. To that end, I secured and paid for the entire physical elements of the pool ($20,000) in the summer of 1998. Despite that fact and having not completed the pool in a timely manner, he and his crew appeared sporadically and then left the premises in the fall of 1998 and did not return again until sometime in November, 1998, at which time he attempted to complete some of the concrete work and to fill the pool with water. He advised me that day that the pool would be filled with water but, instead, the water supply was stopped to the pool and the pool was not hooked up and was not made operational at that time. Since that time, neither Mr. Nightwine nor his employees returned to the site. Accordingly, $20,000 of materials that I already bought and paid for were sitting in my back yard without any cover and without any care during the winter months. Mr. Nightwine failed to cover the pool or winterize it in any respect and, based upon inspections I have currently had done, there are broken pipes which will necessitate removal of concrete and the pool liner must be replaced. The operation of the entire system, after being subjected to those kind of conditions, is completely suspect. Accordingly, my investment of $20,000 may very well be worth literally nothing at this point in time. r liAHH.l51U.JH(:i oll.lel: In" UNCOU." S11<I1:r liAIUUSmmG, I'A 17112 (71r, !.4f..Kt,Jl) niE .IONAS I!UJ~' lIousr [II]!", lAST l"HINI)ll: HOAI> MLCI tANICSUUHG, Pl:NN~~\TVANI^ 17WI!. ('7171 (191 !,400 IA.X ('117) hl}I.!.441 OCLAN Cfn' 011 'leT. :l6 I!AV AVI::.NlJl: OL"l.AN crn', NJ nM22(. ir.c)f~1 :~91-l~4(,1 . " Spero T. Lappas, Esquire Page 2 April 30, 1999 As a result, I am not willing, in any respect, to provide a large amount of money to Mr. Nightwine until the pool is operational. I did not hear from Mr. Nightwine and he did not answer any pages from November until March. Accordingly, I sent him a letter in March, asking him to remove the debris on the property. A week went by and I did not hear from him, other than his men showing up suddenly one morning to remove materials. If you would see the debris that is scattered across the back yard, you would understand that it is difficult to tell construction materials from boxes of pool materials. Accordingly, I advised his workmen to leave the premises. I have since had independent investigations done of the pool and all of them have led me to the conclusion that I have a potential disaster on my hands because of the manner in which it was constructed. It is also obvious, based upon the current inspections, that last fall Mr. Nightwine made the error of digging the pool too deep, stretching the liner and causing the liner to leak. He knew this fact, but failed to disclose it to me until I had independent inspectors look at it this spring. I am willing to permit him to come in and correct the errors, as I mentioned in my previous letter to him; however, when I did not hear from him last week, as requested, I felt it necessary to protect myself. Accordingly, I am enclosing to you, as his counsel, a Writ of Summons that has been filed in Cumberland County against him. In an effort to try to resolve the matter, if Mr. Nightwine wants to come in and correct every problem that exists currently and complete the pool, I am willing to make payment, subject to adjustment for the delays and out-of-pocket expenses I have incurred to date if all of the items are completed no later than ten (10) days from this date. I ask for a third party to make determination as to the operation and sufficiency of the job. If that outside party makes that determination, I will make payment to Mr. Nightwine, subject to the deductions aforementioned as well as approximately $1,000.00 in legal fees that is owed to my firm currently. If this is satisfactory, I ask that you advise me of the date that he wishes to commence work so that this matter can be concluded. As to your request to place any money in escrow, frankly, at the present time I have essentially $20,000.00 sitting in my ground in escrow. Accordingly, placing more money into a project that is wrought with problems, undue delay and unworkmanlike product, does not merit consideration. I am enclosing an Acceptance of Service. Kindly execute it and return it to me. If I do not hear from you within the ten (10) days, I will move forward and attempt to , ., . ~,;;~~.. ~~......:,~,!,,'''' ,,; "'. ~:;t~ #o.,7:J" ,..;~.,.,...;-' - ~:-;.,.~t r.~... .-_. FENSTERMACHER AND ASSOCIATES, P.C. AITORNEYS AND COUNSELORS AT LAW TilE JOIlAl RUPP II0UlE JOHN R. FENSTERMACHER. ESQUIRE DIRECT DIAL 1717) 691-5420 May 28, 1999 'MEMBER PENNSYLVANIA ANO NE~ JERSEY BAR VIA FACSIMILE 238-4826 f \ \... €. Spero T. lappas, Esquire Law Office of Spero T. Lappas 205 State Street Harrisburg, PA 17101 RE: Fenstermacher v. Nightwine Dear Spero: I have just returned to the office today and am reviewing your letter of May 21, 1999. It is quite apparent that we have two completely different stories as to what is and has been done on the property. Unfortunately, I am the one who has viewed the damage, together with subcontractors. Your client has not been on the property for over six months. Therefore, how can he come to the conclusion that the work can be done in one week. If, indeed, it will only take one week, why did I not hear from you in a timely manner as I requested in my leiteI' of April 3D, 1999? If the concrete can be repaired, the leaks corrected and all the matters concluded in a week's time, then I stand ready, willing and able to make payment, subject to deductions for out-at-pocket expenses, including paying material men who received non-sufficient funds checks from Mr. Nightwine and also for the delay from last fall until the present time and our fee. Since you have not seen the work, I find it difficult for you to assess the work that was done there. I have now had several contractors out that support my position as far as the work is concerned. There are leaks, stretched liner, cracked concrete and incomplete installation. However, I am not placing any money in escrow except in my own escrow account That is an unreasonable demand of you at this point in time, given the money that is already sitting in my back yard, as I mentioned before. If you wish to examine the premises, I am happy to oblige you, but I am not going to wait any longer than Wednesday of next week to hire another subcontractor to finish this job. It is unreasonable tor me to wait tor the delay in your response in this matter of almost a month. HA.RRJSBUHG orner::: lOB UNCOLN ST1U:I:T l-WUUSBURG, PA 17112 (717) ~4!'.o-8610 THE JONAS RUPP HOUSE 5115 EAST TRINDlL ROAD ME.CHANICSBURG. PENNSYLVANIA 17055 1717) 691-5400 FAX (717) 691 5441 OCEAN ern" OAleE. 26 BAY AVDiUt: OCLAN OlV. NJ 08226 (609) 391.9461 . .. . Spero T. Lappas, Esquire Page 2 May 28, 1999 . -. Clearly that does not indicate to me a willingness to proceed to resolve this matter. My damages mount daily as the use of the pool is impossible. As to any legal fees, we can provide you with entire backup as to work that was done on behalf of Mr. Nightwine in collection efforts for deduction from the ultimate amount and our many unanswered requests for information and payment. I stand willing to permit, as I outlined in my earlier letter, the completion of the project by Mr. Nightwine and the verification of the correctness of the installation by a disinterested third party. r can think of no more reasonable offer. If this is acceptable to you, I expect that you would contact me by next Wednesday and I would further request Mr. Nightwine commence the work next Thursday and continue working on the property until the matter is fully completed. At three intervals during the repair, I will make payment to him of an amount acceptable to that third party. Frankly, Mr. Lappas, the only thing I have wanted in this entire matter is to have the pool completed, as originally contemplated, in a good, timely and workmanlike manner. If it is done, I am happy to make the payment, subject to the problems that I have encountered since Mr. Nightwine began the work. Since you did not return my Return of Service, we will have the Writ of Summons reissued and have your client served. I will extend the courtesy to you until next Tuesday to advise me whether you will accept service on his behalf. If not, we will have the Sheriff serve Mr. Nightwine. In the interim, please feel free to escalate this matter in any way you see fit. I have attempted to resolve this, but you and your client somehow miss the fact that he breached the contract 9 long months ago by not completing the pool in a timely manner. If he wants to spend money instead of being paid for work, let us proceed. Please direct all further correspondence to my office rather than my home, as my last letter indicated. Thank YOll. Very truly yours, FENSTERMACHER AND ASSOCIATES, P.C. crs By: (bJ 1 IJ /~ D n MlJ( f'I f1 (/ hM /flt.d. ~ Fenstermacher ' ~ >- 0' 0:; - ~l I-~ C.:.:: r. ~~;'> ~.~.~ ~. ...:.:. C) .~. tJ-J f;. . I . L: , ( r .. C" ~', C) (.:,.'\ '- r !.:;: .-', .;, r..J The Law Offices of SPERO T. LAPPAS 205 State Street Post Office Box 808 Harrisburg, Pennsylvania 17103-0808 (717) 238-4286 By: SPERO 'r. LAPPAS, Esquire Pa. Supreme Court identification no. 25745 ATTORNEY FOR PLAINTIFFS - JOHN R. FENSTERMACHER Plaintiff IN THE ~OURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. : 99-2590 EDWARD TED NIGHTWINE, c/b/a NIGHTWINE CONCRETE Defendants : JURY TRIAL DEMANDED ~ PRELIMINARY OBJECTIONS -ll- ANO NOW, this ~ day of , 2000, comes the reliminary Objections Defendant, Edward Nightwine, makes pursuant to the Pennsylvania RUles of Civil Procedure, respectfully representing as follows: I. Preliminarv Obiection Attac~ing the Form or Service of a Writ of Summons. 1. As the Plaintiff admits in his Complaint (paragraph 21 and 22) the Writ of Summons was issued on April 30, 1999, reissued on June 3, 1999 and was never served on the Defendant. 2. Thereafter, undersigned counsel filed a Praecipe for Rule to File a Complaint which was granted. The Praecipe was issued upon the Plaintiff and the Plaintiff filed a Complaint. 3. To the knowledge of the Defendant, this Complaint has never been served by the Sheriff upon the Defendant. 4. No one has filed an Acceptance of Service for the - The Law Offices of SPERO T. LAPPAS Page 1 Complaint. 5. Regardless of whether the Summons or the Complaint is considered as original service, tne manner of service in this case does not comply with Rule 402 of the Pennsylvania Rules of CiVil Procedure. WHEREFORE, the Plaintiff requests that this Preliminary Objection be granted. II. Motion for More Soecific Pleading 6. At paragraph 9 of the Complaint, Plaintiff contends that "the parties entered a verbal contract to have other concrete work done of the premises." This averment is repeated at paragraph 28. 7. The Complaint fails to specify the nature of this "additional concrete work." a. Paragraph 23 of the Complaint indicates that Plaintiff aVers that Defendant or his agents removed several items "purchased by Plaintiff for the SWimming pool." These alleged items are not fully described or listed. To the contrary, some items are listed but the Plaintiff admits that his claim is "not limited to" these items. A full list and description of any alleged wrongfUlly removed items should be included in the Complaint. WHEREFORE, the Plaintiff should be required to file a more specific complaint. III. DEMURE~ 9. At paragraph 34 and 35 of the Complaint, the Plaintiff contents (at Count II) that the Defendant's alleged actions The Law Offices of SPERO T. LAPPAS Page 2 violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. ~201-1 ~. ~. 10. 'fhe provisions of this Act do not apply to claims such as the claim made by the Plaintiff in his Complaint. 11. Plaintiff has not alleged sufficient facts to state a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. WHEREFORE, Plaintiff demurs to Count II of the Complaint. IV. MOTION TO STRIKE COUNT II 12. All other paragraphs of these preliminary objections are hereby incorporated into this Preliminary Objection by reference thereto. 13. Because the Plaintiff's Complaint does not state a cause of action under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, Count II of the Complaint should be stricken. WHEREFORE, the Defendant requests Count II be stricken. v. MOTION FOR MORE SPECIFIC PLEADING 14. All other paragraphs of these Preliminary Objections are hereby incorporated into this Preliminary Objection. WHEREFORE, because the Plaintiff does not allege sufficient facts to state a claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, in the alternative to the striking or granting of a demur to Count II, Plaintiff should be ordered to file a more specific Complaint. The Law Offices of SPERO T. LAPPAS Page 3 6. The agreed upon consideration for the services to be provided by Nightwine Concrete was Thirty Thousand Two Hundred Eighty and 00/100 ($30,280.00) Dollars which included all material for the pool. 7. The Agreement provided that the work be commenced on July 15, 199a, and be completed within twenty days thereafter, subject to weather constraints, and availability of materials. 8. In reliance upon the Agreement, and because Defendant could not purchase the material for the pool, Plaintiff purchased approximately $20,000 for components of the swimming pool, including, but not limited to the filtration system, the heating system, the lighting fixtures, all piping, shimmers, the pool liner vacuums solar cover, winter cover and all hardware. 9. In addition, the parties entered a verbal contract to have other concrete work done on the premises which included the installation of concrete on an exterior deck at the home and in an exterior breezeway as well as "stamping" the surface of both areas of concrete work. 10. Shortly after commencing construction of the swimming pool and the concrete decking, Defendant and his employees abandoned the job, leaving it uncompleted. 11. Defendant returned for one day in November of 1998, attempting to complete some of the concrete work and to fill the pool with water. 2 12. However, the concrete work was not completed nor was the pool filled with water. 13. Defendant failed to cover the swimming pool or otherwise winterize it in any way before the winter of 1998-1999 leaving it open to the elements. 14. Via a letter dated January 27,1999, Plaintiff requested that Defendant contact him with regard to completion of the swimming pool, but the Defendant made no effort to complete the pool. A copy of that letter is attached hereto as Exhibit "S" and incorporated by reference. 15. In the spring of 1999, Plaintiff had several subcontractors inspect the swimming pool and concrete work on the premises, and found: a) that due to the failure of Defendant to winterize/cover the pool, many of the pipes were broken and/or damaged; b) that although the heating and filtration systems were on site. neither system was connected nor operable; c) the concrete decking was cracking because expansion joints had not been cut in when the concrete was poured and the concrete was not sealed properly; d) the pool liner leaked necessitating repair and complete installation; 3 e) the components and pocl equipment which was not installed, including the winter cover, had been damaged or destroyed due to winter weather; f) the swimming pool installation remained uncompleted; . g) Several components of the pool which had been paid for by Plaintiff were missing; and h) The concrete decking has discoloration and fading due to improper installation, 16. Via a letter dated April 20, 1999, Plaintiff was notified of the damage and condition of the swimming pool, and was again given the opportunity to repair the damage and complete the installation. A copy of the letter is attached hereto as Exhibit "C" and is incorporated by reference. 17. Defendant, through counsel, responded to Plaintiffs leller, basically denying Plaintiffs claims. 18. In a lelter of response dated April 30, 1999, Plaintiff reiterated the list of damages, reiterating the history of the transaction, and for a third time, requested that the damages be paid for and the swimming pool completed within ten days. Upon completion thereof, Plaintiff agreed to make payment subject to deductions for delay, damages, and out of pocket expenses. A copy of the letter is attached hereto as Exhibit "0" and is incorporated by reference. .1 '. _. -""-,,,-"~....',...' - 19. Defendant, through counsel, responded on May 21, 1999, claiming that any litigation instituted by Plaintiff would be frivolous and threatening litigation. A copy of the letter is attached hereto as Exhibit "E" and is incorporated by reference. 20. Plaintiff responded via letter, dated May 28, 1999, offering to have Defendant's counsel view the site and for a final time offering Defendant the opportunity to repair the damage and complete the swimming pool. A copy of the letter is attached hereto as Exhibit "F" and is incorporated by reference. 21. A Writ of Summons was issued on April 30, 1999, and reissued on June 3, 1999. 22. Service of the Writ was attempted by the Sheriff at Defendant's last known physical address, but was unsuccessful as Defendant did not reside therein. 23. It is believed and therefore averred that Defendant or Defendant's employees, agents or servants removed several items purchased by Plaintiff for the swimming pool, including, to the best of Plaintiffs knowledge at this time: the solar reel for the solar cover, a photon generator for the pool lighting system, a cutting tool for the fiber cable (lighting), a pool vacuum and certain hardware. 24. Further, Plaintiff paid a concrete supplier for concrete to Plaintiffs' premises to whom Defendant had tendered a check in the approximate amount of $500.00, which was returned for insufficient funds. 25. On or about July 1999, Plaintiff engaged several subcontractors to complete the swimming pool installation and repair the damages. S Edward Ted Nlghtwlne Page'r912-1076 P.O. Box 6654 Harrisburg, PA 17112 Fenstermacher & Associates Attn: John Fenstermacher 22 X 44 Mountain Lake Style Pool 2 sets walk out steps w/rai1s Spa with overflow to pool 30 mill vinyl liner Vermiculite - cement bottom 6 returns, 2 skimmers ' 2 H.P. Pump Hurricane cartridge filter or D.E. (choice) 2" flex PVC plumbing Automatic pool cleaner Vacuum - Pole hose head Chemicals - test kit Solar blanket c..& ~c.<.\ Auto~tic timer, Automatic clorinator Fiber optic p~ol lights Fiber optic perimeter ,lights 400,000 BTD Gas Heater 8 foot stamped concrete deck Spring type winter cover Pool water ~ 4~v.-,t\ ~ 4v k~J.<.. Total Price ............ $30,280.00 Mr. Ted Nightwine Page 2 April 20, 1999 In an effort at some accord in this matter, I am asking that you return to my property and repair all cracks in the concrete by pouring or installation of expansion joints and the pool made usable so that this matter may be concluded. Absent your retum by April 26, 1999, I will have no choice but to proceed legally against you for the damages to my property from the leaking of thewater as well a:> the damages related above. Before you venture onto our property, I want telephone notice directly to me of what your intentions are at the present time. I await your reply. Very truly yours, FENSTERMACHER AND ASSOCIATES, P.C. By: John R. Fenstermacher crs ee: Northeast Pool Supply bee: ClealWater Pool Care, Inc. Spero T. Lappas, Esquire Page 2 April 30, 1999 As a result, I am not willing, in any respect, to provide a large amount of money to Mr. Nightwine until the pool is operational. I did not hear from Mr. Nightwine and he did not answer any pages from November until March. Accordingly, I sent him a letter in March, asking him to remove the debris on the property. A week went by and I did not hear from him, other than his men showing up suddenly one morning to remove materials. If you would see the debris that is scattered across the back yard, you would understand that it is difficult to tell construction materials from boxes of pool materials. Accordingly, I advised his workmen to leave the premises, I have since had independent investigations done of the pool and all of them have led me to the conclusion that I have a potential disaster on my hands because of the manner in which it was constructed. It is also obvious, based upon the current inspections, that last fall Mr. Nightwine made the error of digging the pool too deep, stretching the liner and causing the liner to leak. He knew this fact, but failed to disclose it to me until I had independent inspectors look at it this spring. I am willing to permit him to come in and correct the errors, as I mentioned in my previous letter to him; however, when I did not hear from him last week, as requested, I felt it necessary to protect myself. Accordingly, I am enclosing to you, as his counsel, a Writ of Summons that has been filed in Cumberland County against him. In an effort to try to resolve the malter, if Mr. Nightwine wants to come in and correct every problem that exists currently and complete the pool, I am willing to make payment, subject to adjustment for the delays and out-of-pocket expenses I have incurred to date if all of the items are completed no later than ten (10) days from this date. I ask for a third party to make determination as to the operation and sufficiency of the job. If that outside party makes that determination, I will make payment to Mr. Nightwine, subject to the deductions aforementioned as well as approximately $1,000.00 in legal fees that is owed to my firnl currently. If this is satisfactory, I ask that you advise me of the date that he wishes to commence work so that this matter can be concluded. As to your request to place any money in escrow, frankly, at the present time I have essentially $20,000.00 sitting in my ground in escrow. Accordingly, placing more money into a project that is wrought with problems, undue delay and unworkmanlike product, does not merit consideration. I am enclosing an Acceptance of SelVice. Kindly execute it and return it to me. If I do not hear from you within the ten (10) days, I will move forward and attempt to THE LAw OFFICES OF SPERO T. WPAS 205 ST^TE STREET POST OFFICE BOX 808 H,\RRISBURC. PENNSYlVAN,^ 17108-0808 SPERO T. UJ>P~ mw E. AJUmO hIlU. CODE 717 TUFJ>HONE 2.311-4286 FAX 2.38'_ Hay 21, 1999 John Fenstermacher 100 Green Ridge Road Mechanicsburg, PA 17055 In re: Nightwine v. Fenstermacher Our File No. PC049903 Dear John: I have your letter of April 30, 1999 and I do not feel that many of your allegations can be taken seriously. I have reviewed it line by line with Mr. Nightwine and, suffice to say, the history of this matter d.oes not support your views. Not only do you mischaracterize and misstate the work that Mr. Nightwine did complete at your home, but you are wrong about having paged him from "from November until March", the letter you wrote him was not in March, 1999 but rather on January 27, 1999 and when his men came to your premises (the date of which was February 15, 1999) they were not there to remove materials but rather to continue with the project. You threw them off your premises, which does not seem to be the conduct of a homeowner who is anxious to have a jOb completed. Neither Mr. Nightwine nor I feel that we can rely on your good faith in adjusting your debt for "delays and out-of-pocket expenses". You certainly have not incurred $1,000 in legal fees to yourself or anyone else. If you proc.:!ed with this frivolous litigation, we will seek damages for wrongful use of civil process. I am repeating the demands which I made in my April 28th letter. If we do not have a deal by May 26, I will institute a lawsuit and serve deposition notices, request for production, and a motion for leave to conduct an onsite inspection of your real estate. Frankly, assuming in substantially week in order I do not understand the position which you are this case. You must know that the work is finished and that it would take approximately one to complete your SWimming pool. If, rather than Tht: LAW OFFICES 'OF SPERO T. LAPPAS j" I I " ,I' John Fenstermacher May 20, 1999 Page -2- allow the work to be done and pay what you owe Mr. Nightwine, you insist on engaging in this f.rivolous litigation, we will have no choice but to pursue our claim for the money which is already owed to Mr. Nightwine. STLlpas . , . . . . FENSTERMACHER AND ASSOCIATES, P.C. AlTORNEYS AND COUNSELORS AT U\W TilE JOllA( tUff IiOUtE JOHN R, FENSTERMACHER, ESQUIRE DIRECT DIAL (717) 691.5420 May 28, 1999 . MEM&EI PENNSYLVAHIA AHD NEW JEISET IIAI VIA FACSIMilE 238-4826 ~\\-€. Spero T. Lappas, Esquire Law Office of Spero T, Lappas 205 State Street Harrisburg, PA 17101 RE: Fenstermacher v. Nightwine Dear Spero: I have just returned to the office today and am reviewing your letter of May 21, 1999. It is quite apparent that we have two completely different stories as to what is and has been done on the property. Unfortunately, I am the one who has viewed the damage, together with subcontractors. Your client has not been on the property for over six months. Therefore, how can he come to the conclusion that the work can be done in one week. If, indeed, it will only take one week, why did I not hear from you in a timely manner as I requested in my letter of April 3D, 19991 If the concrete can be repaired, the leaks corrected and all the matters concluded in a week's time, then I stand ready, willing and able to make payment, subject to deductions for out-of-pocket expenses, including paying material men who received non-sufficient funds checks from Mr. Nightwine and also for the delay from last fall until the present time and our fee. Since you have not seen the work, I find it difficult for you to assess the work that was done there. I have now had several contractors out that support my position as far as the work is concerned. There are leaks, stretched liner, cracked concrete and incomplete installation. However, I am not placing any money in escrow except in my own escrow account. That is an unreasonable demand of you at this point in time, given the money that is already sitting in my back yard, as I mentioned before. If you wish to examine the premises, I am happy to oblige you, but I am not going to wait any longer than Wednesday of next week to hire another subcontractor to finish this job. It is unreasonable for me to wait for the delay in your response in this matter of almost a month. I<WUUSOURO Dn"lCl3 106 UNCOLN ST1l.Q.;,,. tWVUSIlURG, M 17112 1717) 645..8610 n IE JONIIS RI.,~'I' IIOI.,'SE 5115 CAST TIUNDLE ROAD Mca~ICSBUnG, PCNNSVUlANJA 17055 (7171 WI-5400 FAX (717) (,91 f..441 ocr-.AN c:rry orner: 26 RAY Avt:NUt: ocr.AN CITY, NJ 05226 ((.o?1 391.94Gl . . . .. . . .... . Spero T. Lappas. Esquire Page 2 May 28, 1999 Clearly thaI does not indicate to me a willingness to proceed to resolve this matter. My damages mount daily as the use of the pool is impossible. As to any legal fees, we can provide you with entire backup as to work that was done on behalf of Mr. Nightwine in collection efforts for deduction from the ultimate amount and our many unanswered requests for information and payment. I stand willing to permit, as I outlined in my earlier letter, the completion of the project by Mr. Nightwine and the verification of the correctness of the installation by a disinterested third party. I can think of no more reasonable offer. If this is acceptable to you, I expect that you would contact me by next Wednesday and I would further request Mr. Nightwine commence the work next Thursday and continue working on the property until the matter is fully completed. At three intervals during the repair, I will make payment to him of an amount acceptable to thaI third party. Frankly, Mr. Lappas, the only thing I have wanted in this entire matter is to have the pool completed, as originally contemplated, in a good, timely and workmanlike manner. If it is done, I am happy to make the payment, subject to the problems that I have encountered since Mr. Nightwine began the work. Since you did not return my Return of Service, we will have the Writ of Summons reissued and have your client served. I will extend the courtesy to you until next Tuesday to advise me whether you will accept service on his behalf. If nQt, we will have the Sheriff serve Mr. Nightwine. In the interim, please feel free to escalate this matter in any way you see fit. I have attempted to resolve this, but you and your client somehow miss the fact that he breached the contract 9 long months ago by not completing the pool in a timely manner. If he wants to spend money instead of being paid for work, let us proceed. Please direct all further correspondence to my office rather than my home, as my last letter indicated. Thank you. Very truly yours, FENSTERMACHER AND ASSOCIATES, P.C. crs BY:~ 1 12. .I:; I./IMlJt fY a (/ 1wL/.eJ:LJ2 John R. Fenstermacher JOHN R. FENSTERMACHER, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO. 99-2590 : CIVIL ACTION AT LAW : JURY TRIAL DEMANDED v. EDWARD TED NIGHTWINE, d/b/a NIGHTWINE CONCRETE, Defendant PRAECIPE TO DISCONTINUE WITHOUT PREJUDICE TO THE PROTHONOTARY: Please mark the above-referenced action DISCONTINUED WITHOUT PREJUDICE. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. DATED: (10:> B_~ :~Ohn R. Fenstermacher ( .-' ~upreme Court I.D. #29940 .J 5115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Plaintiff