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HomeMy WebLinkAbout99-06105 (2)IN THE COURTOF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEAIJII 01' PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICFI Plaintiff V3. GREGG. A. GEIIRET Defendant No. CY-A15s 9 NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served. by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SIIOULD TAKL• TI IIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT IIAVii A LAWYER OR CANNOT AFFORD ONE. GO 1'0 OR T'E1.EPHONI':'I'I1E OFFICIs SE I' FORT[[ BELOW '1'O FIND OUT WHERE YOU CAN GET LEGAL IIELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle. Pennsylvania Phone Number (717) 249.3166 IN'n IE COURT OF COMMON PLEAS 01" CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIIIALICI I ) Plaintiff ) VS. ) GREGG. A. GEI IRET ) Defendant ) 0 9. 6 ie 1' CGn-'t' 7a.... No. Cv-o1S5-S9 COMPLAINT IN ASSUMPSIT AND NOW. comes Plaintiff and sets forth the following facts in support of his claim against the Defendant: 1. Plaintiff, Leonard A. Mihalich, is an individual who resides at 1065 Orrs Bridge Road, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 2, Defendant, Gregg A. Gchrct, is an individual who resides at 2820 Waltonville Road, Hummelstown, Pennsylvania, 17062, and is the owner and operator of a home improvement company. 3. In the latter part of 1994, the parties entered into a contract, in Cumberland County, wherein defendant agreed to install a new roof, insulation and siding, and Plaintiff would pay Defendant approximately Twelve Thousand ($12,000.00) Dollars. Plaintiff has fulfilled his obligation to make full payment. Plaintiff has misplaced his copy of the contract, therefore, is unable to attach it as an exhibit. 4. In March or April of 1994, an average windstorm tore off some of the siding. Plaintiff discovered that the siding was not properly secured because the nails were improperly placed; they were not nailed into the studs. 5. Defendant admitted to Plaintiff on several occasions that the nails were too short to adequately secure the siding and they were not nailed in proper locations. 6. Defendant admitted under oath in District Court that he used the wrong nails and did not nail them into the studs. 7. Defendant breached the contract by failing to perform the installation of the insulation and siding in a proper and workmanlike manner that is acceptable in the trade. i.e., he used nails that were too short and the nails were positioned improperly.1Thc breach of contract occurred at the time the siding was installed. 8. The Defendant sold Plaintiff a defective product in that the nails were too short and not fit for the intended purpose, namely to adequately secure the siding, therefore. Defendant breached the implied warranty of fitness for the intended purpose, thus, Defendant breached the contract. 9. The Defendant's breach of contract will cause Plaintiff to replace the torn-off siding, which was damaged, and to remove all of the other siding and replace it with nails of proper length which arc placed into the studs. sae copy of quality of workmanship report attached hereto. 10. Cost of replacing siding that was damaged is $ 100.00 , cost of removing and replacing all of the other siding is $ 3,281.0p WHEREFORE, Plaintiff requests judgment against Defendant in the amount of $ 3,381.00 with costs and interest. Respectfully submitted, ?? onard A. Mihnlicl Plaintiff CENTRAL ITNN 110 11: INSPECTIONS, INC. RO. [lox 343 63 Old Nlill Raid NW, 11V New Cumberland, PA 17070 Dillshurg, PA 17019 y.'~ _ u,naw^ !,24 717-774-3450 717-132.7105 C H 1 tw una:a INC %%%%?clmnel%%01k.c,nn ('1'111 Tall free 877.777.6222 fax 717.502.0729 Date: October 19, 1999 To: Leonard A. Mihalich 1065 Orrs Bridge Road Mechanicsburg, PA 17055 From: Jerry Zimmerman Regarding: Siding and related work at 1065 Orrs Bridge Road, Mcchanisburg, PA Ohiectiv On October 16, 1999 I inspected the above property only for the purpose of assessing the quality of workmanship relative to the installation of vinyl siding. Observ a ions Approximately 60 square feet of siding was missing front the rear wall of the house primarily from the second story. This permitted a visual inspection of the insulation sheathing and nailing applications. Furring strips were secured to the block wall at 24" centers on the first story. I inch Rboard was placed between the furring strips. Since the furring strips are approximately 3/4 inches thick and the Rbourd is 1 inch thick, there was a gap Icfl between the siding and the furring strip of approximately 1/4 inch. Three nails in approximately 20 feet under a deck were not driven straight and/or were not in the center of the slot of the siding. On the second story of the rear wall I inch Rboard was installed over 1/2 inch Cclotcx insulation board. Studs were spaced 16 inches on center. Random inspection or nailing application revealed that approximately 10% of the nails did not penetrate the studs in this area or were just striking the edge of the studs. Siding on the north and south sides of the house was installed in the same manner as the rear. Two pieces of siding were Idled Isom the south side Ibr visual inspection underneath. Three nails were found to be securing one 12 foot siding panel and nails were spaced 4 feet apart in another panel. Siding on the second story was loose in numerous areas as evidenced by bulges. Nail length was 2 inches determined by a random pulling of nails. Siding on the third or attic level of the north and south sides exhibited greater mid more extensive bulging than on the lower levels. Approximately 50°0 of the siding was very loose. EXHIBIT A Siding on the front wall appeared more secure than the other house walls. Panels under the second story windows were very loose. No sill trim was used to secure it. The corner past on the southeast corner of the house was pushed in at the top. It appeared as if it was intentionally pushed in so that the rake board trim would overlap it at the lop. But, the trim was no longer overlapping it resulting in a gap at the top. Corner posts on other corners were scaled at the top with no evidence of attempts to overlap the rake board trim over the top of it. The service entrance cable on the north wall was not secure to the wall. Clamps were loose. and the screws were not penetrating the tarring strip or stud. Ana sis?tnd Rccamcndations Our client, Mr. Mihalich, indicated that Alside and the manufacturer ofthe vinyl siding applied to this home. Alside recommends to "nail every 16" if possible ". It' furring strips were not already in place when this contractor installed the siding, furring strips should have been placed 16" on center instead of the 24" as observed. This would provide sufficient nailing surfaces to ensure secure attachment to exterior walls. The 1/4 inch gap lefl between the siding and the furring strip is not recommended. A 1/4 inch tiller would be preferred. If the nails used penetrate the furring strips at Icast 3/4 inch, this gap may not present a problem. Nails must be positioned in the center of the panel flange and driven straight. All nails found not to meet this requirement should be replaced. All nails must penetrate studs or furring strips in order to hold the siding securely in place. Any loose nails or nails that missed the studs or furring strips must to inserted correctly. Since a random inspection of siding on the first story on the north and south side walls revealed nail spacing of 48 inches in approximately 151/4, of the panels, it is recommended that all the siding be lifted or removed and reinstalled correctly. Nails pulled from the second story siding were 2 inches long. The nails must pass through approximately 1 5/8 inches of material before they penetrate the studs. This would result in a 3/8 penetration into the stud. Alside states. "Nails must be long enough to penetrate 3/4 " into a solid underlayment." The underlayment would be the stud of tiering strip. Therefore, nails used to hang this siding apparently would penetrate only half the distance recommended by the manufacturer. This is unacceptable and must be corrected. It is obvious that the loose and bulging siding on the upper stories of this house is primarily due to improper nail length. I recommend that the nails be replaced with ones that are at least 2 1/2" in length. Undersill trim should be installed under windows. This would prevent loose siding under the front windows. Corner post should be capped or scaled to prevent penetration of water behind it. Standard installation procedures normally do n,H involve placement of cor er posts behind rake board trim as it was at the southwest corner of this house. 'this also was not consistent with the other corners of the same house where they were capped and sealed. Service entrance cables must be reinstalled after siding installation is completed. This cable was very loose. The wcatherhead and cable clamps apparently were not adequately secured to the studs when it was replaced. The cable must be secured properly. Conclusions Numerous violations of standard trade practice and the manufacture's installation recommendations were noted. These include improper spacing of furring strips, nail spacing, nail placement and installation methods. It is recommended that changes be undertaken to ensure that siding installation conforms to the manufacturer's guidelines. Local building codes may also require adherence to these. Y esidc t Building Inspector ,,.` " .. , OV. -19' MUD Q5. 09 ...{LSIDE-WINDOW ORDER TEL:900 991 6160 P. 001 ?--- ? S• ??rf•saz•cr-?2y ?• J,?rn? ?-,;,f?uirxa? ?S Choosing a faslener. Vinyl siding and accessories can be fas- tened in three ways: Nails. Either conventional or power-driven nails are accept. able. Whichever you choose, be certain to use aluminum, gal- vanized steel, cadmium-coated or other corrosion-resistant nails. Nails must be long enough to penetrate a/•" into a solid underlaymenr. A IV--" nail ;s best for most applications, although you may want to use a 2" nail for residing projects and a 2 U:" nail (minimum) if you'll be nailing siding tluough backerboard. Nail heads should be at least %/s" in diameter, with a shank of 'h" diareter. Staples. In general, the same guidelines apply to staples. Either conventional or power-driven staples are acceptable if they are corrosion-resistant. In addition, staples must be at least 16 gauge semi-tlarened to an elliptical crass-section (see illustration). The staple crown should be at least °/W wide and the legs must be long enough to p5.:,ietrare a solid sub strate at least •a/+". Screws. Screws are used when siding is attached to walls built nn metal studs. Use k3, corrosion•resisrant, self-tapping screws with a round washer head. Screws should be long enough to penetrate metal studs at least 3/4". 1.2 Estimating material requirements. Siding and sof itestfmater. Determining how much siding and soffit you'll need requires (irle more than basic math. The key is to divide the surface area of a home into basic geome is shapes. then calculate the total square footage. The illustrations below make it easy. Walls (excluding gables). Calculate the square footage of a rectangle: (Height) x (width) (surface area) Repeat for all wall areas. Gable ends. Calculate the square footage of a triangle: (Height +l') x(1/:width) a (surface area) Repeat for other gables. 7 OGT. -19' 99MEI OA 09 ...ALSIDE-WINDOW ORDER -Pre" ' f TEL:800 992 6160 P.002 Positioning fasteners. The key to positioning fasteners properly is to allow space for expansion and contraction. You can achieve that goal by following these guidelines: When installing horizontal siding oraccessoriest Position nails (or other fastener) in the center of nailing slots. On new construction, position nails over studs, 16" on center. Do not skip studs. If it's impossible to position nails every 16", call "cle customer service for specific nailing recommenda- tions. (The number is 1-800.92-2•6009.) On remodeling projects, A every 16"1f possible. Be sure the substrate ,you're nailing into is even and solid. See page 19 for more derails. Men installing vertical siding or accessories: Position the first nail for other fastener) in the uppermost ^> i nailing slot so the panel or accessory hangs from the fastener. ISce illustration.) The remaining fasteners are positioned in the center of nailing slots. l When positioning vertical siding or accessories, remember to allow more room for expansion at the low end (see page 13). When inswitingsof/it: Position fasteners in center of nailing slog, spaced 16" apart. If using Charter Oak'" reinforced vinyl soffit, nails can be placed •I4" apart. The panel's added rigidity will prevent sagging. 16 COUNTY OF CUMBERLAND ) COMMONWEALTH Of PENNSYLVANIA ) AND NOW, this _ day of d9X F L-4 , 1999, I, LEONARD A. MIHALICI1. affirm that the facts set forth in the foregoing Complaint are true upon my personal knowledge and belief. understand that my statements are made subject to 18 PA. Cons. Stat. §4904, providing for criminal penalties for unswom falsification to authorities. Leonard A. Mihalic IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH VS. Plaintiff GREGG. A. GEHRET Defendant 9?.G/0 .5- 6?-','l VerM No. Cu-9255-99 NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief 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 CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania Phone Number (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH ) Plaintiff ) VS. ) GREGG. A. GEHRET ) Defendant ) v9.4/03' Cza-r..... No. -CV-0265-4A COMPLAINT IN ASSUMPSIT AND NOW, comes Plaintiff and sets forth the following facts in support of his claim against the Defendant: 1. Plaintiff, Leonard A. Mihalich, is an individual who resides at 1065 Orrs Bridge Road, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 2. Defendant, Gregg A. Gchret, is an individual who resides at 2820 Waltonville Road, Hummelstown, Pennsylvania, 17062, and is the owner and operator of a home improvement company. 3. In the latter part of 1994, the parties entered into a contract, in Cumberland County, wherein defendant agreed to install a new roof, insulation and siding, and Plaintiff would pay Defendant approximately Twelve Thousand (512,000.00) Dollars. Plaintiff has fulfilled his obligation to make full payment. Plaintiff has misplaced his copy of the contract, therefore, is unable to attach it as an exhibit. 4. In March or April of 1997, an average windstorm tore off some of the siding. Plaintiff discovered that the siding was not properly secured because the nails were improperly placed; they were not nailed into the studs. 5. Defendant admitted to Plaintiff on several occasions that the nails were too short to adequately secure the siding and they were not nailed in proper locations. 6. Defendant admitted under oath in District Court that he used the wrong nails and did not nail them into the studs. 7. Defendant breached the contract by failing to perform the installation of the insulation and siding in a proper and workmanlike manner that is acceptable in the trade; i.e., he used nails that were too short and the nails were positioned improperly.111e breach of contract occurred at the time the siding was installed. 8. The Defendant sold Plaintiff a defective product in that the nails were too short and not tit for the intended purpose, namely to adequately secure the siding, therefore, Defendant breached the implied warranty of fitness for the intended purpose, thus, Defendant breached the contract. 9. The Defendant's breach of contract will cause Plaintiff to replace the tom-off siding, which was damaged, and to remove all of the other siding and replace it with nails of proper length which are placed into the studs. See copy of quality of workmanship report attached hereto. 10. Cost of replacing siding that was damaged is $ 100.00 ; cost of removing and replacing all of the other siding is $ 3,281.00 WHEREFORE, Plaintiff requests judgment against Defendant in the amount of S 3,381.00 with costs and interest. Respectfully submitted, eonani A. Mihalic PlaintifT HIGH, ',M Ima (r?iL 63 Old Mill Road 17070 Dillsburg, PA 17019 717.432-7lnS www.peno wo rk.co m/CPI H/ Toll Free 877-777-6222 Fax 717-502-0729 t HI I. Date: October 19, 1999 To: Leonard A. Mihalich 1065 Orrs Bridge Road Mechanicsburg, PA 17055 From: Jerry Zimmerman Regarding: Siding and related work at 1065 Orrs Bridge Road, Mcchanisburg, PA Obicctivc On October 16, 1999 I inspected the above property only for the purpose of assessing the quality of workmanship relative to the installation of vinyl siding. Observations Approximately 60 square feet of siding was missing from the rear wall of the house primarily from the second story. This permitted a visual inspection of the insulation sheathing and nailing applications. Furring strips were secured to the block wall at 24" centers on the first story. 1 inch Rboard was placed between the furring strips. Since the furring strips arc approximately 3/4 inches thick and the Rboard is 1 inch thick, there was a gap Icft between the siding and the furring strip of approximately 1/4 inch. Three nails in approximately 20 feet under a deck were not driven straight and/or were not in the center of the slot of the siding. On the second story of the rear wall 1 inch Rboard was installed over 1/2 inch Celotex insulation board. Studs were spaced 16 inches on center. Random inspection of nailing application revealed that approximately 10°/a of the nails did not penetrate the studs in this area or were just striking the edge of the studs. Siding on the north and south sides of the house was installed in the same manner as the rear, Two pieces of siding were lifted from the south side for visual inspection underneath. Three nails were found to be securing one 12 foot siding panel and nails were spaced 4 feet apart in another panel. Siding on the second story was loose in numerous areas as evidenced by bulges. Nail length was 2 inches determined by a random pulling of nails. Siding on the thud or attic level of the north and south sides exhibited greater and more extensive bulging than on the lower levels. Approximately 50% of the siding was very loose. CENTRAL PENN HOME INSPECTIONS, INC. P.O. Box 343 New Cumberland, PA 717-774-3450 EXHIBIT A Siding on the front wall appeared more secure than the other house walls. Panels under the second story windows were very loose. No sill trim was used to secure it. The corner post on the southeast corner of the house was pushed in at the top. It appeared as if it was intentionally pushed in so that the rake board trim would overlap it at the top. But, the trim was no longer overlapping it resulting in a gap at the top. Corner posts on other comers were scaled at the top with no evidence of attempts to overlap the rake board trim over the top of it. The service entrance cable on the north wall was not secure to the wall. Clamps wcrc loose, and the screws were not penetrating the furring strip or stud. Analysis and Recommendations Our client, Mr. Mihalich, indicated that Alside and the manufacturer of the vinyl siding applied to this home. Alside recommends to "nail every 16" if possible ". If furring strips were not already in place when this contractor installed the siding, furring strips should have been placed 16" on center instead of the 24" as observed. This would provide sufficient nailing surfaces to ensure secure attachment to exterior walls. The 1/4 inch gap left between the siding and the furring strip is not recommended. A 1/4 inch filler would be preferred. If the nails used penetrate the furring strips at least 3/4 inch, this gap may not present a problem. Nails must be positioned in the center of the panel flange and driven straight. All nails found not to meet this requirement should be replaced. All nails must penetrate studs or furring strips in order to hold the siding securely in place. Any loose nails or nails that missed the studs or furring strips must be inserted correctly. Since a random inspection of siding on the first story on the north and south side walls revealed nail spacing of 48 inches in approximately 15% of the panels, it is recommended that all the siding be lifted or removed and reinstalled correctly. Nails pulled from the second story siding were 2 inches long. The nails must pass through approximately 15/8 inches of material before they penetrate the studs. This would result in a 3/8 penetration into the stud. Alside states, "Nails must be long enough to penetrate 314 " into a solid underlayment." The underlaymcnt would be the stud of furring strip. Therefore, nails used to hang this siding apparently would penetrate only half the distance recommended by the manufacturer. This is unacceptable and must be corrected. It is obvious that the loose and bulging siding on the upper stories of this house is primarily due to improper nail length. I recommend that the nails be replaced with ones that arc at least 2 1/2" in length. Undcrsill trim should be installed under windows. This would prevent loose siding under the front windows. Comer post should be capped or scaled to prevent penetration of water behind it. Standard installation procedures normally do not involve placement of comer posts behind rake board trim as 3 it was at the southwest corner of this house. This also was not consistent with the other comers of the same house where they were capped and sealed. Service entrance cables must be reinstalled nttcr siding installation is completed. This cable was very loose. The wcatherhead and cable clamps apparently were not adequately secured to the studs when it was replaced. The cable must be secured properly. n s' Numerous violations of standard trade practice and the manufacture's installation recommendations were noted. These include improper spacing of furring strips, nail spacing, nail placement and installation methods. It is recommended that changes be undertaken to ensure that siding installation conforms to the manufacturer's guidelines. Local building codes may also require adherence to these. IYFAn?. .WYk i ?N+4N P esidc t Building Inspector OCT. -I9? 991T1'E) 08:09 , ALSIDE-WINDOW ORDER TEL:800 991 6160 P.001 c>7 ?Sa • ' 56 -0=F2 y Choosing a fastener. Vinyl siding and accessories can be fas- tened in three ways: Nails. Either conventional or power-driven nails are accept- able. Whichever you choose, be certain to use aluminum, gal- vanized steel, cadmium-coated or other corrosion-resistant nails. Nails must be long enough to penetrate 1/4" into a solid underlavmenr. A It/s" nail is best for most applications, although you may want to use a 2" nail for residing projects and a 2 4t" nail (minimum) if you'll be nailing siding through baekerboard. Nail heads should be at least Ys" in diameter, with a shank of I/s•' diameter. Staples. In general, the same guidelines apply to staples. Either conventional or power-driven staples are acceptable if they are corrosion-resistant. In addition, staples must be at least 16 gauge semi-tlartened to an elliptical cross-section (see illustration). The staple crown should be at least 7hi" wide and the legs must be long enough to penetrate a solid «h strate at lease •44". Screws. Screws are used when siding is attached to walls built on metal studs. Use #g, corrosion-resistant, self-capping screws with a round washer head. Screws should be long enough to penetrate metal studs ac least a/+". 12 Estimating material requirements. Siding and s6& estimates. Determining how much siding and soffit you'll need requires little more than basic math. The key is to divide the surface area of a home into basic geometric shapes. then calculate the total square footage. The illustrations below make it easy. Walls (excluding gables), Calculate the square footage of a rectangle: (Height) x (width) (surface area) Repeat for all wall areas, Gable ends. Calculate the square footage of a triangle: (Height, I') x (t/: width) e (surface area) Repeat for other gables. 7 OV. -19: 991TVEI 0809 -ALS I DE-W I NDOII. ORDER . ,i TEL:800 992 6160 P. 001 Positioning fasteners. The key to positioning fasteners properly is to allow space for expansion and contraction. You can achieve char goal by following these guidelines: Men installing horizontal siding oraccarsories., Position nails (or other fastener) in the center of nailing slots. On new construction, position nails over studs, 16" on center. Do not skip studs. If it's impossible to position nails every 16", C211 Alside customer service for specific nailing recommenda- tions. (The number is 1-800.912.6009.) On remodeling proiects, nail every 16"3f possible. Be sure the substrate you're nailing into is even and solid. See page 19 for more details. Men installing vertical siding or a=ssories. Position the fine nail (or other fastener) in the uppermost nailing sloe so the panel or accessory hangs from the fastener. ISee illustration.) The remaining fasteners are positioned in the center of nailing slots. When positioning vertical siding or accessories, remember to allow more room for expansion at the low end (see page 13). When installing soffit: Position fasteners in center of nailing slots, spaced 16" apart. If using Charter Oak'"reinforced vinyl soffit, trails can be placed •24" apart. The panel's added rigidiry• will prevent sagging. 16 COUNTY OF CUMBERLAND ) COMMONWEALTH OF PENNSYLVANIA ) AND NOW, this o?gk day of 4? , 1999, I, LEONARD A. MIHALICH, affirm that the facts set forth in the foregoing Complaint are true upon my personal knowledge and belief. I understand that my statements are made subject to 18 PA. Cons. Stat. §4904, providing for criminal penalties for unworn falsification to authorities. Leonard A. Mihalic M J s Q V ? ? aC ffi? z . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICII Plaintiff Vs. No. 99-6105 GREGG. A. GEHRET, trading as EASY SIDERS I IOME IMPROVEMENT COMPANY Defendant AMENDED COMPLAINT The attached amended complaint is filed pursuant to PA R.C.P. Rule 1033, and with the consent of counsel for defendant. Plaintiff, Leonard A. Mihalich, does hereby state that he sent a certified copy of the amended complaint to attorney for defendant. Jarad W. I landelman. Esquire. 11.0. Box 650. Hershey. PA. 17033.0650, by regular mail on the ?_ ay of ; ?f'l , 2000. Q .u(4 , ? «nard A. Mil ' i Pro Se, Plaintiff' le IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL. ACTION - LAW LEONARD A. MIHALICH Plaintiff VS. GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT COMPANY Defendant No. 99-6105 NOTICE TO DEFEND 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 amended 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 ajudgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief 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 CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania Phone Number (717) 249.3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTII OF PENNSYLVANIA CIVIL AC'T'ION - LAW (Arbitration) LEONARD A. MIHALICII Plaintiff VS. GREGO A. GEHRET, trading as EASY SIDERS HOME IMPROV1iMFNT COMPANY No. 99.6105 Civil Term Defendant AMENDED COMPLAINT AND NOW, comes plaintiff and presents an amended complaint setting forth facts in support of his original claim based on a breach of contract by Improper, negligent, defective installation of vinyl siding; by failing to install the siding according to the siding manufacturer's requirement, and usage and custom of the trade; and improper, defective installation of the electric service line and other electrical fixtures (as requested in defendant's preliminary objections, the averments arc set out with more specificity). This amended complaint also adds and joins plaintiff's claim under the "Unfair Trade Practice and Consumer Protection Law (73 P.S. Section 201, et seq.)L COUNT ONE 11. Paragraphs 1 through 9 of the original complaint, including the report of Jerry Zimmerman (attached to and incorporated in the original complaint) arc incorporated herein as though copied herein in their entirety. 12. Plaintiff purchased all the material used on the job from defendant, including but not limited to, the siding, nails and insulation. 13. Specifically, the defendant's acts of improper, negligent, defective installation of the vinyl siding areas follows: a) Nails that were not driven straight or missed the solid part of the stud or furring were not pulled out and replaced properly; b) Too few nails were used to secure the siding. They were not placed 16-inches apart, where possible. as required by the manufacturer of the siding and the custom and usage of the trade; C) Nails were not placed in the center of the nailing slot or positioned in the center of the panel flange as required by the manufacturer of the siding; d) None of the nails were long enough to penetrate the solid underlayment (studs or furring strips) % (three-quarters) of an inch as required by the manufacturer of the siding and as required by usage and custom of the trade; C) Trim was not used to properly secure the siding under the window; f) The rake hoard trim did not overlap the siding on the comer post, thus permitting water to penetrate behind the siding and damage the structure of the house; 1 See Gabriel v. 011nra. 543 A.2d 488 (I1a. Super. 1487) as precedent for such amendment. g) Furring strips and studs were placed twenty-four (24) inches "on center" instead of the required sixteen (16) inches "on center; h) In the installation, defendant created a one-quarter (1/4) inch gap between siding and the solid underlayment, which is contrary to the usage and custom of the trade; i) Electric service entrance cable was removed and improperly replaced. The weatherhead and cable clamps were not adequately secured, thus creating a serious safety hazard. The defendant did not use competent and certified electricians; j) Defendant did not comply with the requirements of the local code and building permit; k) Defendant used unskilled, untrained, incompetent, and uncertified employees to work on plaintiffs home, and failed to properly supervise these employees. 14. All of the above mentioned defects were created and existed at the time defendant installed the siding and the quality of defendant's work was below the standards of that agreed to verbally or in writing. I5. All of the above improper, negligent, defective and poor workmanship acts require all of the siding to be removed and replaced. Some of the siding has been damaged; some of the siding will be damaged during removal to the extent they cannot be used. The removal of the siding and replacement of some of the siding will result in an inferior quality of siding and installation. 16. Removal and replacement of the siding will cause some damage to the insulation. 17. The total damages caused by defendant's improper, negligent, defective, poor workmanship, and the necessity of replacing the siding constitutes a serious "Major Problem". I S. At all times in the business relationship between plaintiff and defendant, defendant held himself out as operating under the trade name of "Easy Siders Home Improvement Company", therefore plaintiff has amended the complaint to correct the name of the defendant and to conform to the averments in the pleadings. WHEREFORE, plaintiff demands judgment against Gregg A. Gchret, trading as Easy Sidcrs Home Improvement Company, in the amount of S-31 N6 7 "% COUNT TWO VIOLATION OF UNFAIR TRADE PRACTICE AND CONSUMER PROTECTION LAW (73. P.S. SUCTION 201, ET. SEQ.) 19. All of the pamgruphs in Count One of this amended complaint and the original complaint arc incorporated herein as though copied in their entirety. 20. Just before the parties entered into the contract and while defendant was viewing plaintiffs home and evaluating the proposed construction, defendant informed plaintiff of his extensive (since 1974) and capable experience in home improvement construction. At this time, he informed plaintiff that there was some type of one-year warranty. Plaintiff responded that in view of his inexperience in such contracts and because of the expenditure of 'twelve Thousand (S 12,000.00) Dollars, what if a serious "major problem" was discovered after the one-year period. Defendant stated he stands behind his work and he would take care of it without charge. 21. Defendant repaired a bulge in the siding approximately one year after the job was completed. This was after the warranty period. 22. Shortly after repairing the first bulge, a second bulge appeared in the same area and shortly after the second bulge appeared, the wind blew of a large portion of the siding. Defendant was informed of these incidents and he said he would take care of the damage. Defendant agreed to make the repairs after plaintiff completed construction of his patio. These incidents occurred after expiration of the warranty period. 23. Plaintiff notified defendant several times that his patio was completed, however, defendant did not respond until his letter of October 29, 1998, wherein he stated because of the expiration of the warranty period, there would be a charge for any repairs. 24. Since the defects mentioned above causing the damage and necessity of replacing the siding occurred at the time of construction and existed within the warranty period, the warranty period does not apply to plaintiffs claims. 25. The defects above mentioned were such that they could not be discovered by expected and normal observation by the homeowner; the defects are latent defects. 26. Because the defects above mentioned were latent defects, because of the lifetime warranty on the siding, because it is reasonable to expect the siding to remain on the dwelling for more than a year, a workmanship warranty of one year is unreasonable and void. 27. Because of the gross, outrageous, negligence and magnitude of defendant's poor workmanship, he knew or should have known the following before and at the time he installed the siding: a) The nails used to secure the siding were too short, too few and improperly placed to adequately secure the siding; h) The damage that did occur was an expected consequence of his defective installation: C) The latent defects would not be discoverable by normal observation within the warranty period of one year; d) The imposition of a vague warranty of one year. w All of the above circumstances created a likelihood of confusion or of misunderstanding and constituted fraudulent conduct within the meaning and scope of the "Unfair Trade and Consumer Protection Law." 28. Because defendant's defective construction was so grossly negligent and flagrant; because the defects were easily comprehended and recognizable by even persons inexperienced in home construction; because the defects were such that defendant knew or should have known of the seriousness of the defects and expected serious consequences of defendant's defective installation - the defendant's acts of construction are shocking, outrageous and intolerable. 29. The defendant's construction was inferior and below the standard of that agreed to verbally or in writing. WHEREFORE, plaintiff requests judgment against defendant in the amount of which is three times the actual damages of $ 11,65 0 plus punitive damages and attorney fees as permitted by law. Respectfully submitted, gio?Varld A. Mih 'ch, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWI;AI:I'H OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH ) Plaintiff ) VS. ) GREGO A. OEHRET ) Defendant ) COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA No. 99.6105 AND NOW, thisor day of ?A+ ..2 ay ,1, LEONARD A. MIHALICH, affirm that the facts set forth in the foregoing Amended Complaint are true upon my personal knowledge and belief. understand that my statements arc made subject to 18 PA Cons. Stat. §4904, providing for criminal penalties for unswom falsification to authorities. u conard A Lm }. =3 Ft F w _t{ ?t• ._ y? 4r a„l ti 1 LEONARD A. MIHALICH, Plaintiff V. GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT CO. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 99-6105 CIVIL TERM CIVIL ACTION - LAW NOTICE TO PLEAD To: Plaintiff, Leonard A. Mihalich and his attorney, Daniel M. Myshin, Esquire YOU ARE HEREBY NOTIFIED to file a written response to the Answer With New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, JAMES, SMITH, DURKIN & CONNELLY, LLP Dated: September 6, 2001 By: JARAD W. HANDELMAN, ESQUIRE Attorney I.D. #82629 P.O. Box 650 Hershey, PA 17033.0650 (717) 533-3280 Attorney for Defendant, Gregg A. Gchrct LEONARD A. MIHALICH, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 99-6105 CIVIL TERM GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT CO. Defendant : CIVIL ACTION - LAW DEFENDANT'S ANSWER WITH NF,W MATTER AND NOW, comes the Defendant, Gregg A. Gehret, trading as Easy Siders Home Improvement Company, by and through his attorneys James, Smith, Durkin & Connelly, LLP, and answers Plaintiffs Complaint and avers New Matter in response thereto as follows: 1. Admitted. 2. Admitted. 3. Denied. Plaintiffs characterizations of the contract between he and Defendant arc specifically denied. The contract between the parties speaks for itself and any attempt to alter the provisions of such contract are improper and denied. To the extent an answer is deemed necessary, the contract between Plaintiff and Defendant was for the provision of services, specifically the installation of siding on the Plaintiffs home. 4. Denied. The averments of paragraph four (4) relating to any alleged defect in the installation of the siding arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded. By way of further answer, Plaintiff's characterization of the alleged wind storm as "average" arc specifically denied and strict proof thereof is demanded at trial. 5. Denied. It is specifically denied that Defendant made any admission to Plaintiff as alleged in paragraph five (5). By way of further answer, to the extent Plaintiff avers that any condition alleged to have existed in paragraph five (5) was due to Defendant's workmanship, the averments arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 6. Denied. It is specifically denied that Defendant made any admission as alleged in paragraph six (6). By way of further answer, there is no transcription of the District Justice proceeding and Plaintiffs attempt to recreate the testimony without such transcription is improper. In addition, Defendant's appeal from the District Justice decision nullifies any decision made at such proceeding and reference to same is contrary to applicable Pennsylvania Rule of Civil Procedure. 7. Denied. The averments of paragraph seven (7) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 8. Denied. The averments of paragraph eight (8) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. To the extent deemed necessary, it is specifically denied that Defendant sold Plaintiff a defective product or that any warrant applicable to such alleged product is applicable to the transaction between Plaintiff and Defendant. 9. Denied. The averments of paragraph nine (9) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 10. Denied. The avcrments of paragraph tell (10) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. strict proof of any costs claimed by Plaintiff as damages is demanded. COUNT ONE 11. The answers set forth in paragraphs one (1) through ten (10) are incorporated herein by reference as if set forth in full. Responses to the incorporated paragraphs one (1) through ten (10) of the original Complaint arc more fully set forth above and arc incorporated herein by reference as if set forth in full. 12. Denied. The averments of paragraph twelve (12) arc conclusions of law to the extent requiring interpretation of the contract between Plaintiff and Defendant to which no responsive pleading is required and strict proof thereof is demanded at trial. By way of further answer, the contract between Plaintiff and Defendant was for services and not for the sale of products. 13. Denied. The avcrments of paragraph thirteen (13) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. (a) Denied. The avcrments of paragraph thirteen (13)(a) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial; (b) Denied. The avcrments of paragraph thirteen (13)(b) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. It is specifically denied that there was nay manufacturer requirements for the installation of siding at the time of the contract between Plaintiff and Defendant; (c) The avcnncnts of paragraph thirteen (13)(c) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. It is specifically denied that there was nay manufacturer requirements for the installation of siding at the time of the contract between Plaintiff and Defendant; (d) The averments of paragraph thirteen (13)(d) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. it is specifically denied that there was nay manufacturer requirements for the installation of siding at the time of the contract between Plaintiff and Defendant; (c) The averments of paragraph thirteen (13)(c) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial; (f) The averments of paragraph thirteen (13)(f) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial; (g) The averments of paragraph thirteen 03)(g) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial; (h) The averments of paragraph thirteen (13)(h) are conclusions of law to which no responsive pleading is required and strict proof thereof is demandcd at trial. It is specifically denied that any usage or custom of the trade was violated; (i) The avcnncnts of paragraph thirteen (13)(i) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial; 6) The avcnncnts of paragraph thirteen (13)0) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. It is specifically denied there was any applicable code or building requirements for the work being performed pursuant to contract between Plaintiff and Defendant; (k) The averments of paragraph thirteen (13)(k) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 14. Denied. The averments of paragraph fourteen (14) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial 15. Denied. The averments of paragraph fifteen (15) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 16. Denied. The avcnncnts of paragraph sixteen (16) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 17. Denied. The averments of paragraph seventeen (17) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 18. Admitted in pan; denied in part. It is admitted that Defendant was operating the business referenced in paragraph eighteen (18) at the time of the contract between Plaintiff and Defendant. As for the reasons for Plaintiff's amendment of his Complaint. Defendant is without sufficient information to admit or deny such avcmients and as such are denied. WHEREFORE, Defendant, Gregg A. Gehrct, trading as Easy Sidcrs Home Improvement Company, demands judgment in his favor and against Plaintiff, together with costs. M&T TWO UNFAIR TRADE. PRACTICE. AND CONSUMER PROTECTION LAW 19. The answers set forth in paragraphs one (1) through eighteen (18) are incorporated herein by reference as if set forth in full. 20. Admitted in part; denied in part. It is admitted that Defendant has extensive knowledge and practice in the home improvement industry as alleged. The remaining avcnnents of paragraph twenty (20) arc denied to the extent inconsistent with the parties' contractual agreement. The contract speaks for itself and any attempts by Plaintiff to alter the contract arc specifically denied and barred by the doctrine of parol evidence. To the extent Plaintiffs representations as to discussions with Defendant arc contrary to the contract or applicable law of warranty of workmanship, same are specifically denied. 21. Admitted. It is admitted that Defendant made numerous attempts to assist Plaintiff outside the scope of any applicable warranty. By way of further answer, 22. 23. 24. Defendant offered such assistance despite the fact Qtat at the time of Defendant's efforts or after it was discovered that problems with the siding about which Plaintiff was complaining resulted from his own conduct, and not from anything Defendant or his workman had done. Denied. The averments of paragraph twenty-two (22), specifically the representations and statements attributed to Defendant, are specifically denied. It is specifically denied that Defendant made any agreement to repair ongoing problems beyond any applicable warranty period, particularly for problems that were caused by Plaintiffs own conduct. By way of further answer, Plaintiffs own constriction on the home after the siding was installed caused, contributed, or resulted in the problems which Plaintiff now attributes to Defendant's workmanship. Denied. To the extent the averments of paragraph twenty-three (23) arc intended to suggest that Defendant had any obligation, warranty or otherwise, to repair the alleged siding problems, same are denied as conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. It is admitted that any applicable warranty coverage had expired, particularly due to the fact that Plaintiffs own construction on the home after the siding was installed caused, contributed, or resulted in the problems which Plaintiff now attributes to Defendant's workmanship. Denied. The averments of paragraph twenty-four (24) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 25. Denied. The averments of paragraph twcnty-five (25) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. By way of further answer. no defect was observed until Plaintiff's own conduct caused any defect with the siding of which he now complains. 26. Denied. Tltc averments of paragraph twcnty-six (26) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 27. Dcnicd. The averments of paragraph twenty-seven (27) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. Such denial is noted to be responsive to the remarks at the end of paragraph twenty-scvcn (27) in Plaintiffs Amended Complaint as well. Such averments arc also conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. (n) The avemtcnts of paragraph twcnty-scvcn (27)(a) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial; (b) Titc averments of paragraph twcnty-seven (27)(b) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial; (c) The averments of paragraph twcnty-scvcn (27)(c) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial; (d) The averments of paragraph twenty-seven (27)(d) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 28. Denied. The averments of paragraph twcnty-eight (28) arc conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 29. Denied. The averments of paragraph twcnty-eight (29) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. WHEREFORE, Defendant, Gregg A. Gchrct, trading as Easy Siders Home Improvement company, demands judgment in his favor and against Plaintiff, together with costs. NFW MATTF.R 30. The answers set forth in paragraphs one (1) through twenty-nine (29) are incorporated herein by reference as if set forth in full. 31. Plaintiff's Complaint fails to state a claim upon which relief can be granted. 32. Plaintiff's claims arc barred by the doctrine of parol evidence. 33. Plaintiffs claims arc barred as the alleged defects in Plaintiffs workmanship occurred beyond the term of any applicable warranty period. 34. Plaintiff's claims arc barred as the alleged defects in Plaintiff's workmanship are beyond the scope of any applicable warranty. 35. Plaintiff's claims arc barred as the alleged defects with the siding installed on Plaintiffs home by Defendant were caused in whole or in part by Plaintiff's own conduct, specifically the construction of home improvements such as patios and/or decks on the rear and/or side of Plaintiff's home that caused the problems of which Plaintiff now complains. 36. The allegations of Plaintiffs Complaint constitute nonfeasance, if anything, on the part of Defendant which is insufficient to state a claim under the UTPCPL. 37. There arc no written warranties between Plaintiff and Defendant and therefore $201-2(4)(xvi) of the UTPCPL does not apply. 38. Even as alleged by Plaintiff, there was no fraudulent or deceptive conduct on behalf of Defendant that could sustain a cause of action under the UTPCPL, any such alleged fraudulent or deceptive conduct being specifically denied. 39. Plaintiffs Amended Complaint fails to state a cause of action under the UTPCPL. 40. Before the protections of the implied warranty of fitness for a particular purpose attach, there must be a sale of goods. 41. The contract between Plaintiff and Defendant was for services, specifically Defendant's installation of siding on the Plaintiffs home. 42. Supplying of services is not a "sale" within the meaning of the UCC for purposes of determining whether a seller or product falls within the purview of the UCC and whether one may be liable for breach of warranty. 43. 77re contract between Plaintiff and Defendant is not governed by the UCC, and there is no implied warranty of fitness for a particular purpose applicable to the transaction. Accordingly, any alleged breach of such warranty cannot serve as the basis for Defendant's alleged breach of the contract between the parties. 44. There were no building codes applicable to the work being performed by Defendant on Plaintiff's home at the time of the rendering of the services. 45. There were no manufacturers' specifications for the installation of the siding on Plaintiff's home at the time the work was performed by Defendant. 46. Even had there been manufacturers' specifications, such specifications are advisory only and capable of modification at Defendant's discretion to fit the needs of a particular job. 47. The contract between Plaintiff and Defendant expressly permits modifications to any specification, the existence of any specifications at the time of the work being expressly denied, in the sole discretion of Defendant. 48. Modifications were necessary at the request of the Plaintiff and complied with by Defendant upon such request by Plaintiff. 49. All Defendant's work was done with the express approval of Plaintiff and under the constant supervision and inspection of Plaintiff while the work was being performed. WHEREFORE, Defendant, Gregg A. Gchret, trading as Easy Siders Home Improvement Company, demands judgment in his favor and against Plaintiff, together with costs. Dated: September 6, 2001 Respectfully submitted JAMES, SMITH, DURKIN & CONNELLY, LLP By. ]ARAD W. HANDELMAN, ESQUIRE Attomey I.D. #82629 P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 Attorney for Defendant, Gregg A. Gehret VERIFICATION The undersigned, Defendant, Grcgg A. Gehrct, hereby verifies that the facts set forth in the foregoing Answer With New Matter are true and correct to the best of his knowledge, information and belief and further states that false statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. Home Company Siders CERTIFICATE. OF SERVICE I, JARAD W. HANDELMAN, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Answer With New Matter upon the following below-named individual(s) by depositing the same in the U.S. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania this 7d day of September 2001. SERVED UPON: Daniel M. Myshin, Esquire 4800 Linglestown Road Suite 305 Harrisburg, PA 17112-9507 JARAD W. HANDELMAN, ESQUIRE JAMES, SMITH, DURKIN & CONNELLY, LLP f IQ N ?' c? ?: ? = r _ x: ra. U? C? <7 r ? ?- ~ r J 4 ;;4;;?? 5 F? t, . l 4'. i N n Q O X O ? < ( () Y ' W t M S n Z a Z < S g ? >= m? z Z Z J a o W i ' _ Z , m n Q O g ? ? m c ?1 A n n IN TI IE COURT OF COMMON PLEAS 01: CUMBERLAND COUNTY, I'I.NNSYLVANIA LEONARD A. MIHALICI I, ) Petitioner ) V. ) No. 99-6105 CIVIL. GREGG A. GEHRET, trading as ) EASY SIDERS HOME IMPROVEMENT CO., ) Respondent ) CIVIL ACTION PLAINTIFF'S REPLY TO NEW MATTER AND NOW, comes Plaintiff, LEONARD A. MIIIALICII, by and through counsel, Daniel M. Myshin, Esq. making Plaintiffs Reply to New Matter of which the following is a statement: 30. No responsive pleading is required. 31. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 32. Denied. Def'endant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 33. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. To the extent that def'endant's allegation is factual, it is specifically denied that the defects in defendant's workmanship occurred beyond the term of any applicable warranty period. To the contrary, the defects in defendant's workmanship occurred at installation and within the applicable warranty period. 34. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. To the extent that defendant's allegation is factual, it is specifically denied that the defects in defendant's workmanship are beyond Ol/htihaluh?acply to Nc% hlmmr September :4. NX) I n ? n the scope of any applicable warranty. To the contrary, the defects in defendant's workmanship are within the scope of an implied warranty of fitness for intended purpose. 35. Denied. It is specifically denied that the defects with the installation were caused in whole or in pan by plaintiffs own conduct, specifically the construction of home improvements such as patios and/or decks on the rear and/or side of plaintiffs home that caused the problems of which plaintiff now complains. 'fo the contrary, defendant's conduct, as more fully set forth in the Complaint and Amended Complaint, is the direct and proximate cause of plaintiffs losses. Plaintiffs subsequent, unrelated conduct did not cause the problems of which plaintiff now complains. 36. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. To the extent that defendant's allegation attempts to rc-raise nonfeasance under the UTPCPI, previously addressed and waived by defendant's failure to brief, preliminary objections were dismissed by July 26, 2001 Order of Court and res jirdlcato applies. 37. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. To the extent that defendant's allegation attempts to re-mise written warranties previously addressed and waived by defendant's failure to brief, preliminary objections were dismissed by July 26, 2001 Order of Court and rest t(ficata applies. 38. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. To the extent that defendant's allegation is factual, it is specifically denied that there was no fraudulent or deceptive conduct on behalf of defendant. To the contrary, plaintiffs Amended Complaint alleges a pattern of 01M.halicWHepl) to Nc% Malta 7 stplcmha 24. 2001 r` multiple errors in support of plaintiffs claim that defendant intended to defraud plaintiff by providing substandard work. To the extent that defendant's allegation attempts to re- raise fraudulent or deceptive conduct sufficient to sustain u cause of action under the UTPCPL previously addressed, preliminary objections were dismissed by July 26, 2001 Order of Court and res judicata applies. 39. Denied. Defendant's allegation is a conclusion of low to which no responsive pleading is required. Strict proof is demanded at trial. To the extent that defendant's allegation attempts to re-raise failure to sustain a cause of action under the UTPCPL previously addressed, preliminary objections were dismissed by July 26, 2001 Order of Court and res judicala applies. 40. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 41. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. To the extent that defendant's allegation is factual, it is specifically denied that the contract between plaintiff and defendant was for services, specifically defendant's installation of siding on plaintiffs home. To the contrary, the contract between plaintiff and defendant was primarily a sale of goods to which defendant's services were incidental. Plaintiff needed new siding on his home and purchased all of the siding, nails and insulation directly from defendant, who then installed the siding. To the extent that defendant's allegation attempts to re-raise whether the UCC is applicable to this contract previously addressed, preliminary objections were dismissed by July 26, 2001 Order of Court and rec judicota applies. 01/SUhalal/Reply to New Matta 3 Seplcmber 24.2001 r'1 n• 42. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 43. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. To the extent that defendant's allegation attempts to rc-raise whether the UCC is applicable to this contract previously addressed, preliminary objections were dismissed by July 26, 2001 Order of Court and res judlcnla applies. 44. Denied. It is specifically denied that there were no building codes applicable to the work being performed by defendant on plaintiffs home at the time of the rendering of the services. To the contrary, Ordinance Number 92-02 and specifically Part 2, §201 el seq. of the Township of I-lampdcn, Cumberland County, Pennsylvania, enacted on January 6, 1992, and Chapter 5 of the CAEO One and Two Family Dwelling Code, 1989 Edition, arc the building codes applicable to the work at the time of performance under this contract. Further to the contrary, by defendant's failure to timely respond to May 2, 2001 Requests for Admissions, No. I, 2, 3 & 4, by operation of Pa.R.C.P. 4014(b) and (d), this matter is conclusively established unless the court on motion permits withdrawal or amendment of the admission. 45. Denied, It is specifically denied that there were no manufacturer's specifications for the installation of the siding on plaintiffs home at the time work was performed by defendant. To the contrary, page 12 of the Vinyl Siding Institute " VSI" Rigid Vinyl Siding Application Instructions, Copyright 1994, and pages 7, 16 and 19 of the VSI Rigid Vinyl Siding Application Instructions, Copyright 2000, are the minimum installation standards recommended by the manufacturer for this installation. Further to the contrary, 01AIihakIVRcply lu New Maim 4 &plcmha 24, 2001 by defendant's failure to timely respond to May 2, 2001 Requests for Admissions, No. 5, 6 & 7, by operation of Pa.R.C.P. 4014(b) and (d), this matter is conclusively established unless the court on motion permits withdrawal or amendment of the admission. 46. Denied. It is specifically denied that the manufacturer's specifications are advisory only and capable of modification at defendant's discretion to fit the needs of a particular job. To the contrary, the manufacturer's specifications are minimum installation standards recommended by the manufacturer for this installation. Further to the contrary, by defendant's failure to timely respond to May 2, 2001 Requests for Admissions, No. 5, 6 & 7, by operation of Pa.R.C.P. 4014(b) and (d), this matter is conclusively established unless the court on motion permits withdrawal or amendment of the admission. 47. Denied. It is specifically denied that the contract between plaintiff and defendant expressly permits modifications to any specification in the sole discretion of defendant. To the contrary, plaintiff did not authorize modifications in violation of township building codes or minimum installation standards recommended by the manufacturer. Further to the contrary, the parties cannot contract to violate minimum building codes and minimum installation standards recommended by the manufacturer which exist for the protection of personal health and safety and which arc designed to prevent and minimize the very damage and loss that occurred. Further to the contrary, plaintiff did not contract, permit or authorize defendant to perform work in a negligent and unworkmanlike manner. 48. Denied. It is specifically denied that modifications were necessary at the request of the plaintiff and complied with by defendant upon such request by plaintiff. To the contrary, plaintiff relied upon defendant's purported expertise and experience in selecting and O1A4hah0?Rep1y to New Malta 5 scplcabcr 24.2001 installing siding on plaintiff's home. Further to the contrary, defendant selected the nails, furring strips, insulation, siding and other parts and was solely responsible for the manner in which the siding was attached to plaintiff's home, including by way of illustration but not limitation, the size, placement and location of nails and furring strips. Further ?o the contrary, plaintiff did not request modifications in violation of township building codes or minimum installation standards. 49. Denied. It is specifically denied that all defendant's work was done with the express approval of plaintiff and under the constant supervision and inspection of plaintiff while the work was being performed. To the contrary, plaintiff relied upon defendant's purported expertise and experience in performing the work in compliance with township building codes and minimum installation instructions. Further to the contrary, defendant was solely responsible for the manner in which the work was performed, including by way of illustration and not limitation, the size, placement and location of nails and furring strips. Plaintiff did not approve work done by defendant in violation of township building codes and manufacturer's minimum installation instructions. Plaintiff relied upon defendant to supervise and inspect the work as it was being performed. WHEREFORE, Plaintiff, LEONARD A. MIIIALICII, demands judgment in his favor and against defendant, together with costs. Res ectfully submitted. _ i7 ?IM/?? Danla M. bfyshin, [: q. Attorney for Plaintiff Pa.S.Ct. No. 40366 4800 Linglestown Road, Suite 305 I larrisburg, PA 17112.9507 Telephone: 717.541.5451 IIIIMiluhd?Rtpl) to New Maucr 6 ticplcmkr:J, 2MI VERIFICATION I verify that the statements contained in the above captioned pleading arc true and correct to the best of my knowledge, information and belief. I understand that false statements herein arc made subject to the penalties of 18 §4904, relating to unswom falsification to authorities. a? aOo/ a e QmLtiff 41 A6 CERTIFICATE OF S?JIVICE 1, Daniel M. Myshin, Esq., certify that on the ay of September, 2001 I served a true and correct copy of the above document by United States Mail, first class postage prepaid and addressed to the following: Jarad W. Handelman, Esq. JAMES, SMITH, DURKIN & CONNELLY, LLP Counsel for Defendant PO Box 650 Hershey, PA 17033 Respectfully submitted, Darnel M. Myshin, :sq. Pa. Supreme Court D 40366 4800 Linglestown Road, Suite 305 1larrisburg, PA 17112.9507 Telephone: 717.541.5451 01h6holich%iepy m New Mauer 7 September U. 2001 1^ ?" f y CD. J `J ri i J ..' l?.i ' ??? it7 • T. tL Q IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH ) Plaintiff ) VS. ) GREGG A. GEHRET ) Defendant ) No. 99-6105 AFFIDAVIT OF SERVICE OF WRITTEN INTERROGATORIES AND NOW, this &? day o ,t a.e , 2000, plaintiff, Leonard A. !k Mihalich, does hereby certify that on the 4&day of Aa.r , 2000, he sent written interrogatories tolarad W. Handelman, Esquire, (P.O. Box 650, Hershey. PA, 17033-0650), attorney for defendant, by certified mail. I understand that my statements set forth above are made subject to 18 Pa. Cons. Stat. Section 4904, providing for criminal penalties for unsworn faisitication to authorities. Qc?o=arff Milt lch. Plaintiff z CV a a cr_ i O z I U) dc N a ? w a 44 a w N N z M ow ° w a vAd to w m 2c w 1-1 4) ul U uH a as o 4q ? o m ob i w to H u ? E 4 ? OzOH a W , I , a 01 24 W 4 LE W U j O a u `' LEONARD A. MIHALICH, Plaintiff V. GREGG A. GEHRET, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6105 CIVIL ACTION -LAW CERTIFICATE OF SERVICE AND NOW, this 25th day of February, 2000, I, JARAD W. HANDELMAN, Esquire, Attorney for Defendant, hereby certify that I have this day sent a copy of Answers to Written Interrogatories by depositing a certified copy of the same in the United States mail, postage prepaid, at Hershey, Pennsylvania, addressed to: Leonard A. Mihalich 1065 Orrs Bridge Road Mechanicsburg, PA 17055 JARAD W. HANDEL squire I.D. No. 82629 James, Smith, Durkin & Connelly LLP P.O. Box 650 Hershey, PA 17033 (717) 533-3280 jwns Snlm I DURKIN & CaNNrvx w' Jamd W. Jlcndclmiin jwhadlea&l.mm November 13, 2001 M A1 C71 t9;[ Ill'.it I AWtAI, 1'10,11A l rT(A%N. PA Taylor P. Andrews, Esquire 1;6 t Andrews & Johnso 1.0L i At qA .1i n P ;, 1.:.. tq, 78 West Pomphrct Street I, 1c"' 1, VA 170 i) Carlisle PA 17013 !It 7I11t1_.2? , (A. 111 !.1][1 V1 AP, %T ;;Lllf tiAt CUM 1 f AnueAl lu•.1 I V 1 iU' Re. Mlhalich v Cehret deft Easy Siders Home Improvements II7 °'A11 i VA 17 .n e I 1'A 11101 t p I S K , Docket No. 99-6105 11 " A"1, Dear Mr. Andrews: In response to your letter of November 7, 2001, please be advised that of the prospective dates you provided for the arbitration in the above-captioned matter, I am available on GARY L. JAws either December 12, 2001 or December 19, 2001. For either date, 10:00 a.m. or 2:00 IMCAMNI puiwwJ" p m is acceptable JOHN CONNELLY. JR. 1 . . . STLIAR ? MAGOLLE S1[n>. A. Stwt Please do not hesitate to contact me should you have any questions regarding this matter S CO m"cs or should additional times be required for the scheduling of the arbitration. atw MLHM[i " JARAO W. HANDELU R D" A M MuuN Thank you for your kind attention and professional cooperation rOWARO P. SEEKR . N[k W. YmH a(RNMIn A. RVA"• JR. Very truly yours, JAMES, SMITH, DU LLY LLP Kam, Jarad W. an c man JWH:mgg cc: Gregg Gehrct Daniel M. Myshin, Esquire _f ., '1 `?1' ? ? 3 ?d°? '???. ? li .r LEONARD A. Mil IALICI I, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW GREGG A. GEHRET, trading and doing Business as EASY SIDERS HOME IMPROVEMENTS CO., Defendant NO. 99.6105 CIVIL NOTICE OF MEETING OF ARBITRATORS PLEASE TAKE NOTICE that the Arbitrators appointed in the above-captioned action will sit for the purpose of their appointment on Wednesday, January 23, 2002, at 10:00 o'clock A.M. in the Old Courthouse, 2"' Floor Hearing Room, Carlisle, Pennsylvania. Taylor P. Andrews, Esquire Susan Confair, Esquire Thomas Diehl, Esquire Date: d -rl -61 TO: Susan Confair, Esquire 2331 Market Street Camp Hill, PA 17011 Daniel Myshin. Esquire 4800 Linglcstown Road Suite 305 1larrisburg, PA 17112 Bulletin Board Prothonotary's Office Cumberland County Court House Carlisle, PA 17013 By Thomas Diehl, Esquire 401 East Louther Street, Suite 103 Carlisle, PA 17013 Jarod W. I Iandelman, Esquire PO Box 650 I Icrshcy, PA 17033 Court Administrator's Office Cumberland County Court House I Courthouse Square Carlisle, PA 17013 *9 S. y Y nl n. • rf' t t j- ? rv :`J 2 Lf d U e rn O ? y Q R. < ^ g = ;X in z d J n Z J ? n Q P t ? C I IN 1NI: COURT ON COMMON PLEAS OP C'UMBI:RLAND COUNTY. PENNSYLVANIA LEONARD A. MIIIALICI I, Plaintiff GREGG A. GEHRET. trading and doing business as EASY SIDERS HOME IMPROVEMENT CO.. Defendant No. 99-6105 CIVIL ACTION - LAW OICDE C T AND NOW. this ay of U:,? 2001 in consideration of the foregoing petitio/--;-K sq.. and -.Sq. are appointed as arbitrators in the above caption action as prayed I'or. 13Y T1i1: COURT. 01 Mdub.l, 1'000o'i loi .\ibtllalrn. 1 kluba 18.:1411 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEONARD A. MIHALICH, Plaintiff V. GREGG A. GEHRET, trading and doing business as EASY SIDERS HOME IMPROVEMENT CO., Defendant No. 99-6105 CIVIL. ACTION - LAW PETITION FOR APPOINTMENT OF ARBITRATORS AND NOW, comes Plaintiff, LEONARD A. MIHALICH, by and through counsel, Daniel M. Myshin, Esq., who respectfully represents the following: 1. The above-captioned action is at issue. 2. Plaintiffs claim is $10,395.00 consisting of 3 times actual damages of $3,465.00 plus punitive damages and attorney's fees. Defendant's counterclaim is $0.00. 3. The following attorneys arc interested in the case as counsel or are otherwise disqualified to sit as arbitrators: a) Daniel M. Myshin, Esq., Attorney for Plaintiff, 4800 Linglcstown Road, Suite 305, Harrisburg, PA 17112; b) Jarod W. Handelman, Esq., Attorney for Defendant, JAMES, SMITH, DURKIN & CONNELLY, LLP,110 Box 650,1lershey, PA 17033. WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Re tfully submitted. , Da a M. Myshin, I's Attorney for Plaintiff Pa.S.C. No. 40366 4800 Linglestown Road, Suite 305 I larr isburg. PA 17112-9507 01 fhhhahch/Pelmon for Arbarat,vc 2 WOW Is. 2001 OCT 2"L An IT 54 CU,d,pENNSNLMIA I4gi Yi zk IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEONARD A. MIHALICH, Plaintiff ) V. ) No. 99-6105 GREGG A. GEHRET, trading and ) doing business as EASY SIDERS ) HOME IMPROVEMENT CO., ) Defendant ) CIVIL ACTION - LAW CERTIFICATE OF SERVICE 1, Daniel M. Myshin, Esq., certify that on the 19'h day of October, 20011 served a true and correct copy of the above document by United States Mail, first class postage prepaid and addressed to the following: Jarad W. Handelman, Esq. JAMES, SMITH, DURKIN & CONNELLY, LLP Counsel for Defendant PO Box 650 Hershey, PA 17033 Respectfully submitted, 4800 Linglestown Road, Suite 305 Harrisburg, PA 17112-9507 Telephone: 717.541.5451 @M ' &?? Daniel M. MChin, E q. Pa. Supreme Court II 40366 01IMihdicWtution for ANIMon 3 October IS, 2001 ??,? ???? ?F? N ?y ?` o ._. w?- _ ?,, ? ?: ?r ??- - 5 ?? COMAM0 R/EAUH CN PENNSYLVANIA NOTICE OF APPEAL COURT OF COMMON PLEAS Cumberland Count FROM JUDICIAL DISTRI DISTRICT JUSTICE JUDGMENT 9th Judicial District COMMON PLEAS Na NOTICE OF APPEAL t F ?' / ?"I Notice is Oven that the oppellont Fat filed In the above Court of Common Pleas an oppeol from the ivdgrnaM rendered by the District Justice on the deft and in the come mentioned below 9-9-99 Leonard A. Mihalich CV 19 0000255-99 LT 19 this block vAl be signed ONLY when this notation is repa 1008& This Notice of Appeal, when received by the District SUPERSEDEAS to the judgment for possession in this case. 914 tJ . red under Pa. RCPJP. Na If appellant was CLAIMANT (see Pa. R.C.P.J.P. No. Justice, will operate as a 1001(6) in action before District Justice, he MUST FILE ACOMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. y or ty PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE Mgs section Of ferns to be used ONLY when appeliant was DEFENDANT (see Pa. RC.P.JP. Na 1001(7) in action before District Justice. IF NOT USED, dotwit from copy of notice of appeal to be served upon appellee). PRAECIPEt To Prothonotary Enter M6 upon N" of apperoasl , oppe"s), to file a complaint In this upped (Comm Pleas Na ) within twenty (20) days after service of rule or suffer entry of judgment of ran pros s7w" a repNrM a no eaorrry or pre RULEt To , appetite(s). Nrre of ggoeex(el (1) You are notified that a nAe is hereby entered upon you to file a complaint in"upped witNn twenty (20) days after the class of service of this rule upon you by personal service or by certified or registered mail (2) H you do not file a complaint within IN% time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. (9) The deft of service of Ns rule H wvice was by mail is the date of marling Dote: , 19- SpMnn of Rofnvwy a Dpq A. Gehret raPC 311 M COURT FILE TO BE FILED WITH PROTHONOTARY tl , PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN f 10l DAYS AFTER filing the notice of appeal. Check applicable bones) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; me AFFIDAVIT: I horoby Swear or affirm that 1 served 0 a copy of the Notice of Appeal, Common Pleas No, upon the District Justice designated therein on (data of service) , U by personal service 0 by (certified) (registered) mall, senders receipt attached hereto, and upon the appellee, (name) , on , 19- 0 by personal service 0 by (certified) (registered) mad, sander's receipt attached hereto. 0 and furtherthallservedtheRulotoFiloaComplaintaccompanyingtheaboveNoticeofAppealupontheappollea(s)towhom the Rule was addressed on , 19- 0 by personal service 0 by (cortitiod) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF , 19_ Spnerwe of oMmsr Mlorr whom pGdmd was msdu 7006 of orkif) My tmft".64 arpies w Signature of alliant 'A •v?+ Q t v1 Ix (js1 r i 1 r is i xl C, r `f AW 'GI U. co n to n til rV n 1 N eJl -t COMMONWEALTH OF PENNSYLVANIA rniINTYnF- CUMBERLAND M,p. PR. NO: 09-3-04 wNAM' HM THOMAS A. PLACEY Aftigs' 104 S. SPORTING HILL RD. MECHANICSBURG, PA T,rpnM. (717) 761-8230 17055 LEONARD A. MIHALICH 1065 ORRS BRIDGE RD MECHANICSBURG, PA 17055 V THIS IS TO NOTIFY YOU THAT: Judgment: NOTICE OF JUDGMENT/TRANSCRIPT PLAINTIFF: CIVIL CASE NAME and ADDRESS rHIHALICH, LEONARD A 1 1065 ORRB BRIDGE RD MECHANICSBURG, PA 17055 L J VS. DEFENDANT: NAME .m ADDRESS rGEHRET, GREGG A 1 2820 WALTONVILLE RD. HUMMELSTOWN, PA 17063 L J - DockelNo.: CV-0000255-99 Date Filed: 7/02/99 Q Judgment was entered for: (Name) MTRAr.Teu, T.RniSARn ® Judgment was entered against: (Name) nRHRR r nRRan A In the amount of $ 1,1 c;p _ nn on: n Defendants are jointly and severally liable. Gl Damages will be assessed on: This case dismissed without prejudice. Amount of Judgment Subject to Attachment/Act 5 of 1996 $_ Levy is stayed for days or Q generally stayed. ? Objection to levy has boon filed and hearing will be hold: Amount of Judgment $ Judgment Costs $ Interest on Judgment $ Attorney Fees $ Tolat $ Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ Dale: Place: Time: ANY PARTY HAS THE RIGHT TO OF APPEAL WITH THE PROTHO MUST INCLUDE A COPY I HI: n Date I certify that this is a true and Data WMVIT-30 DAYS AFTE E ENTRY OF JUDGMENT BY FILING A NOTICE :LERK OF THE C OF COMMON PLEAS, CIVIL DIVISION. YOU OF JUDGM RANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. of (Date of Judgment) o/na/oo (Date 8 Time) 7 District Justice the proceedi nlaining the judgment. District Justice My commission expires first Monday of January, 1-+2024 SEAL AOPC 315.99 f' . 4?S Q11 Z 338 841 4iS US POSW S*r*9 Receipt for Certified Mell COMMRWEALTN Of PENNSYLVANIA . NOTICE OF APPEAL Cumberland County MICIAL DISTRICT 9th Judicial Diatrict FROM DISTRICT JUSTICE JUDGMENT 9-9-99 Leonard A. MihaIich -- K_ - Gregg A. hqr%p3d M u CV 19 0000255"99 LT 19 10088. Z'3AWDcl This Notice of Appeal, when received by the District SUPERSEDEAS to the judgment for possession in INs cosy or J RCPJP. No Il'appellant was CLAIMANT (see Pa, R.C.P.J.P. No, r wilrbperote os a 1001(6) IlFWtion before tb'sfth/ustide, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. (This section of loan to be Isep ONLY when appallarl?y DEFtNDANT (sea ft. R.C.P 01(7 n lion JZZ Din Lice. F NOT USED, detach from ccoy of notice of appeal to &i scrned upon eppeike). \ PRAECIPES To Prothowtary y Enter rule upon , Name a Kaarau oppowz), to a complaint in tNs appeal (Common Pleas No ) witNn twenty (20) days after service of rule ors entry of jadg rent of ran pmL swwft" a kwasev a to rrony a open RULES To None of repMe) appellee, (1) You are notified that a rule is Mreby entered upon you to file a complaint in this upped witNn twenty (20) y?hbr the date of service of tNs rule upon you by personal service or by codified or registered mad. (2) N you do not file a complaint witNn this time, a JUDGMENT OF NON PROS WALL BE ENTERED AGAIN3T:YOU. 0 t S , (3) The date of service of tNs rule if service was by mod is the date of mailing. '?' • , Dote: , 19_. 110M ON of Ncenacrry a Deploy 1 Byr soPC312'64 _ APPELLANT'S COPY l a A I COMMON PUAE Ns ' NOTICE OF APPEAL }'f• r, !/' '% Ny ce is gins that the appellant has filed in the above Court of Common Pleas an appeal from the judgment tendered by the District Justice on the dGy and in the case mentioned below PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (101 DAYS AFTER filing the notice of appeal. Check applicable bores) COMMONWEALTH OF PENNSYLVANIA COUNTY OF 1 V-fthfA- T.?. AFFIDAVIT: I hereby swear or affirm that I served en copy of the Notice of Appeal, Common Pleas No upon the District Justice designated thoteln on (date of savico) -F C-s^ 9 , k by personal servlco ? by (certified) (registered) mail, senders receipt attached hereto, and upon the appellee. (namo) on Cfa' P--- , 10_94 O by personal service L10by (coddled) Uegistared) mail, sander's receipt attached hereto. G and further that I served the Rule to Filea Complaint ncconip,inying the above Notice of Appeal upon the appelloo(s) to whom the Rule was addiessod on . , 19- O by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME ?` P THIS "r DAY OF -4!C 193.1_. , Signature of alfiont ?fQMfv pf oalc,41 bPrOln ---LJff10j1J oil M',004 10 TWO of orrklar Q? M i /? y comm ?xion n•p?ros w __T t9 Notarial5eal A Chestnut, Notary Pudic l B C b d C l n T kD n ono, an e um er ounty My Commission Expires May 13 2000 z i; ;7 , Trir.. n ..? li?a MenlJer, Pe"tvarm Amociation of Nouries t 1 _ n ?i?. ul ' I r ? y?7 i . 1 also vAsh to =41" the Idlow• I ' MB servkas (for an extra 1011): SENDER: "' taoaonM trwue re'r 2 for 1 t a Carom, e.m C,mh t arm 3 tt. W te. rurm Me;earut am to reverse d en 00" w 11m wt ctn mur eit 1. 0 Addressee's Address C3 Pw q o;nw,f i,irmaerhatdn.mdvr11.aa^0rtraswp?n^0r 2.O RnWedDshary ptrrm Na'an a mxxx ttwttweerradt ... tl WM •NM?r nr+rOf nNu•r wq OMn+rte;na a" ar etl sidt wtem h r no, ? ' O Th. nNUrr nr40f M Mew d0 M se. Article d cl ANde e Addressed to: + $g 4b. Se YDe? E Registered qq?r S I 0 Express Mail 0brwnd ,H 5 . ( 0 Rolm Rtarpl ar Mrcrrr s" O COD X ¦ . 7. Data of Oalrv ' e. Addressee' Addmss(Onh/0requeof - S. Received BY: N ! lee is pa ` . ftm Ufa restee or end) tSttbee84223 oornesocHe"nH"Pt PSForrn3811,Decem011r1U94 .i._. ,,I ? 4 t i '11;9$ t ixi:3 t'. v fti' JH. 2. •, d ? ? r fl ? ?l x yy ' p V Q ? ?? s 1 4 ? L L - -Si t 4M1 OY?, fYi yr? „C. C C ^ v A?a (n ? i. ' i . C e w ?i en N1j ?• i(Ry{n 11 ? f( 1 1 ? (rye; ?ry(? / Q r! V t ? 71 ; 1 } li V a E, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH ) Plaintiff ) VS. ) No. /?-G/Ov` G?i????f?o7?ll?t GREGG. A. GEHRET ) Defendant ) AFFIDAVIT OF SERVICE 1, LEONARD A. MIHALICH, Plaintiff, affirm that I sent a copy of the "Complaint in Assumpsit" containing a "Notice to Plead" by certified mail on -.424& a4 , 1999. The return receipt card relative to this service is attached I hereto as Exhibit "A". understand that my statements set forth herein arc made subject to 18 Pa. Cons. Stat. §4904. providing for criminal penalties for unswom falsification to authorities. otiwd A. Mihn ch ? a i to complete items 1, 2, and 3. Also comPlets I Item 4 It Restricted Delivery Is desired. IN Print your name and address on the reverse ' so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front If space permits. 1. Mick Aderessed to: A. C34.hnti T ag51p 6t)aVvAVI11f Hum?nf.IS-?ow??P o;36 i 2. Article Number (COPY Wait swvke kb"a L? A. Retsived by (POP W Runt CbMI)r) B. Dote??Dmh hire r j1 t X Q ^ ' D M1 eee 0. is delivery add'esa CIA&VA hen Rem 17 O Yes If YES, enter delrvery often below: O No 3, Ice Type ?CerlOwd Mae O Express MW O Registered O Return Receipt for Marchand" O Insued Mat O C.O D. t. Ratrkted pelivery7 (Extra Fes) O Yes PS Form 3811. July 1999 Dalsntic Return Receipt 102595.09 M-11e0 i . I ? t. 1 a i r i • t, L" i , C-1 ?- . C -lo a W C W N L 4 M ro 4 MEW m. i Q uHN as a z vv O w~N a C)VI M a H v 0 E b E+WW "' ,n o e 4to H a > o u v z < 01 w0: a a al mwrna a c? v a HP° H z v o N i a u ~, v u .ft? LEONARD A. MIHALICII. Plaintiff V. GREGG A. GEHRET, Defcndant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6105 CIVIL TERM CIVIL ACTION-LAW NOTICE TO PLEAD To: Leonard A. Mihalich, Plaintiff YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Preliminary objections within twenty (20) days from service hereof or a judgment may be entered against you. Dated; ±bwc l&l/ 1999 By; Respectfully submitted, JAMES, SMITH, DURKIN & CONNELLY, LLP JARAD W. IIANDLLMAN, LbkJUtne Attorney I.D. #82629 P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 Attorney for Defendant, Gregg A. Gchret LEONARD A. MIHALiCH, Plaintiff V. GREGG A. GEHRET, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6105 CIVIL TERM CIVIL ACTION - LAW DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT 1. On or about June 30, 1994, Plaintiff and Defendant entered into a contract for Defendant's services of installation of siding on Plaintiffs home. 2. Plaintiff believed and now alleges that Defendant breached the aforementioned contract. 3. On or about October 22, 1999, Plaintiff filed a Complaint in this Honorable Court in support of his appeal from the September 9, 1999 judgment rendered by the Honorable District Justice Thomas A. Placcy. A true and correct copy of the Complaint is attached hereto as Exhibit "A". PRELIMINARY OB IFCTION IN THE NATURE OF A DEMURRER FOR LEGAL INSUFFICFNCY OF PLEADING Defendant, by his undersigned attorney, preliminarily objects to Plaintiff's Complaint pursuant to Pa. R.C.P. 1028(a)(4) as follows: 4. Paragraph eight (8) of Plaintiffs Complaint alleges as follows: "The Defendant sold Plaintiff a defective product in that the nails were too short and not fit for the intended purpose, namely to adequately secure the siding, therefore, Defendant breached the implied warranty of fitness for the intended purpose, thus Defendant breached the contract." Sec Exhibit "A", $8. 5. The allegations of paragraph eight (8) of Plaintiffs Complaint implicate §2315 of the Uniform Commercial Code, 13 Pa.C.S.A. §2315, dealing with implied warranties of fitness for a particular purpose. 6. Before the protections of the implied warranty of fitness for a particular purpose attach, there must be, a sale of goods. Turnev Media Fuel. Inc, v. Toll Dos.. Inc., 725 A.2d 836 (Pa. Super. 1999). The contract between Plaintiff and Defendant was for services, specifically Defendant's installation of siding on the Plaintiffs home. 8. Supplying of services is not a "sale" within the meaning of the UCC for purposes of determining whether a seller or product falls within the purview of the UCC and whether one may be liable for breach of warranty. 9. The contract between Plaintiff and Defendant is not governed by the UCC, and there is no implied warranty of fitness for a particular purpose applicable to the transaction. Accordingly, any alleged breach of such warranty cannot serve as the basis for Defendant's alleged breach of the contract between the parties. WHEREFORE, Defendant respectfully requests that this Honorable Court grant his Preliminary Objections in the nature of a demurrer and dismiss paragraph Eight (8) of Plaintiff's Complaint. PRELIMINARY OBJECTION RAISING INCLUSION OF SCANDALOUS OR IMPERTINENT MATTER Defendant, by his undersigned attorneys, preliminarily objects to Plaintiffs Complaint pursuant to Pa.R.C.P. 1028(a)(2) as follows: 10. Paragraph six (6) of Plaintiffs Complaint alleges as follows: "Defendant admitted under oath in District Court that he used the wrong nails and did not nail them into the studs." See Exhibit "A", 16. 11. The allegation set forth in paragraph six (6) of Plaintiffs' Complaint constitutes scandalous and/or impertinent matter pursuant to Pa.R.C.P. 1028(a)(2). 12. Plaintiff filed a timely Notice of Appeal from the judgment rendered on September 9, 1999 by the Flonorable District Justice Thomas A. Placey. 13. Pursuant to Rule 1007 of the Rules of Civil Procedure Governing Actions and Proceedings Before District Justices, "[t)he proceeding on appeal shall be conducted de novo in accordance with the Rules of Civil Procedure that would be applicable if the action was initially commenced in the court of common pleas." 14. As the proceeding before this Honorable Court is de novo as prescribed by Rule 1007, any reference to testimony allegedly given at the District Justice hearing is improper. 15. There is no transcript of the testimony given before the District Justice, and consequently no way in which to verify the accuracy of Plaintiffs characterization of Defendant's testimony. 16. Plaintiffs inclusion of the averments of paragraph six (6) of the Complaint is intended to draw an improper inference of liability from testimony given at a proceeding which by Rule is irrelevant to the action before this I lonorable Court. 17. Defendant respectfully submits that he would suffer great prejudice if the allegations in paragraph six (6) of Plaintiffs' Complaint are permitted. WHEREFORE, Defendant respectfully requests that this Honorable Court strike the averments of paragraph Six (6) and order Plaintiff to remove from his Complaint said avertnents regarding the alleged admission of Defendant before the District Justice. PRELIMINARY OBJECTION RAISING INSUFFICIENT SPECIFICITY OF PLAINTIFFS' COMPLAINT Defendant, by his undersigned attorneys, preliminarily objects to Plaintiffs Complaint pursuant to Pa.R.C.P. 1028(a)(3) as follows: 18. Paragraph five (5) of Plaintiffs Complaint alleges as follows: "Defendant admitted to Plaintiff on several occasions that the nails were too short to adequately secure the siding and they were not nailed in proper locations." See Exhibit "A", 15. 19. Pa.R.C.P. 1019(1) requires that "averments of time, place and items of special damages shall be specifically stated." Pa.R.C.P. 1019(0 (emphasis added). 20. The averments of paragraph five (5) of Plaintiffs Complaint do not specifically state the time and place of the alleged admissions of Defendant. 21. Plaintiff bases his claim of breach of contract in part on the alleged admissions of Defendant. 22. Pa. R.C.P. 1019(a) requires that material facts on which a cause of action is based shall be stated in a concise and summary form. 23. The aforementioned paragraph five (5) of Plaintiffs Complaint fails to set forth with sufficient specificity the material facts relating to the alleged admission of Defendant on which Plaintiffs cause of action for breach of contract may be based. 24. Defendant can neither admit or deny the averments of paragraph live (5) of Plaintiffs Complaint without specific dates and times attached to the alleged admissions. 25. Plaintiffs Complaint lacks sufficient specificity to apprise Defendant of the issues to be litigated and to allow him to adequately prepare to assert defenses to Plaintiffs allegations. WHEREFORE, Defendant respectfully requests that this Honorable Court order Plaintiff to more specifically plead the avenncnts of paragraph Five (5) of his Complaint, or alternatively, strike the allegations of paragraph Five (5) from the Complaint. PRELIMINARY OBRCTION RAISING INCLUSION OF SCANDALOUS OR IMPERTINENT MATTER Defendant, by his undersigned attorneys, preliminarily objects to Plaintiffs Complaint pursuant to Pa.R.C.P. 1028(a)(2) as follows: 26. Paragraph five (5) of Plaintiffs Complaint alleges as follows: "Defendant admitted to Plaintiff on several occasions that the nails were too short to adequately secure the siding and they were not nailed in proper locations." See Exhibit "A", 15. 27. The allegation set forth in paragraph five (5) of Plaintiffs Complaint constitutes scandalous and/or impertinent matter pursuant to Pa.R.C.P. 1028(a)(2). 28. Defendant cannot in good faith respond to the allegation in paragraph five (5) of Plaintiffs Complaint either in the affirmative or in the negative because an 10 affirmative response would be a judicial admission which would be admissible at the time of trial and a negative response may be untruthful. 29. The allegations made by Plaintiff regarding alleged admissions of Dcfendant arc properly reserved for direct or cross examination in the presentation of Plaintiffs case at trial. 30. The statements sought to be attributed to Plaintiff in paragraph five (5) of Plaintiffs Complaint constitute inadmissible hearsay, however, Plaintiff may attempt to use the mere allegation of an admission in paragraph five (5) during the presentation of his case as establishing the same for purposes of trial. 31. Defendant respectfully suggests that he would suffer great prejudice if the allegations in paragraph five (5) of Plaintiffs Complaint arc permitted. WHEREFORE, Defendant respectfully requests that this Ilonomble Court order Plaintiff to remove from his Complaint the averments of paragraph Five (5) regarding the alleged admission of Defendant. Respectfully submitted. JAMES, SMITH, DURKIN & CONNELLY, LLP Datcd: t ky#C oe-L 10 t 1989 By JARAD W. IIANDELMAN. E UIRE Attorney I.D. 982629 P.O. Box 650 I lershey, PA 17033.0650 (717) 533-3280 Attorney for Defendant. Gregg A. Gehret -.., .. t Exhibit A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTI-I OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH ) Plaintiff ) VS. ) GREGG. A. GEHRET ) Defendant ) 99- eel"- No. -65F't3i}53-fir NOTICE TO DEFEND 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 (E0) days after this complaint and notice are served, by entering a written appeamnce personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief 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 CANNOT AFFORD ONL. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle. Pennsylvania Phone Number (717) 249.3166 TRUE COPY FROki RECORD to Testlit". wheroet, I here unto set my, hano and the seal of aatC Ccurq at Caitlsle, Pa. TId1 I •).url day l• i . L. I Y prothonotary IN TI IE COURT OP COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEA LTI I Of PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH ) Plaintiff ) VS. ) No. GREGG.A.GEHRET ) Defendant ) COMPLAINT IN ASSUMPSIT v -? os el ad %, AND NOW, comes Plaintiff and sets forth the following facts in support of his claim against the Defendant: 1. Plaintiff. Leonard A. Mihalich, is an individual who resides at 1065 Orrs Bridge Road. Mechanicsburg, Cumberland County, Pennsylvania. 17055. 2. Defendant, Gregg A. Gehret, is an individual who resides at 2820 Waltonville Road. Hummelstown, Pennsylvania, 17062, and is the owner and operator of a home improvement company. 3. In the latter pan of 1994, the parties entered into a contract. in Cumberland County, wherein defendant agreed to install a new root. insulation and siding, and Plaintill'would pay Defendant approximately'fwelve Thousand ($12.000.00) Dollars. Plaintiff has fulfilled his obligation to make full payment. Plaintiffhas misplaced his copy of the contract, therefore, is unable to attach it as an exhibit. 4. In March or April of 19977, an average windstorm tore off some of the siding. Plaintiff discovered that the siding was not properly secured because the nails were improperly placed; they were not nailed into the studs. 5. Defendant admitted to Plaintiff on several occasions that the nails were too short to adequately secure the siding and they were not nailed in proper locations. 6. Defendant admitted under oath in District Court that he used the wrong nails and did not nail them into the studs. 7. Defendant breached the contract by failing to perform the installation of the insulation and siding in a proper and workmanlike manner that is acceptable in the trade; i.e., he used nails that were too short and the nails were positioned improperly) The breach of contract occurred at the time the siding was installed. 8. The Defendant sold Plaintiff a defective product in that the nails were too short and not fit for the intended purpose, namely to adequately secure the siding, therefore. Defendant breached the implied warranty of fitness for the intended purpose, thus. Defendant breached the contract. 9. The Defendant's breach of contract will cause Plaintiff to replace the tom-off siding, which was damaged, and to remove all of the other siding and replace it with nails of proper length which are placed into the studs. See copy of quality of workmanship report attached hereto. 10. Cost of replacing siding that was damaged is $tpnpo-; cost of removing and replacing all of the other siding is $ 3,281100 . WHEREFORE, Plaintiff requests judgment against Defendant in the amount of $ 39381.00 with costs and interest. Respectfully submitted, Qognard A. Mihalich, laintiff h t l•: ??1•i:.l ;.. i'.•: N 11' ?' ii'. i'•I li'j ?(.a.It .'' :? w ?_TT P.O. Ilex 343 Q Ohl Mill Mmll New Cumhcrland, m 17070 Dill burg. l'A 17u19 717.774.3450 :utl,: L a .% 11 717-132-7105 Tull Free 377-711.6222 Fax 717-502•07:9 Date: October 19, 1999 To: Leonard A. Mihalich 1065 Orrs Bridge Road Mechanicsburg. PA 17055 From: Jerry Zimmerman Regarding: Siding and related work at 1065 Orrs Bridge Road, Nlechanisburg. PA c Obicetiv On October 16, 19991 inspected the above property only for the purpose of assessing the quality of workmanship relative to the installation of vinyl siding. Observations Approximately 60 square feet of siding was missing from the rear wall of the house primarily from the second story. This permitted n visual inspection of the insulation sheathing and nailing applications. Furring strips were secured to the block wall at 24" centers on the first story. 1 inch Rboard was placed between the furring strips. Since the furring strips are approximately 314 inches thick and the Rboard is I inch thick, there was a gap left between the siding and the furring strip of approximately 1/4 inch. Three nails in approximately 20 feet under a deck were nut driven straight and/or were not in the center of the slot of the siding. On the second story of the rear wall 1 inch Rboard was installed over 1/2 inch Cclotex insulation board. Studs were spaced 16 inches on center. Random inspection of nailing application revealed that approximately 100o of the nails did not penetrate the studs in this area or were just striking the edge or the studs. Siding on the north and south sides of the house was installed in tite same manner as tilt rear. Two pieces of siding were lifted from the south side for visual inspection underneath. Three nails were found to be securing one 12 foot siding panel and nails were spaced 4 feet apan in another panel. Siding on the second story was loose in numerous areas as evidenced by bulges. Nail length was 2 inches determined by a random pulling of nails. Siding on the third or attic levr' of the north and south sides exhibited greater and more extensive bulging than on I. ,: lower Ic.cls. Approximately 501•0 of titc sidin: was very luuxc. EXHIBIT A Siding on the front wall appeared more secure than the other house walls. Panels under the second story windows were very loose. No sill trim was used to secure it. The corner post on the southeast corner of the house was pushed in at the top. It appeared us it' it was intentionally pushed in so that the rake (ward trim would overlap it at the top. But, the trim was no longer overlapping it resulting in a gap at the top. Corner posts on other corners were scaled at the top with no evidence of attempts to overlap the rake board trim over the top of it. The service entrance cable on the north wall was not secure to the wall. Clamps were loose, and the screws were not penetrating the furring strip or stud. Analysis and Recommendations Our client, Mr. Mihalich, indicated that Alsidc and the manufacturer of the vinyl siding applied to this home. Alside recommends to "nail every 16" if possible ". If furring strips were not already in place when this contractor installed the siding, furring strips should have been placed 16" on center instead of the 24" as observed. This would provide sufficient nailing surtaces to ensure secure attachment to exterior walls. The 1/4 inch gap left between the siding and the furring strip is not recommended. A I/4 inch tiller would be preferred. If the nails used penetrate the furring strips at least 3/4 inch, this gap may not present a problem. Nails must be positioned in the center of the panel flange and driven straight. All nails found not to meet this requirement should be replaced. All nails meet penetrate studs or furring strips in order to hold the siding securely in place. Any loose nails or nails that missed the studs or furring strips must be inserted correctly. Since a random inspection of siding on the first story on the north and south side walls revealed nail spacing of 48 inches in approximately 15% of the panels, it is recommended that all the siding be lifted or removed and reinstalled correctly. Nails pulled from the second story siding were 2 inches long. The nails must pass through approximately 1 5/8 inches of material before they penetrate the studs. This would result in a 3/8 penetration into the stud. Alside states, "Nails must be long enough to penetrate 3/4 " into a solid underlayment." The underlayment would be the stud of furring strip. Therefore. nails used to hang this siding apparently would penetrate only half the distance recommended by the manufacturer. This is unacceptable and must be corrected. It is obvious that the loose and bulging siding on the upper stories of this house is primarily due to improper nail length. I recommend that the nails be replaced with ones that are at least 2 112" in length. Undersill trim should be installed under windows. This would pre%cnt loose siding under the front windows. . Corner post should be capped or scaled to prevent penetration of water L•ehind it. Standard installation procedures no nally do not invol%e placenent of eor er posts behind rake l•oard trim as it was at the southwest corner of this house, '['his also was not consistent with the other corners of the same house where they were capped and sealed. Service entrance cables must be reinstalled after siding installation is completed. This cable was very loose. The weathenccad and cable clamps apparently were not adequately secured to the studs when it was replaced. The cable must be secured properly. Conclusions Numerous violations of standard trade practice and the manufacture's installation recommendations were noted. These include improper spacing of furring strips, nail spacing, nail placement and installation methods. It is recommended that changes be undertaken to ensure that siding installation conforms to the manufacturer's guidelines. Local building codes may also require adherence to these. v?ti><,v?v,nw,ti P esidc t Building Inspector . _. ... .,. r '1911 ~-,nl .6;4c, uIxa4 cP r'SS ?' sc? cra25 C)roosing a fastener. Vinyl siding and accessories can be fas- tened in three ways: Nails. Either conventional or power-driven nails are accept- able. Whichever you choose, be. certain to use aluminum, gal. vanized steel, cadmium-coated or other corrosion-resistant nails. Nails must be long enough to penetrate s/+" into a solid underlavmenr. A 1 th" nail is best for most applications, although you may want to use a 2" nail for residing projects and a 2 4s" nail (minimum) if you'll be nailing siding through backerboard. \atl heads should be at least %/s" in diameter, with a shank of 4t" diameter. Staples. In general, the same guidelines apply to staples. Either conventional or power-dtiven staples are acceptable if they are corrosion-resistant. Ia addition, staples must be at least 16 gauge semi-tlartened to an elliptical cross-secrion (see illustration). The staple crown should be tar least °/t." wide and the legs must be long enough to peaerrarc a_snlid Utl, scrate at least •t/.". Screws. Screws are used when siding is attached to walls built on metal studs. Use rig, corrosion-resistant, self-rapping screws with a round washer head. Screws should be long enough to penetrate meal studs at least s/+". 1.2 Estimating material requirements. Sfdfng and sofTrr estimates. Determining how much siding and soffit yow need requires lirle more than basic math. The key is to divide the surface area of a home rto basic geometric shapes. then calculate the total square footage. Tine illusrraricns below make it easy. Walls (excluding gables), Calculate the square footage of a rectangle: lHeighti x (width) e (surface area) Repear for all wall areas. Cable ends. Calculate the square footage of a triangle: (Height .1') 4 x (ch- width) e (surface area) Repear for other gables. 1.1.•11"11 IJ- "I"'. r ',ns Positioning fasteners. The key to positioning fasteners properly is to allow space for expansion and contraction. You can achieve that goal by following t ese StttdetLries: •i??ir' When installing horizontal siding or accessories: Position nails (or other fastener) in the center of nailing slots. On new construction, position nails over studs, 16' on center. Do not skip studs. If it's impossible to position nails every 16", cal Alside automer service for specific nailing recommenda- tions. (The number is 1-800.91?-6009.) On remodeling projects, na(1 every 16_"_ if possible. Be sure the substrate you're nailing into is eve.-. and solid. See page 19 for more details. When installing vertical siding oraecessories: Pwirion the first nail (or other fastener) in the uppermost v .? ...,, .;qs?. ;'; ,•' i nailing slot so the panel or accesso:)• hangs from the fastener (See illustration.) The remaining fasteners are positioned in ' the center of nailing sloe. When positioning vertical siding or accessories, remember to ' allow more room for expansion at the low end (see page 13). When installing tofu: Position fasteners in center of nailing slots, spaced 16'1 apart. If using Charte: Oak" reinforced vinyl soffit, nails can be placed 24" apart. The paret's added rigidin• will prevent saggir.;. 16 COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA AND NOW, this -7A day of , 1999, 1. LEONARD A. MIHALICH, affirm that the facts set forth in the foregoing Complaint are true upon my personal knowledge and belief. I understand that my statements are made subject to 18 PA. Cons. Stat. §4904, providing for criminal penalties for unswom falsification to authorities. 1e? onard A. Mihalich V p?7uool V9 01 clip+ Avtj7D.T w M 43 ri m ro w a ? d e i IV b tn N ro ? ro a m v -M Im to a ?m C w u o ro °w o a 0 ? Z pNN Z.n Z 12 Nn fi°? d-? gu Mo p o 0 pYy °o SY N b m b Ln N w .d N N T" 00 N u .? r ? T} C ''n C y a ? CERTIFICATE OF SERVICE I, JARAD W. HANDELMAN, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Preliminary Objections upon the following below-named individual(s) by depositing the same in the U.S. Mail, postage prc•paid at Hershey, Dauphin County, Pennsylvania this 100 day of November, 1999. SERVED UPON: Leonard A. Mihalich 1065 Orrs Bridge Road Mechanicsburg, PA 17055 JAMES, SMITH, DURKIN & CONNELLY, LLP { i a c? 4 n r , f tY'- ` II 11 II & II x ? r ! r' a in d ' t. la u ?.. A Oz } t , 11 1. t IN TI II? C'Ol1RT OF COMMON PHAS OP Cl1MBERLAND COUNTY. VA COMMON WEAI.'1'H OF PENNSYLVANIA CIVIL ACTION - LAW LEONARD A. MII IAI.ICII Plaintiff vs. GREGO. A. 61:1 IRE I' Defendant No. 99-6105 ANSWER TO DF.FF.NDANT'S PRELIMINARY OILIF.CTIONS Leonard A. Mihalich, plaintiff sets firth the following in response to defendant's Preliminary Objections: 1. Admitted: its liirther clarification, the installation of siding find insulation was part ol'a larger contract which included the installation of a new roof. The plaintiff purchased all material from defendant. 2. Admitted. 3. Admitted. 4. Admitted. S. Admitted. 6. Admitted. 7. It is admitted that plainti IT contracted with defendant to install the siding and insulation: however, this was just a part of a larger contract. The contract required plaintiff to purchase the material from the defendant. 8. The averments in this paragraph are non-factual; therefore, no response is required. 'I'o the extent that some response is required. plaintiff contends that if the contractual obligations include the purchase of goods and the installation of the purchased goods, the contractual obligations come within the purview of the LIM 1). The averments in this paragraph arc non-factual; therefore. no response is required. 'I'o the extent that sonic response is required. plaintiffs contentions in Paragraph ^8" above are incorporated herein. It is further contended that the implied warranty of fitness for a particular purchase applies to the circumstances in this case. WI INIFFORE. plaintiff respectfully requests this honorable Court to deny and dismiss request Ibr a demurrer and dismiss paragraph eight (8) of plaintiffs complaint. It is to be noted that plaintiff also contends defendant breached the contract by failing to install the siding and insulation in a proper and workmanlike manner that is acceptable in the trade. 10. Admitted. 11. Plaintiffdcnies that the averments in paragraph six (6) of plaintiffs complaint constitute scandalous and/or impertinent matter pursuant to Pa. R.C.P. I028(a)(2). The aforesaid paragraph six (6) is a true and accurate factual description. It establishes defendant's breach of contract. Defendant has failed to be specific in what manner paragraph six (6) contains scandalous and/or impertinent matter. If defendant is referring to the word "wrong", this word is not impertinent because the complaint is very specific in describing what constituted the defective nature ofthe nails used by defendant. 12. Admitted. 13. Admitted. 14. Plaintiffcontends that if this case was initially commenced in the Court of Common fleas. plaintilTwould be permitted to use admission by defendant that he breached the contract: therefore, plaintiffcould use defendant's admissions at the District Justice hearing. II'del'cndant is asked at the Arbitration hearing to state all times he made such admissions. is he permitted to give an inaccurate answer by ignoring itn admission made at the District Justice hearing? 15. Plaintiff can testify as to defendant's admissions. The District Justice. in staling the facts he found, set forth the following: "Defendant or his agent allegedly admitted to using the wrong size nails and not nailing them into the studs:" 16. I'InintiITdenies defendant's contentions in this pamgmph. No rule should be interpreted to avoid the truth and promote misrepresentations and untruth. 17. phlintifftlenies defendant would be prejudiced. I'htintiIT agrees that the truthfulness of fiaragraph six (G) orplaintill's complaint would be harmful to defendant's case. that is the "it), plaint i n's v, in cases: they establish evidence that is harmlul to defendant's case. \VI II?Rl:,I:ORli, plaintiffrespecttidly requests the Ilonorable Court to deny defendant's request to strike pamgmph six (G) ol'plaintill's complaint. IR. Admitted. 11). Admitted: however. plaintiI)'contends that the requirements of I'a. At C. P. $Po; 1019(1) apply to ,special damages" and do not apply to the averments of paragraph rive (5) of plaintilt's complaint. 20. Admitted. This specific information can be obtained by discovery. To avoid prolonged litigation, plaintiff states the defendant made these admissions on two occasions. once at the District Justice hearing: and second, shortly after sonic siding was blown offby the wind in approximately April, 1997. Plaintiff called defendant by phone and defendant made these admissions. 21. Admitted. 22. Admitted. Plaintiffcontends he has complied with the provisions of Pa. R.CI'. 11119(a?. 23. In response to the averments of this paragraph, plaintifTincorporates his answers in paragraphs 10 and 20. above. 23. In response to the nvernients in this paragraph. plaintiff incorporates his answers to paragraphs 23. 19 and 20. above. 25. Denied. The averments of this paragraph are too vague and general to enable plaintiff to he more specific in his denial. \VI II?Rlsl:oltls, plaintiffrespecUidly requests this I lonorable Court to deny defendant's request liar more specific pleading. 26. Admitted. 27. In response to the averments in this paragraph. plaintiff incorporates his answers in paragraphs 11.23. 19. and 20. 28. Admitted. Justice and this judicial proceedings arc a quest for the truth even if the truth is, at times. harmful. 29. it is denied that admissions are reserved for direct ob cross-examination. A response to paragraph five (5) of plaintiffs complaint will tend to shorten this litigation and avoid costly and time-consuming discovery. 30. The averments in this paragraph are denied. Adverse admissions of a defendant are not inadmissible hearsay. Plaintiff is entitled to know if defendant denies making these admissions prior to trial so plaintiffcan adequately prepare his case for trial. 31. Admitted. Plaintiff incorporates his answer in paragraph 28 above, and the rationale set forth in paragraph 17 above. WI IFREFORE. plaintiITrespect fully requests this I lonorable Court to deny dclendant's request to remove paragraph five (5) of plaintiffs complaint. Respectfully submitted, u!5,? L-{. onard A. Mihali •Im . _4 COUNTY OF CUMBERLAND ) COMMONWEALTH OF PENNSYLVANIA ) AND NOW, this iL day of ?. 1999. 1, LEONARD A. MIHALICI I, allirm that the facts set forth in the foregoing Answer to Defendant's Preliminary Objections arc true upon my personal knowledge and belief. understand that my statements arc made subject to 18 PA. Cons. Stat. §4904. providing for criminal penalties for unswom falsification to authorities. C, CWoLnardA. Mihalich IN TI II: COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MII IALICI I ) Plaintiff' ) V+ ) No. 99.6105 GREGG. A. GEI IRET ) Defendant ) AFFIDAVIT OF SERVICE, 1. LEONARD A. Mll IALICI I, Plaintiff, do hereby certify that 1 served and true and correct copy of the foregoing "Answer to Defendant's Preliminary Objections' by depositing the same in the United States mail, postage pre-paid. this `, day of - f "---_- 1999. Served upon: Jamd W. I landelman. Esquire 1'.O. Box 650 l lershcy. PA 17033-0650 n GliardA-Vilialic PRAECIPE FOR LISTING CASE. FOR ARGUMENT TO THE PROTHONOTARY: Please list the within matter for the next Argument Court. LEONARD A. MIHALICH, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 99-6105 CIVIL TERM GREGG A. GEHRET, CIVIL ACTION - LAW Defendant 1. State matter to be argued: Defendant's Preliminary Objections 2. Identify counsel who will argue case: (a) For Plaintiff- 3 4. Datcd: (b) For Defendant: Leonard A. Mihalich (pro se) 1065 Orrs Bridge Road Mechanicsburg, PA 17055 Jarad W. I landclman, Esquire 134 Sipe Avenue I lummelstown, PA 17036 I will notify all parties in writing within two days that this case has been listed for argument. Argument Court Date: December 30, 1999 March 1 2000 Attorney for Defendant CERTIFICATE OF SERVICE 1, JARAD W. HANDELMAN, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Praecipe for Listing Case for Argument upon the following below- named individual(s) by depositing the same in the U.S. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania this 30th day of December, 1999. SERVED UPON: Leonard A. Mihalich 1063 Orrs Bridge Road Mechanicsburg, PA 17055 JARAD W. HANDELMAN ESQUIRE , JAMES, SMITH, DURKIN & CONNELLY, LLP ? ¢'l}}p x' 13•rt ` y C 1?, tM t i+g• t ! i t Ti s?rrt4+?,G f k C%s i y 3? Y 5 t .+ .y i i r w CA ?il i. r Y l ?, 111 it Id4 M i i L. f t C1 p U u d H ri M D rl V in O .?l .o h 0 z ?U .5? z q M a ` a - w L a N w c az .,I go a -1 44 H E m 1 i N H s D UHa a d Hf 0M0 a as + H ? ado ° ' - w a z D O H D u M w u4u wa a a ° a w a M H M z 0 D H W z W l-l u u a u ..3yyti'a '. Y tY ??i4i+ A. MIHALICH, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 99-6105 CIVIL TERM GREGG A. GEHRET, : CIVIL ACTION - LAW Defendant STIPULATION TO AMEND PLEADING It is hereby agreed between the undersigned that the above-named Plaintiff, Leonard A. Mihalich, may amend his Complaint in the above-captioned matter as proposed. Respectfully submitted, Dated: 1 vo 00 By: JARAD W. HANDFLMA , -QUIRE Attorney I.D. #82629 JAMES, SMITH, DURKIN & CONNELLY, LLP P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 Attorney for Defendant Gregg A. Gehret Dated: x_00 By: C&du& Z-3 _ LEONARD A. M IHALICH Plaintiff (Pro S 1065 Orrs Bridge Road Mechanicsburg, PA 17055 LEONARD A. MIHALICH, : IN TI IE COURT 01: COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 99-6105 CIVIL TERM GREGG A. GEHRET, CIVIL ACTION -LAW Defendant r' `-' c• u PRAECIPF. TO WITHDRAW DEFENDANT'S PRF,LIMINARYC:: , - _ OB.IF.CTIONS FROM ARGUMENT COURT TO THE PROTHONOTARY: Pursuant to agreement of the undersigned, kindly withdraw the above captioned matter from the Argument Court scheduled for March 1, 2000. Respectfully submitted, Dated: 1 2!0 00 By: q- JARAD W. HANDELMAN, ESQUIRE Attorney I.D. 482629 JAMES, SMITH, DURKIN & CONNELLY, LLP 1'.O. Box 650 1lershey. PA 17033.0650 (717)533.3280 Attorney for Defendant Gregg A. Gehrct Dated: l 3? OO l3 : _ ' NA D A. MI IALICII Plain tiff(pro Sc) 1065 Orrs Bridge Road Mechanicsburg. PA 17055 ltg sir Ft ?) ll: _ fl 1 O ~7,.r `, i )r7 -:i ?' UCH •I ? ? c7 u U LEONARD A. MIHALICH, Plaintiff V. GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT CO. Defendant To: Leonard A. Mihalich, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 99-6105 CIVIL TERM : CIVIL ACTION -LAW YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, JAMES, SMITH, DURKIN & CONNELLY, LLP Datcd: March 15, 2000 By: JARAD W. HAN LMAN, SQUIRE Attorney I.D. #82629 P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 Attorney for Defendant, Gregg A. Gchret r? r 67 U g i Z W W fa iJ 44 r ..1 T W b a d o A 004 w r u A N a i a E-4 X a0 H E W U) 7 t7 W a •a aN a ? b . N V1 EZM aao 47 E U H Vf W 12 H 03 WHa fu W cm 0 F i M LEONARD A. MIHALICH, Plaintiff V. GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT CO. Defendant r IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6105 CIVIL TERM CIVIL ACTION -LAW DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, comes Defendant, GREGG A. GEHRET, by and through his attorneys, James, Smith, Durkin & Connelly, LLP, and preliminarily objects to Plaintiffs Amended Complaint in the nature of a demurrer to Count 11 and Paragraph Eleven (11) thereof pursuant to Pa.R.C.P. 1028(a)(4). In support thereof, Defendant respectfully submits as follows: On or about June 30, 1994, Plaintiff and Defendant entered into a contract for Defendant's services of installation of siding on Plaintiffs home. 2. Plaintiff believed and now alleges that Defendant breached the aforementioned contract. 3. There were no written warranties made in or incorporated into the contract between Plaintiff and Defendant. 4. On or about October 22, 1999, Plaintiff filed a Complaint in this Honorable Court in support of his appeal from the September 9, 1999 judgment rendered by the Honorable District Justice Thomas A. Placey. w Unfair Trade Practices and Consumer Protection Law (hereinafter "UTPCPL"). A true and correct copy of the Amended Complaint is attached hereto as Exhibit "All. 6. Plaintiffs Complaint fails to state a cause of action under the UTPCPL for the reasons more fully set forth herein. PRELIMINARY OBJECTION TO COUNT 11 OF PLAINTIFF'S AMENDED COMPLAINT IN THE NATURE OF A DEMURRER FOR LEGAL. INSUFFICIENCY OF PLEADING Defendant, by his undersigned attorney, preliminarily objects to Plaintiffs Complaint pursuant to Pa. R.C.P. 1028(a)(4) as follows: 7. Count 11 of Plaintiffs Complaint alleges violation of the UTPCPL, 73 Pa.C.S.A. §201 et seq. See Amended Complaint, Count 11, ¶¶19-29. 8. Plaintiff alleges that "bulging" in the siding on his home occurred as a result of Defendant's faulty workmanship. See Amended Complaint, %20-22. 9. Specifically, Plaintiff alleges that Defendant failed to use nails of the proper length, failed to properly space the nails on the siding, and failed to use an adequate number of nails, all constituting "defective construction" and resulting in Defendant's failure to adequately secure the siding to Plaintiffs home. See Amended Complaint, ¶¶20-27. 10. Plaintiff alleges generally that "[D]efendant's defective construction" caused the alleged damages sustained by Plaintiff as a result of the siding on his home. See Amended Complaint, ¶28. 11. The allegations of Plaintiffs Complaint constitute nonfeasance on the part of Defendant which is insufficient to state a claim under the UTPCPL. I 12. There are no written warranties between Plaintiff and Defendant and therefore §201-2(4)(xvi) of the UTPCPL does not apply. 13. Plaintiff has failed to adequately allege any fraudulent or deceptive conduct on behalf of Defendant that could sustain a cause of action under the UTPCPL. 14. Plaintiffs Amended Complaint fails to state a cause of action under the UTPCPL. WHEREFORE, Defendant respectfully requests that this Honorable Court grant his Preliminary Objections in the nature of a demurrer and dismiss Count 11 of Plaintiff's Amended Complaint with prejudice. AMENDED COMPLAINT IN THR NAT R OF A D M IRR R FOR L.EGA INCrreFl tFNrv OOPS ADIN(' Defendant, by his undersigned attorney, preliminarily objects to Plaintiffs Amended Complaint pursuant to Pa. R.C.P. 1028(a)(4) as follows: 15. Paragraph Eleven (11) of Plaintiffs Amended Complaint references and incorporates paragraph eight (8) of the Original Complaint into the Amended Complaint. A true and correct copy of Plaintiff's Original Complaint is attached hereto as Exhibit "B". 16. Paragraph Eight (8) of Plaintiffs Original Complaint alleges as follows: "The Defendant sold Plaintiffa defective product in that the nails were too short and not fit for the intended purpose, namely to adequately secure the siding, therefore, Defendant breached the implied warranty of fitness for the intended purpose, thus Defendant breached the contract.-, See Original Complaint, 18. 17. The allegations of paragraph Eight (8) of Plaintiffs Original Complaint implicate §2315 of the Uniform Commercial Code, 13 Pa.C.S.A. §2315, dealing with implied warranties of fitness for a particular purpose. 18. Before the protections of the implied warranty of fitness for a particular purpose attach, there must be a sale of goods. Tumey Media Fuel. Inc. v. Toll Bos.. Inc., 725 A.2d 836 (Pa. Super. 1999). 19. The contract between Plaintiff and Defendant was for services, specifically Defendant's installation of siding on the Plaintiffs home. 20. Supplying of services is not a "sale" within the meaning of the UCC for purposes of determining whether a seller or product falls within the purview of the UCC and whether one may be liable for breach of warranty. 21. The contract between Plaintiff and Defendant is not governed by the UCC, and there is no implied warranty of fitness for a particular purpose applicable to the transaction. Accordingly, any alleged breach of such warranty cannot serve as the basis for Defendant's alleged breach of the contract between the parties. WHEREFORE, Defendant respectfully requests that this Honorable Court grant his Preliminary Objections in the nature of a demurrer and dismiss paragraph Eleven (11) of Plaintiffs Amended Complaint with prejudice insofar as said paragraph references and incorporates paragraph Eight (8) of Plaintiffs Original Complaint. By: Respectfully submitted, JAMES, SMITH, DURKIN & CONNELLY,).t.P JARAD W. HANDELMAN, ESQUIRE Attorney I.D. #82629 P.O. Box 650 Hershey, PA 17033.0650 (717) 533-3280 1 <1 The undersigned, Defendant, Gregg A. Gehret, hereby verifies that the facts set forth in the foregoing Preliminary Objections arc true and correct to the best of his knowledge, information and belief and further states that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. GRE / GEHRET Exhibit A \ j IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MiHALICH Plaintiff Vs. GREGG. A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT COMPANY Defendant No. 99.6105 AMENDED COMPLAINT The attached amended complaint is filed pursuant to PA R.C.P. Rule 1033, and with the consent of counsel for defendant. Plaintiff, Leonard A. Mihalich, does hereby state that he sent a certified copy of the amended complaint to attorney for defendant, Jamd W. Handelman, Esquire, P.O. Box 650, Hershey, PA, 17033.0650, by regular mail on the day of 1+3!'041W .2000. 0'0 and . Mihali t Pro Se, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW LEONARD A. MIHALICH Plaintiff VS. No. 99.6105 GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT COMPANY Defendant NOTICE TO DEFEND 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 amended complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief 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 CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania Phone Number (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH Plaintiff VS. GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT COMPANY No. 99-6105 Civil Term Defendant AMENDED COMPLAINT AND NOW, comes plaintiff and presents an amended complaint setting forth facts in support of his original claim based on a breach of contract by improper, negligent, defective installation of vinyl siding; by failing to install the siding according to the siding manufacturer's requirement, and usage and custom of the trade; and improper, defective installation of the electric service line and other electrical fixtures (as requested in defendant's preliminary objections, the averments are set out with more s specificity). s 45 f u?F A-. e i d??2L. This amended complaint also adds and joins plaintiffs claim under the "Unfair Trade Practice and Consumer Protection Law (73 P.S. Section 201, et scgJt COUNT ONE 11. Paragraphs I through 9 of the original complaint, including the report of Jerry Zimmerman (attached to and incorporated in the original complaint) are incorporated herein as though copied herein in their entirety. 12. Plaintiff purchased all the material used on the job from defendant, including but not limited to, the siding, nails and insulation. 13. Specifically, the defendant's acts of improper, negligent, defective installation of the vinyl siding ure as follows: a) Nails that were not driven straight or missed the solid part of the stud or furring were not pulled out and replaced properly. b) Too few nails were used to secure the siding. They were not placed 16-inches apart, where possible, as required by the manufacturer of the siding and the custom and usage of the trade; S/01 C) Nails were not placed in the center of the nailing't or positioned in the center of the panel flange as required by the manufacturer of the siding; d) None of the nails were long enough to penetrate the solid underlayment (studs or furring strips) % (three-quarters) of an inch as required by the manufacturer of the siding and as required by usage and custom of the trade; C) 'frim was not used to properly secure the siding under the window; f1 The rake board trim did not overlap the siding on the comer post, thus permitting water to penetrate behind the siding and damage 3 the structure of the house. See Gabriel v. O'If,wj, 543 AN 498 Wa. Super, 1987) as precedent for such amendment. g) Furring strips and studs were placed twenty-four (24) inches "on center" instead of the required sixteen (16) inches "on center"; h) In the installation, defendant created a one-quarter (1 /4) inch gap between siding and the solid underlayment, which is contrary to the usage and custom of the trade; i) Electric service entrance cable was removed and improperly replaced. The weatherltcad and cable clamps were not adequately secured, thus creating a serious safety hazard. The defendant did not use competent and certified electricians; j) Defendant did not comply with the requirements of the local code and building permit; k) Defendant used unskilled, untrained, incompetent, and uncertified employees to work on plaintiffs home, and failed to properly supervise these employees. 14. All of the above mentioned defects were created and existed at the time defendant installed the siding and the quality of defendant's work was below the standards of that agreed to verbally or in writing. 15. All of the above improper, negligent, defective and poor workmanship acts require all of the siding to be removed and replaced. Some of the siding has been damaged; sonic of the siding will be damaged during removal to the extent they cannot be used. The removal of the siding and replacement of some of the siding will result in an inferior quality of siding and installation. 16. Removal and replacement of the siding will cause some damage to the insulation. 17. The total damages caused by defendant's improper, negligent, defective, poor workmanship, and the necessity of replacing the siding constitutes a serious "Major Problem". 18. At all times in the business relationship between plaintiff and defendant, defendant held himself out as operating under the trade name of "Easy Siders Home Improvement Company", therefore plaintiff has amended the complaint to correct the name of the defendant and to conform to the averments in the pleadings. WHEREFORE, plaintiff demands judgment against Gregg A. Gehret, trading as Easy Siders Home Improvement Company, in the amount of $Lq/os-.. COUNTTWO VIOLATION OF UNFAIR TRADE PRACTICE AND CONSUMER PROTECTION LAW (73. P.S. SECTION 201, ET. SEQ.) 19. All of the paragraphs in Count One of this amended complaint and the original complaint are incorporated herein as though copied in their entirety. 20. Just before the parties entered into the contract and while defendant was viewing plaintiff's home and evaluating the proposed construction, defendant informed plaintiff of his extensive (since 1974) and capable experience in home improvement construction. At this time, he informed plaintiff that there was some type of one-year warranty. Plaintiff responded that in view of his inexperience in such contracts and because of the expenditure of Twelve'fhousand ($12,000.00) Dollars, what if a serious "major problem" was discovered after the one-year period. Defendant stated he stands behind his work and he would take care of it without charge. 21. Defendant repaired a bulge in the siding approximately one year after the job was completed. This was after the warranty period. 22. Shortly after repairing the first bulge, a second bulge appeared in the same area and shortly after the second bulge appeared, the wind blew off a large portion of the siding. Defendant was informed of these incidents and he said he would take cure of the damage. Defendant agreed to make the repairs after plaintiff completed construction of his patio. These incidents occurred after expiration of the warranty period. 23. Plaintiff notified defendant several times that his patio was completed, however, defendant did not respond until his letter of October 29, 1998, wherein he stated because of the expiration of the warranty period, there would be a charge for any repairs. 24. Since the defects mentioned above causing the damage and necessity of replacing the siding occurred at the time of construction and existed within the warranty period, the warranty period does not apply to plaintiff's claims. 25. The defects above mentioned were such that they could not be discovered by expected and normal observation by the homeowner; the defects are latent defects. 26. Because the defects above mentioned were latent defects, because of the lifetime warranty on the siding, because it is reasonable to expect the siding to remain on the dwelling for more than a year, a workmanship warranty of one year is unreasonable and void. 27. Because of the gross. outrageous, negligence and magnitude of defendant's poor workmanship, he knew or should have known the following before and at the time he installed the siding: n) The nails used to secure the siding were too short, too fcw and improperly placed to adequately secure the siding; b) The damage that did occur was an expected consequence of his detective installation; C) The latent defects would not be discoverable by normal observation within the warranty period of one year; d) The imposition of a vague warranty of one year. All of the above circumstances created a likelihood of confusion or of misunderstanding and constituted fraudulent conduct within the meaning and scope of the "Unfair Trade and Consumer Protection Law." 28. Because defendant's defective construction was so grossly negligent and flagrant; because the defects were easily comprehended and rccogniznblc by even persons inexperienced in home construction; because the defects were such that defendant knew or should have known of the seriousness of the defects and expected serious consequences of defendant's defective installation - the defendant's acts of construction are shocking, outrageous and intolerable. 29. The defendant's construction was inferior and below the standard of that agreed to verbally or in writing, WHEREFORE, plaintiff requests judgment against defendant in the amount of $_ 010 3 9 5- which is three times the actual damages of $T` C. plus punitive damages and attorney fees as permitted by law. Respectfully submitted, con d A. Mihalich 'laintiff IN THE COURT Of COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH Plaintiff ) VS. ) No. 99.6105 GREGG A. GrHRET ) Defendant ) COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA i AND NOW, this day of1, LEONARD A. MIHALICH, affirm that the facts set forth in the foregoing Amended Complaint are true upon my personal knowledge and belief. I understand that my statements are made subject to 18 PA Cons. Stat. §4904, providing for criminal penalties for unswom falsification to authorities. iar A. Mihali Mr mg4ru rp.1. W. MIMI. Exhibit 8 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH Plaintiff VS. GREGG. A. GEHRET Defendant 99- G /or C,'v y Ae ,oar No. NOTICE TO DEFEND 7 .y '? r _ -rr i .- - ' ^ - You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your, defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief 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 CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle. Pennsylvania Phone Number (717) 249-3166 TRUE COPY Fn0;63 RECORD to Testhrony wheroef, I I)9; a unto set my nano and 1113 Sul cl tatd Ccur at Catlisle. Pa. ihls 1.?....r ?ay ?• eL•o... 1 =! i prothonotary IN TFIE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTui OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH ) Plaintiff ) VS. ) GREGG. A. GEHRET ) Defendant ) 9 -G o3- C)'?i/ T„Q" No. COMPLAINT IN ASSUMPSIT AND NOW, comes Plaintiff and sets forth the following facts in support of his claim against the Defendant: 1. Plaintiff. Leonard A. Mihalich, is an individual who resides at 1065 Orrs Bridge Road. Mechanicsburg, Cumberland County. Pennsylvania. 17055. 2. Defendant, Gregg A. Gehret, is an individual who resides at 2820 Waltonville Road, Hummelstown, Pennsylvania, 17062, and is the owner and operator of a home improvement company. 3. In the latter part of 1994, the parties entered into a contract, in Cumberland County, wherein defendant agreed to install a new roof, insulation and siding, and Plaintiffwould pay Defendant approximately'rwelveThousand ($12,000.00) Dollars. Plaintiffhas fulfilled his obligation to make full payment. PlaintifThas misplaced his copy of the contract, therefore, is unable to attach it as an exhibit. 4. In March or April of 1997,, an average windstorm tore off some of the siding. Plaintiff discovered that the siding was not properly secured because the nails were improperly placed; they were not nailed into the studs. 5. Defendant admitted to Plaintiff on several occasions that the nails were too short Eo adequately secure the siding and they were not nailed in proper locations. 6. Defendant admitted under oath in District Court that he used the wrong nails and did not nail them into the studs. 7. Defendant breached the contract by failing to perform the installation of the insulation and siding in a proper and workmanlike manner that is acceptable in the trade; i.e., he used nails that were too short and the nails were positioned impropcrlyl The breach of contract occurred at the time the siding was installed. 8. The Defendant sold Plaintiffa defective product in that the nails were too short and not fit for the intended purpose, namely to adequately secure the siding. therefore. Defendant breached the implied warranty of fitness for the intended purpose, thus, Defendant breached the contract. 9. The Defendant's breach of contract will cause Plaintiff to replace the tom-off siding, which was damaged, and to remove all of the other siding and replace it with nails of proper length which are placed into the studs. See copy of quality of workmanship report attached hereto. -- =, t l'.I', I :\:ll.. I:I: I\l\? I I? 11.i?: i:•?li?l'. t. I Ilfly.?,. i??' 1W. lint 343 63 Okl Mill Read New Cumberland, PA 17070 I)illa;urg. PA 17019 - - :? ur;ty ar_•mi 717.774.3450 717.432-7105 R+1 r.?trA;,t xutN Itut;fir,. :.. I I T; C I Tull Free 377-777.6222 Pas 717-502.0729 Date: October 19, 1999 To: Leonard A. Mihalich 1065 Orrs Bridge Road Mechanicsburg, PA 17055 From: JerryZimmerman Regarding: Siding and related work at 1065 Orrs Bridge Road, Nlechanisburg. PA Obicetiv On October 16, 19991 inspected the above property only for the purpose of assessing the quality of workmanship relative to the installation of vinyl siding. Observations Approximately 60 square feet of siding was missing from the rear wall of the house primarily from the second story. This permitted a visual inspection of the insulation sheathing and nailing applications. Furring strips were secured to the block wall at 24" centers on the first story. 1 inch Rboard was placed between the furring strips. Since the furring strips are approximately 3;4 inches thick and the Rboard is 1 inch thick, there wps u gap left between the siding and the furring strip of approximately 114 inch. Three nails in approximately 20 feet under n deck were not driven straight and/or were not in the center or the slot of the siding. On the second story of the rear wall 1 inch Rboard was installed over 1/2 htch Celotex insulation board. Studs were spaced 16 inches on center. Random inspection of nailing application revealed that approximately 1040 of the nails did not penetrate the studs in this area or were just striking the edge of the studs. Siding on the north and south sides of the house was installed in the same manner as the rear. Two pieces ofsiding were lifted from the south side for visual inspection urderneath. Three nails were found to be securing one 12 foot siding panel and nails were spaced 4 feet apart in another panel. Siding on the second story was louse in numerous arcas as evidenced by bulges. Nail length was 2 inches determined by a random pulling of nails. Siding un the third ,r attic Icv,'1 of the north and south sides e%hibitcd greater and more extensive bulging than on t..c lower Ic.cls. Approximately 500•6 of the siding w;ts %eiy louse. EXHIBIT A Siding on the front wall appeared more secure than the other house walls. Panels under the second story windows were very loose. No sill trim was used to secure it. The corner post on the southeast corner of the house was pushed in at the top. It appeared as if it was intentionally pushed in so that the rake board trim would overlap it at the top. But, the trim was no longer overlapping it resulting in a gap at the top. Corner posts on other corners were scaled at the for with no evidence ofattempts to overlap the rake board trim over the top of it. The service entrance cable on the north wall was not secure to the wall. Clamps were loose, and the screws were not penetrating the furring strip or stud. Analvsis and Recommendations Our client, Mr. iviihalich, indicated that Alside and the manufacturer of the vinyl siding applied to this home. Alsidc recommends to "nail every 16" if possible ". If furring strips were not already in place when this contractor installed the siding, furring strips should have been placed 16" on center instead of the 24" as observed. This would provide sufficient nailing surfaces to ensure secure attachment to exterior walls. The 1/4 inch gap left between the siding and the furring strip is not recommended. A 1/4 inch filler would be preferred. If the nails used penetrate the furring strips at least 3/4 inch, this gap may not present a problem. Nails must be positioned in the center of the panel flange and driven straight. All nails found not to meet this requirement should be replaced. All nails must penetrate studs or furring strips in order to hold the siding securely in place. Any loose nails or nails that missed the studs or furring strips must be inserted correctly. Since a random inspection of siding on the first story on the north and south side walls revealed nail spacing of 48 inches in approximately 15% of the panels, it is recommended that all the siding be lifted or removed and reinstalled correctly. Nails pulled from the second story siding were 2 inches long. The nails must pass through approximately 15/3 inches of material before they penetrate the studs. This would result in a 3/8 penetration into the stud. Alside states, "Nails must be long enough to penetrate 3/4 " into a solid underlayment." The underlayment would be the stud of furring strip. Therefore, nails used to hang this siding apparently would penetrate only half the distance recommended by the manufacturer. This is unacceptable and must be corrected. It is obvious that the loose and bulging siding on the upper stories of this house is primarily due to improper nail length. I recommend that the nails be replaced with ones that are at least 2 1/2" in length. s ?f Undersill trim should be installed under windows. This would prevent loose siding under the front windows. . Corner post should be capped or scaled to prevent penetration of water Ixhind it. Standard installation procedures no, •nally do not invohe placement ofeomcr pests behind rake board trim as :`7 it was at the southwest corner of this house. This also was not consistent with the other corners of the same house where they were capped and sealed. Service entrance cables must be reinstalled after siding installation is completed. This cable was very loose. The wcatherhead and cable clamps apparently were not adequately secured to the studs when it was replaced. The cable must be secured properly. Conclusions Numerous violations of standard trade practice and the manufacture's installation recommendations were noted. These include improper spacing of furring strips, nail spacing, nail placement and installation methods. It is recommended that changes be undertaken to ensure that siding installation conforms to the manufacturer's guidelines. Local building codes may also require adherence to these. ?JIA.L .YGY4.Yh1.1.?++* ?+ P eside t Building Inspector Choosing a fastener Vinyl siding and accessories can be fas- tened in three ways: Nails. Either conventional or power-driven nails are accept. able. Whichever you choose, be certain to use aluminum, gal- vanized steel, cadmium-coated or otter corrosion-resistant nails. Nails must be long enough to penetrate r/+" into a solid underlavmenr. A 11/2" nail is best for most applications, although you may want to use a 2" nail for residing projects and a 2 4:" nail (minimum) if you'll be nailing siding through backerboard. Nail heads should be at least %/t" in diameter, with a shank of 'A" diameter. Staples. In general. the same guidelines apply to staples. Either conventional or power-driven staples are acceptable if they are corrosion-resistant. In addition, staples must be at least 16 gauge semi•tlarened to an elliptical cross•secrion (see illustration). The staple crown should be or least 71W wide and the legs must be long enough to p5,.:errate . ?nlid sub• scrate at least b+". Screws. Screws are used when siding is attached to walls built nn metal studs. Use MS, eorrosion•resiscant, self-tapping screws with a round washer head. Screws should be long enough to penetrate meal studs at least t/+". 1.2 Estimating material requirements. Siding and sofTr estimates. Determining how much siding and saftit you'll need requires little more C-wn basic math. The key is to divide the surface area of a home into basic geometric shapes. then calculate the coral square footage. The Wus=dcns below make it easy. Walls (excluding gat les). Calculare the square focrage of a rectangle: ;Helghti x (width) = (surface area) Repeat for all wall areas. Cable ends. Calculate the square footage of a triangle: (Height .l') x (II., width) n (surface area) Repear for other gables. 7 I-i Positioning fasteners. The key to positioning fasteners properly is co allow space for expansion and contraction. You can achieve that goal by following t ese guidelines: When installing horizontal siding or accamries. Position nails (or other fastener) in the center of natlin, slots. t`'?'r'iy On new construction, position nails over studs, 16" on center. Do not skip suds. If ir's impossible to position nails every 16", J call :Aside customer service for specific nailing recommenda- tions. (The number is 1-800.923-6009.) On remodeling projects, nail every 16nail every 16__ _ ii iff possible. Be sure the substrate ,you're nailing into is ever. and solid. See page 19 for more detains. When installing vertical siding or accessories: Position the first nail (or other fastener) in the uppermost l nai ing slot so the pane! or acces=,%- hangs from the fastener (See illustration.) The remaining fasteners are positioned in the c f ili l ente: o na ng s ots. When positioning "."deal siding or accessories, remember to allow more room for expansion at the low end (ace page 13). When installing soffit. Position fasteners in center of nailing slots, spaced 16" apart. If using Charte: Oak-minforced vinyl soffit, nails can be placed 24" aparr. The panel's added rigidity will prevent saggir.;. 16 COUNTY OF CUMBERLAND ) COMMONWEALTH OF PENNSYLVANIA ) AND NOW, this -?A day of ? eta . 1999, I, LEONARD A. MIHALICH, affirm that the facts set forth in the foregoing Complaint are true upon my personal knowledge and belief. I understand that my statements are made subject to 18 PA. Cons. Stat. §4904, providing for criminal penalties for unsworn falsification to authorities. Qbnard A. ihalich 41,11opt 1 W 4 v paG9u?,? I t 0 w " ' j c a ? a o in ° V v a ff H b bi p m .o . V x w w + w ? 0 a m • m 14 U 14 "4 r ° o w a a.. x t i . N ' 2 yl? O 4IQ C F p1 N g I W L r v L Cz 1y: m m so Ln M1 h .D N N % . .. 1, JARAD W. HANDELMAN, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Preliminary Objections upon the following below-named individual(s) by depositing the same in the U.S. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania this I Sa' day of March, 2000. SERVED UPON: Leonard A. Mihalich 1065 Ors Bridge Road Mechanicsburg, PA 17055 JARAD W. HANDELMAN, ESQUIRE JAMES, SMITH, DURKIN & CONNELLY, LLP Q?4g En W yr a ?p N m IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW LEONARD A. MIHALICH Plaintiff vs. GREGG A. GEHRET Defendant No. 99-6105 - Civil Term (ARBITRATION) PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT 1. The averments in paragraph one (1) of Defendant's Preliminary Objections are denied for the reason the contract between Plaintiff and Defendant was for the installation of siding and the purchase by Plaintiff from Defendant of all materials, including but not limited to, the nails to be used in the installation of the siding. Furthermore, Defendant has failed to state whether the contract referred to in paragraph one (1) was written or oral, and if written, has failed to attached a copy to the Preliminary Objections, 2. Admitted. 3. Admitted. 4. It is admitted Plaintiff filed an appeal of the District Justice's judgment, which was in favor of Plaintiff and against Defendant, because thejudgment was insufficient to replace the defectively installed siding. There is no paragraph five (5). No response is required to the reference of the Unfair Trade Practice and Consumer Protection Law. 6. Plaintiff admits the averment in paragraph six (6) of Defendant's Preliminary Objections, however, Plaintiff's Amended Complaint does state a cause ofaction under the Unfair Trade Practice and Consumer Protection Law established in the Plaintiffs subsequent responses. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. This contention will be clearly 11. Plaintiff admits paragraph eleven (11) of Defendant's Preliminary Objections, however, Plaintiff's Amended Complaint does state a cause of action under the Unfair Trade Practice and Consumer Protection Law. This will be clearly substantiated by Plaintiff's subsequent responses. Plaintiff contends the averments in his Amended Complaint and the reasonable inference therefrom will justify the Arbitration Panel's finding that Defendant's motive, his knowledge of the defective installation prior to and during installation, his confusing warranties, his failure to inform Plaintiff'of the latent defects and the magnitude of the defective installation were fraudulent actions and created a likelihood of confusion or misunderstanding, thus establishing a claim under the Unfair Trade Practice and Consumer Protection Law. 12. Even though Section 201-2(4)(xvi) does not require written warranties (it requires written standards), PlaintifTadmits paragraph twelve (12) of the Preliminary Objections. This admission is based upon Defendant's answer to written interrogatories wherein Defendant states that there were no written standards in the contractual relationship between Plaintiff and Defendant. 13. Paragraph thirteen (13) of the Preliminary Objections is denied for the following reasons: a) Paragraph twenty-seven (27) of the Amended Complaint avers that all of the circumstance set forth in the Amended Complaint created a likelihood of confusion or of misunderstanding, and constituted fraudulent conduct within the meaning and scope of the "Unfair Trade Practice and Consumer Protection Law b) The Amended Complaint sets forth the specific acts which constitute the fraudulent conduct. These fraudulent, deceptive unfair actions (and the reasonable inferences therefrom) are as follows: (1) Before and at the time of the siding installation, Defendant knew or should have known the nails were too short, too few and improperly placed to adequately secure the siding [paragraph twenty-seven (27) of the Amended Complaint]; (2) The defects were Intent defects. They were such that they could not be discovered by expected or normal observation by the homeowner within the warranty period expressed by Defendant [paragraphs twenty-six (26) and twcnty-seven (27) of Amended Complaint]; (3) The warranty period expressed by Defendant was unreasonably, thus was deceptive, confusing and misleading [paragraphs twenty-six (26) and twenty-seven (27) of Amended Complaint]; (4) The Defendant informed Plaintiff that in spite of the expressed warranty period, he would take care of any serious "major problems" that was discovered alter the expressed warranty period, without charge [paragraph twenty (20) of the Amended Complaint]. This added to the confusion and misunderstanding; (5) Paragraph four (4) of the original Complaint alleges Plaintiff discovered the siding was not properly secured in march or April of 1997 when the wind tore off some of the siding. Paragraph twenty-seven (27) of the Amended Complaint alleges the Defendant knew of the defects prior to the installation and at the time of installation, thus, the Defendant's failure to inform Plaintiff of the latent defects is strong evidence that Defendant intended to deceive Plaintiff. The above mentioned allegations in Plaintiffs Complaint, Amended Complaint, and the reasonable inferences therefrom clearly establish that Defendant's contentions in paragraph thirteen (13) is truly beyond logic. 14. The legal conclusion set forth in paragraph fourteen (14) of the Preliminary Objections are denied. The reasons for this denial are set forth in Plaintiffs response in paragraph thirteen (13) and are incorporated herein. WHEREFORE, Plaintiff respectfully requests this Honorable Court to deny and dismiss Defendant's Preliminary Objections in the nature of a demurrer and the request to dismiss Plaintiffs Amended Complaint with prejudice. 15. Admitted. 16. Admitted. 17. Admitted 18. Admitted. 19. Paragraph nineteen (19) of Defendant's Preliminary Objections is denied The contract between Plaintiff and Defendant was for the installation of siding and the purchase by Plaintiff from Defendant of all material, including but not limited to, the nails to be used in the installation of the siding. 20. Paragraph twenty (20) ofthe Preliminary Objections is denied Plaintiff objects to the inclusion of the term "or product". Plaintiff agrees that supply of services, such as electricity, does not come within the meaning or scope of UCC, however, in the case at bar, Plaintiff purchased services and goods. Therefore, this case comes within the scope of the UCC. 21. The legal conclusions set forth in paragraph twenty-one (21) of Defendant's Preliminary Objections are denied for reasons set forth above. WHEREFORE, Plaintiff respectfully requests this Honorable Court deny and dismiss Defendant's Preliminary Objections in the nature of a demurrer and Defendant's request to dismiss paragraph eleven (11) of Plaintiffs Amended Complaint with prejudice, insofar as said paragraph references and incorporates paragraph eight (8) of Plaintiffs original Complaint. Respectfully submitted, Dated: y /J/-D0 nerd A. Mihali VERIFICATION The undersigned Plaintiff, LEONARD A. MIHALICH, hereby verifies that the facts set forth in the foregoing response to "Defendant's Preliminary Objections to Plaintiff's Amended Complaint" are true and correct to the best of his knowledge, information and belief, and further states that false statements are made subject to the penalties of 18. Pa. C.S. Section 4904 relating to unswom falsification to authorities. Dated: 411441-06 _ onar A. M' alich IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICFI Plaintiff vs. GREGG A. GEHRET Defendant No. 99-6105 AFFIDAVIT OF SERVICE OF PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, this /# day of ftA? , 2000, plaintiff, Leonard A. Mihalich, does hereby certify that on the H day of ZZ_, 2000, he sent Plaintiffs Response to Defendant's Preliminary Objections to Plaintiffs Amended Complaint to Jarad W. Handelman, Esquire, (P.O. Box 650, 1Icrshey, PA, 17033-0650), attorney for defendant, by certified mail. understand that my statements set forth above are made subject to 18 Pa. Cons. Stat. Section 4904, providing for criminal penalties for unswom falsification to authorities. rd A 404ih?Klch, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEONARD A. Mll IALICl1, Plaintiff V. GREGG A. GEIIRET, trading and doing business as EASY SIDERS HOME IMPROVEMENT CO., Defendant No. 99-6105 CIVIL ACTION - LAW PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary: Please enter the appearance of: Daniel M. Myshin, Esq. 4800 Linglcstown Road, Suite 305 Harrisburg, Pennsylvania 17112-9507 as Attorney for Plaintiff, LEONARD A. MII IALICI I, in the above captioned case, Dated: January 29, 2001 Daniel M. Myshin, sq. Attorney for, Plaintiff Pa Supreme Court ID #40366 4800 Linglcstown Road, Suite 305 Harrisburg. PA 17112-9507 717-541-5451 ? c I l:J ?: L) CV 4 (?,jr I1?(.. T ? • ? ? (( 1 M nyy f . 7 k . et• , a? PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY: Please list the within matter for the next Argument Court. LEONARD A. MIHALICH, Plaintiff V. GREGG A. GEHRET, Defendant : IN THE COURT OF COMMON'PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6105 CIVIL TERM CIVIL ACTION -LAW I. State matter to be argued: Defendant's Preliminary Objections to Amended Complaint 2. Identify counsel who will argue case: (a) For Plaintiff: Daniel M. Myshin, Esquire 4800 Linglestown Road Suite 305 Harrisburg, PA 17112.9507 (b) For Defendant: Jarad W. Handelman, Esquire 134 Sipe Avenue Hummelstown, PA 17036 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: May 23, 2001 Dated: March 20, 2001 JARAD W. HANDELMAN, ESQUIRE Attorney for Defendant w ? }I•nd i SR ??k1 i"i f 1 ,:I CERTIFICATE OF SERVICE 1, JARAD W. HANDELMAN, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Praecipe For Listing Case for Argument upon the following below- named individual(s) by depositing the same in the U.S. Mail, postage pre-paid a( Hershey, Dauphin County, Pennsylvania this 20th day of March 2001. SERVED UPON: Daniel M. Myshin, Esquire 4800 Linglestown Road Suite 305 Harrisburg, PA 17112-9507 JARAD W. HANDELMAN, ESQUIRE JAMES, SMITH, DURKIN & CONNELLY, LLP 9 fy Q c, v LEONARD A. MIHALICH, PLAINTIFF V. GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT CO., DEFENDANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 99-6105 CIVIL TERM BEFORE BAYLEY, J. AND HESS. J. ORDER OF COURT AND NOW, this-&day of July, 2001, the preliminary objections of defendant to plaintiffs amended complaint, ARE DISMISSED. By Edgar B. Bayley," J. Daniel M. Myshin, Esquire For Plaintiff Jared W. Handelman, Esquire For Defendant Gregg A. Gehret :sea o?g COMMONWEALTH OF PENNSYLVANIA NOTICE OF APPEAL COURT OF COMMON PLEAS FROM Cumberland Count JUDICIAL DISTRI DISTRICT JUSTICE JUDGMENT 9th Judicial District COMMON PLEAS Na NOTICE OF APPEALS [ C/ Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice an the date and in the case mentioned below A. 9-9-99 Road Leonard A. Mihalich Gregg A. Gehret Cv 19 0000255-99 LT 19 This block will be signed ONLY when this notation is required under Pa. R.CPJA No 1008& This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case z if appellant was CLAIMANT (see ft. R.C.P.J.P. No. 1001(6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after Signature of Prothonotary or Deputy filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa. R.C.P.JP. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAECIPE: To Prothonotary Enter rule upon (Common Pleas No RULE: To Name of egoer S) , oppellee(s). of a(.peeard a he Niamey or (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail (2) If you do not file a compaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of mailing. Date: 19_. sior atue of Awra'arry or Deputy Name of appeflWs) , appellee(s), to file a complaint in this appeal ) within twenty (20) days offer service of rule or suffer entry of judgment of non pros. IDPC 312- COURT FILE TO BE FILED WITH PROTHONOTARY a u' N Ujo z 'If' - :, ?- ; y" C S O O U h U '-8t ' uo saildxa uoisslwwoo Ayy ARIP0 Jo ally )ueylp {o alnleuAtS -"6l d0 AVO SIHl 3W 38OJ38 03ewosenS ONV (03VYHIJJV) NHOMS "olaaaq pagoelle idlaow s,aapues 'llew (paaals169a) (paippao) Aq E) aolAJas leuosaad Aq E) -6? ` uo passaippe sum aind aya wogmol(s)aapaddeagluodnleaddVioaolloNanogeaql6ulAuedwoooeluleldwooealldolalnyegipaAJasileglJaqlanipue E] *oleaaq pagaege ldleoai s,aapues 'clew (pajaisl6aj) (paipliao) Aq C] aopves leuosaad Aq [] 6l, ` uo ' (oweu) `aapadde aql uodn pue `olaiaq pagoelle idiaow s Japuas glees (paAls160J) (pelyluao) Aq [] aolAAas leuosaad Aq C] ' (ao/AJas 10 a7ap) uo ulajagl peleu61sop aogsnr lowslO aql uodn ' 'ON seald uowwoo yeaddV to aogON aql to Adoo e n paAJas I legs uaal;)e oo creams Agaaag I :l1AV(31c13V 09 d0 A1Nnoo VINVAIASNN3d 40 H17V3MN0WW00 (sexoq elgeo)ldde Nosyo 'leadde jo eagou eyl 6u!Rl a313V SA VO (04) N31 NIHllM 03714 381SnN1 aD(Nes Jo load s/q,O 1NIVldW00 311:1 Ol 31nu CNV IV3ddV d0 331ION d0 301Ad3S d0 d00dd epaw aes gnepga wogm aJoiaq /ero go )o ainjeu6is h COMMONWEALTH OF PENNSYLVANIA rn11NTV nF• CUMBERLAND Mao. Dist. No 09-3-04 DJ Name: Hon. THOMAS A. PLACEY AtlfrBss 104 S. SPORTING HILL RD. MECHANICSBURG, PA Telapww (717) 761-8230 17055 LEONARD A. MIHALICH 1065 ORRS BRIDGE RD MECHANICSBURG, PA 17055 NOTICE O CND CASE /TRANSCRIPT PLAINTIFF: NAME and ADDRESS _ rMIHALICH, LEONARD A 1065 ORRS BRIDGE RD MECHANICSBURG, PA 17055 L _ VS. DEFENDANT: NAME and ADDRESS _ rGEHRET, GREGG A 2820 wALTONVILLE RD. HUMMELSTOWN, PA 17063 L J DocketNo.: CV-0000255-99 Date Filed: 7/02/99 ---A& THIS IS TO NOTIFY YOU THAT: Judgment: FOR PLAINTIFF ® Judgment was entered for: (Name) wTRAT.TeR; T.1mx&Rn a ® Judgment was entered against: (Name) cTaRRRT GRR['-[i a in the amount of $ 1,1 SR - nn on: (Date of Judgment) g/no0c) Defendants are jointly and severally liable. ? Damages will be assessed on: 7 This case dismissed without prejudice. Amount of Judgment Subject to Attachment/Act 5 of 1996 $ Levy is stayed for days or ? generally stayed. ? Objection to levy has been filed and hearing will be held: (Date & Time) Amount of Judgment Judgment Costs Interest on Judgment Attorney Fees Total Post Judgment Credits Post Judgment Costs Certified Judgment Total $ Date: Place: Time: ANY PARTY HAS THE RIGJHOJ 30 DAYS AFTE E ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PRERK pF THE C OF COMMON PL EAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY F JUDGM RANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. Date District Justice I'c?e[rt?ify?th/a?,t?thisIs a true and co, A co of th rd the proceedi staining the judgment. ?Mt1 Date District Justice 7 11 My commission expires first a of January , 0 4 SfL N AOPADW5`@,r?;) `k a ;, e1ra 1 tp PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF-CM-MA! 11l4,na,? ;$s AFFIDAVIT. I hereby swear or affirm that I served e a copy of the Notice of Appeal, Common Pleas No. 99•Col W "j , upon the District Justice designated therein on (date of service) y, O^ s' 49 ® by personal service ? by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) 120-111144 64#11ti , on Cta' S 19-11- D by personal service Irby (certified) (registered) mail, sender's receipt attached hereto. D and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom the Rule was addressed on , 19_ D by personal service D by (certified) (registered) mail. sender's receipt attached hereto, SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS -If 1.._._ DAY OF of c i marjo TWO of offlcfal My commission expres on ?? 79 d Notarial Seal A. Chestnut, Notary Public a Bono, Cumberland County [.,A4 mission Expires May 13, 2000 Member, Pennsylvania Association of Notaries Signature of affiant C W -r1 -p t7 Z _ti ?C cn : I (TI r n -i .. ?CJ }T ? SJ Z vC ? M ?m -I G aJ h SENDER: I also wish to resefve the follow- 13 CampMN Items t and/or 2 for sdtaloml samwms. ing services (for an extra fee): Canpl11te 1191118 3, 411, and 4b. O P1M your name and addm= m iris reveres of 1111 Mrm W Mat we can Mm this c vil t ' i o you. t • O Addressee s Address 17 Aftch No ions to the from of the mellplem, or on tl18 betlt x tp eo i does not Per". 2. O Restricted Delivery o ReceOt RequaeW-w Me 'Noes thea tle number. 0 The Retum RacW mill show to when 918 MOM wee delivered arW Me date rl O delivered. m It 3. Article Addressed to: 4a. Article N ¢ g E 4b Se 0 . ype ? Registered ed ? Express Mail ? Insured ? Return Receipt for Merchandise ? COD 7 D t f D li . a e o v e 5. Received By: a Addressee' Address (Only ffnsquest d 6 fee Is pai F4 Signature asset tx t) .. PS Fond 1, 0100111011W 19g'4 11112505-99-11-0223 Domestic Return Rtipt . Z 318 891 445 Us Postal Service Receipt for Certified Mail IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH ) Plaintiff ) vs. ) GREGG. A. GEHRET ) Defendant ) 94- GioS 0''".1 77- No. 6w0245-99 NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief 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 CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania Phone Number (717) 249-3166 . _r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH ) Plaintiff ) VS. ) GREGG. A. GEHRET ) Defendant ) 99. 4 /e J' !?ua -ral No. -Q' " COMPLAINT IN ASSUMPSIT AND NOW, comes Plaintiff and sets forth the following facts in support of his claim against the Defendant: 1. Plaintiff, Leonard A. Mihalich, is an individual who resides at 1065 Orrs Bridge Road, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 2. Defendant, Gregg A. Gehret, is an individual who resides at 2820 Waltonville Road, Hummelstown, Pennsylvania, 17062, and is the owner and operator of a home improvement company. 3. In the latter part of 1994, the parties entered into a contract, in Cumberland County, wherein defendant agreed to install a new roof, insulation and siding, and Plaintiff would pay Defendant approximately Twelve Thousand ($12,000.00) Dollars. Plaintiff has fulfilled his obligation to make full payment. Plaintiff has misplaced his copy of the contract, therefore, is unable to attach it as an exhibit. 4. In March or April of 1997, an average windstorm tore off some of the siding. Plaintiff discovered that the siding was not properly secured because the nails were improperly placed; they were not nailed into the studs. 5. Defendant admitted to Plaintiff on several occasions that the nails were too short to adequately secure the siding and they were not nailed in proper locations. 6. Defendant admitted under oath in District Court that he used the wrong nails and did not nail them into the studs. 7. Defendant breached the contract by failing to perform the installation of the insulation and siding in a proper and workmanlike manner that is acceptable in the trade; i.e., he used nails that were too short and the nails were positioned improperly.1The breach of contract occurred at the time the siding was installed. 8. The Defendant sold Plaintiff a defective product in that the nails were too short and not fit for the intended purpose, namely to adequately secure the siding, therefore, Defendant breached the implied warranty of fitness for the intended purpose, thus, Defendant breached the contract. 9. The Defendant's breach of contract will cause Plaintiff to replace the torn-off siding, which was damaged, and to remove all of the other siding and replace it with nails of proper length which are placed into the studs. See copy of quality of workmanship report attached hereto. 10. Cost of replacing siding that was damaged is $ 100.00 ; cost of removing and replacing all of the other siding is $ 3,281.0Q WHEREFORE, Plaintiff requests judgment against Defendant in the amount of 3,381.00 with costs and interest. Respectfully submitted, ..•.?y?Ly??s?l?aGr%as??.J )eonard A. Mihalic ,Plaintiff CENTRAL PENN HOME INSPECTIONS, INC. P.O. Box 343 63 Old Mill Road T. New Cumberland, PA 17070 Dillsburg, PA 17019 --? umaussoaTMa 717-774-3450 C P H I HOME iMSrECrans www.pane1wwrk.com/CPlll/ 717 432-7105 Toll Free 877-777-6222 Fax 717-502-0729 Date: October 19, 1999 To: Leonard A. Mihalich 1065 Orrs Bridge Road Mechanicsburg, PA 17055 From: Jerry Zimmerman Regarding: Siding and related work at 1065 Offs Bridge Road, Mechanisburg, PA Objective On October 16, 1999 I inspected the above property only for the purpose of assessing the quality of workmanship relative to the installation of vinyl siding. Observations Approximately 60 square feet of siding was missing from the rear wall of the house primarily from the second story. This permitted a visual inspection of the insulation sheathing and nailing applications. Furring strips were secured to the block wall at 24" centers on the first story. 1 inch Rboard was placed between the furring strips. Since the furring strips are approximately 3/4 inches thick and the Rboard is I inch thick, there was a gap left between the siding and the furring strip of approximately 1/4 inch. Three nails in approximately 20 feet under a deck were not driven straight and/or were not in the center of the slot of the siding. On the second story of the rear wall 1 inch Rboard was installed over 1 /2 inch Celotex insulation board. Studs were spaced 16 inches on center. Random inspection of nailing application revealed that approximately 10% of the nails did not penetrate the studs in this area or were just striking the edge of the studs. Siding on the north and south sides of the house was installed in the same manner as the rear. Two pieces of siding were lifted from the south side for visual inspection underneath. Three nails were found to be securing one 12 foot siding panel and nails were spaced 4 feet apart in another panel. Siding on the second story was loose in numerous areas as evidenced by bulges. Nail length was 2 inches determined by a random pulling of nails. Siding on the third or attic level of the north and south sides exhibited greater and more extensive bulging than on the lower levels. Approximately 50% of the siding was very loose. EXHIBIT A Siding on the front wall appeared more secure than the other house walls. Panels under the second story windows were very loose. No sill trim was used to secure it. The corner post on the southeast corner of the house was pushed in at the top. It appeared as if it was intentionally pushed in so that the rake board trim would overlap it at the top. But, the trim was no longer overlapping it resulting in a gap at the top. Corner posts on other corners were sealed at the top with no evidence of attempts to overlap the rake board trim over the top of it. The service entrance cable on the north wall was not secure to the wall. Clamps were loose, and the screws were not penetrating the furring strip or stud. Analysis and Recommendations Our client, Mr. Mihalich, indicated that Alside and the manufacturer of the vinyl siding applied to this home. Alside recommends to "nail every 16" if possible ". If furring strips were not already in place when this contractor installed the siding, furring strips should have been placed 16" on center instead of the 24" as observed. This would provide sufficient nailing surfaces to ensure secure attachment to exterior walls. The 1/4 inch gap left between the siding and the furring strip is not recommended. A 1/4 inch filler would be preferred. If the nails used penetrate the furring strips at least 3/4 inch, this gap may not present a problem. Nails must be positioned in the center of the panel flange and driven straight. All nails found not to meet this requirement should be replaced. All nails must penetrate studs or furring strips in order to hold the siding securely in place. Any loose nails or nails that missed the studs or furring strips must be inserted correctly. Since a random inspection of siding on the first story on the north and south side walls revealed nail spacing of 48 inches in approximately 15% of the panels, it is recommended that all the siding be lifted or removed and reinstalled correctly. Nails pulled from the second story siding were 2 inches long. The nails must pass through approximately 1 5/8 inches of material before they penetrate the studs. This would result in a 3/8 penetration into the stud. Alside states, "Nails must be long enough to penetrate 3/4 " into a solid underlayment." The underlayment would be the stud of furring strip. Therefore, nails used to hang this siding apparently would penetrate only half the distance recommended by the manufacturer. This is unacceptable and must be corrected. It is obvious that the loose and bulging siding on the upper stories of this house is primarily due to improper nail length. I recommend that the nails be replaced with ones that are at least 2 1/2" in length. Undersill trim should be installed under windows. This would prevent loose siding under the front windows. Comer post should be capped or sealed to prevent penetration of water behind it. Standard installation procedures normally do not involve placement of corner posts behind rake board trim as it was at the southwest corner of this house. This also was not consistent with the other corners of the same house where they were capped and sealed. Service entrance cables must be reinstalled after siding installation is completed. This cable was very loose. The weatherhead and cable clamps apparently were not adequately secured to the studs when it was replaced. The cable must be secured properly. Conclusions Numerous violations of standard trade practice and the manufacture's installation recommendations were noted. These include improper spacing of furring strips, nail spacing, nail placement and installation methods. It is recommended that changes be undertaken to ensure that siding installation conforms to the manufacturer's guidelines. Local building codes may also require adherence to these. Lyvnt,U Pfesidebt v Building Inspector OGT. -IT 99(TUE) 08:09 ?LSIDE 14I??D04V ORDER TEL:800 983 6160 P. 001 Att., J ?m? i zu a -Ps3 rte- T6z_. c-72 y Choosing a fastener Vinyl siding and accessories can be fas. rened in three ways: Nails. Either conventional or power-driven nails are accept- able. Whichever you choose, be certain to use aluminum, gal- vanized steel, cadmium-coated or other corrosion-resistant nails. Nails must be long enough to penetrate 3/a" into a solid underlavmenr. A 1 L/z" nail is best for most applications, although you may want to use a 2" nail for residing projects and a 2 E/z" nail (minimum) if you'll be nailing siding through backerboard. Nail heads should be at least Vs" in diameter, with a shank of/s" diameter. Staples. In general, the same guidelines apply to staples. Either conventonal or power-driven staples are acceptable if they are corrosion-resisrant. In addition, staples must be at least 16 gauge semi-flattened to an elliptical cross-section (see illustration). The staple crown should be at least hs" wide and the legs must be long enough to penetrare a so);d c? strate at least ;/,". Screws. Screws are used when siding is attached to walls built on metal studs. Use #8, corrosion-resisrant, self-rapping screws with a round washer head. Screws should be Ion g enough to penettace metal studs at least j/4". 1.2 Estimating material requirements. Siding and sof* estimates. Determining how much siding and soffit you'll need requires little more than basic math. The key is to divide the surface area of a home into basic geometric shapes. then calculate the total square footage. The illustrations below make it easy. Walls (excluding gables), rectangle: Calculate the square footage of a (Height) x (width) Repeat for all wall areas. = (surface area) Gable ends. Calculate the square footage of a triangle: (Height +l') x (/z width) Repeat for other gables. = (surface area) 7 OGT.-L9'99(TCE) 08 09 ALSIDE-11'1N'DOW ORDER TEL:800 982 6160 P. 00 2 Positioning fasteners. The key to positioning fasteners properly is to allow space for expansion and contraction. You can achieve chat goal by following these guidelines.. When '"stalling hortzo"ral siding or accessories. Position nails (or other fastener) in the center of nailing slots. On new construction, position nails over scuds, 16" on center. Do not skip studs. if it's impossible to position nails every 16", call Alside customer service for specific nailing recornmenda- rions. (The number is 1-800-922$009.) On remodeling projects, nail every 16" ;f possible. Be sure the substrate you're nailing into is even and solid. See page 19 for more derails. When installing vertical siding or accessories. Position the first nail (or other fastener) in the uppermost nailing slot so the panel or accessory hangs from the fastener. (See illustration.) The remaining fasreners are positioned in the center of nailing slots. When positioning vertical siding or accessories, remember to allow more room for expansion at the low end (see page 13). When installing soffit. Position fasreners in center of nailing slots, spaced 16" apart. if using Charter Oak'" reinforced vinyl soffit, nails can be placed •24" aparr. The panel's added rigidity will prevent sagging. 16 COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA AND NOW, this 41A day of 414;9t4-. , 1999, I, LEONARD A. MIHALICH, affirm that the facts set forth in the foregoing Complaint are true upon my personal knowledge and belief. I understand that my statements are made subject to 18 PA. Cons. Stat. §4904, providing for criminal penalties for unsworn falsification to authorities. Leonard A. Mihalic f.. w n, tip F: 4 aO R. O co 0 co ti,r C\j N 06.. L C': !QF?t Vs a a z ?s i?" a= CL J C? W 43 M ro a a + ? O 3 Lf) ? rti ~ w O ? µ? '+ w a a y & H v a U M dt ~ V ? p U) N Q,. a 0 N z ? ° a z IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA LEONARD A. MIHALICH Plaintiff VS. GREGG. A. GEHRET Defendant CIVIL ACTION - LAW (Arbitration) No. F -er 106- Ci'ld 40"/ b PI AFFIDAVIT OF SERVICE I, LEONARD A. MIHALICH, Plaintiff, affirm that I sent a copy of the "Complaint in Assumpsit" containing a "Notice to Plead" by certified mail on ?9- , 1999. The return receipt card relative to this service is attached hereto as Exhibit "A". I understand that my statements set forth herein are made subject to 18 Pa. Cons. Stat. §4904, providing for criminal penalties for unworn falsification to authorities. Conard A. Miha ch ¦ Complete items 1, 2, and 3. Also complete item 4 If Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mallpiece, or on the front if space permits. 1. Article Addressed to: G" A. (3f hner--r gap w?+D?vf'?I? ?2? r A. Received by (Please Print Clearly) I B. Agent Addre Is delkwy address Parent from item V ? Yes If YES, enter delivery address below: ? No Hum PW trv-Y09x11I ) P 3. ice Type O 6 ? CenMied Mail ? Express Mail / ? Registered ? Return Receipt for Merchandise ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number (Copy from service kbWA PS Form 3811, July 1999 Domestic Return Receipt 10259699-M-1789 i LLLJJJ C a O 4 W In ro w m a i ° o x a) a ri F V ? ,drn 0 Z in LEONARD A. MIHALICH, Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6105 CIVIL TERM GREGG A. GEHRET, CIVIL ACTION - LAW Defendant NOTICE TO PLEAD To: Leonard A. Mihalich, Plaintiff YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, Dated: tJov?m?en !Q )99'? By: JAMES, DURKIN & CONNELLY, LLP JARAD W. HANDE] Attorney I.D. #82629 P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 Attorney for Defendant, Gregg A. Gehret LEONARD A. MIHALICH, Plaintiff V. GREGG A. GEHRET, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6105 CIVIL TERM CIVIL ACTION - LAW DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT On or about June 30, 1994, Plaintiff and Defendant entered into a contract for Defendant's services of installation of siding on Plaintiffs home. Plaintiff believed and now alleges that Defendant breached the aforementioned contract. On or about October 22, 1999, Plaintiff filed a Complaint in this Honorable Court in support of his appeal from the September 9, 1999 judgment rendered by the Honorable District Justice Thomas A. Placey. A true and correct copy of the Complaint is attached hereto as Exhibit "A". PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER FOR LEGAL INSUFFICENCY OF PLEADING Defendant, by his undersigned attorney, preliminarily objects to Plaintiffs Complaint pursuant to Pa. R.C.P. 1028(a)(4) as follows: 4. Paragraph eight (8) of Plaintiffs Complaint alleges as follows: "The Defendant sold Plaintiff a defective product in that the nails were too short and not fit for the intended purpose, namely to adequately secure the siding, therefore, Defendant breached the implied warranty of fitness for the intended purpose, thus Defendant breached the contract." See Exhibit "A", ¶8. The allegations of paragraph eight (8) of Plaintiff's Complaint implicate §2315 of the Uniform Commercial Code, 13 Pa.C.S.A. §2315, dealing with implied warranties of fitness for a particular purpose. 6. Before the protections of the implied warranty of fitness for a particular purpose attach, there must be a sale of goods. Turnev Media Fuel Inc v Toll Bos Inc., 725 A.2d 836 (Pa. Super. 1999). The contract between Plaintiff and Defendant was for services, specifically Defendant's installation of siding on the Plaintiff's home. Supplying of services is not a "sale" within the meaning of the UCC for purposes of determining whether a seller or product falls within the purview of the UCC and whether one may be liable for breach of warranty. 9. The contract between Plaintiff and Defendant is not governed by the UCC, and there is no implied warranty of fitness for a particular purpose applicable to the transaction. Accordingly, any alleged breach of such warranty cannot serve as the basis for Defendant's alleged breach of the contract between the parties. WHEREFORE, Defendant respectfully requests that this Honorable Court grant his Preliminary objections in the nature of a demurrer and dismiss paragraph Eight (8) of Plaintiffs Complaint. PRELIMINARY OBJECTION RAISING INCLUSION OF SCANDALOUS OR IMPERTINENT MATTER Defendant, by his undersigned attorneys, preliminarily objects to Plaintiffs Complaint pursuant to Pa.R.C.P. 1028(a)(2) as follows: 10. Paragraph six (6) of Plaintiff's Complaint alleges as follows: "Defendant admitted under oath in District Court that he used the wrong nails and did not nail them into the studs." See Exhibit "A", 16. 11. The allegation set forth in paragraph six (6) of Plaintiffs' Complaint constitutes scandalous and/or impertinent matter pursuant to Pa.R.C.P. 1028(a)(2). 12. Plaintiff filed a timely Notice of Appeal from the judgment rendered on September 9, 1999 by the Honorable District Justice Thomas A. Placey. 13. Pursuant to Rule 1007 of the Rules of Civil Procedure Governing Actions and Proceedings Before District Justices, "[t]he proceeding on appeal shall be conducted de novo in accordance with the Rules of Civil Procedure that would be applicable if the action was initially commenced in the court of common pleas." 14. As the proceeding before this Honorable Court is de novo as prescribed by Rule 1007, any reference to testimony allegedly given at the District Justice hearing is improper. 15. There is no transcript of the testimony given before the District Justice, and consequently no way in which to verify the accuracy of Plaintiffs characterization of Defendant's testimony. 16. Plaintiff s inclusion of the averments of paragraph six (6) of the Complaint is intended to draw an improper inference of liability from testimony given at a proceeding which by Rule is irrelevant to the action before this Honorable Court. IT Defendant respectfully submits that he would suffer great prejudice if the allegations in paragraph six (6) of Plaintiffs' Complaint are permitted. WHEREFORE, Defendant respectfully requests that this Honorable Court strike the averments of paragraph Six (6) and order Plaintiff to remove from his Complaint said averments regarding the alleged admission of Defendant before the District Justice. PRELIMINARY OBJECTION RAISING INSUFFICIENT SPECIFICITY OF PLAINTIFFS' COMPLAINT Defendant, by his undersigned attorneys, preliminarily objects to Plaintiffs Complaint pursuant to Pa.R.C.P. 1028(a)(3) as follows: 18. Paragraph five (5) of Plaintiffs Complaint alleges as follows: "Defendant admitted to Plaintiff on several occasions that the nails were too short to adequately secure the siding and they were not nailed in proper locations." See Exhibit "A", ¶5. 19. Pa.R.C.P. 1019(f) requires that "averments of time, place and items of special damages shall be specifically stated." Pa.R.C.P. 1019(f) (emphasis added). 20. The averments of paragraph five (5) of Plaintiff s Complaint do not specifically state the time and place of the alleged admissions of Defendant. 21. Plaintiff bases his claim of breach of contract in part on the alleged admissions of Defendant. 22. Pa. R.C.P. 1019(a) requires that material facts on which a cause of action is based shall be stated in a concise and summary form. 23. The aforementioned paragraph five (5) of Plaintiffs Complaint fails to set forth with sufficient specificity the material facts relating to the alleged admission of Defendant on which Plaintiffs cause of action for breach of contract may be based. 24. Defendant can neither admit or deny the averments of paragraph five (5) of Plaintiff's Complaint without specific dates and times attached to the alleged admissions. 25. Plaintiff's Complaint lacks sufficient specificity to apprise Defendant of the issues to be litigated and to allow him to adequately prepare to assert defenses to Plaintiff's allegations. WHEREFORE, Defendant respectfully requests that this Honorable Court order Plaintiff to more specifically plead the averments of paragraph Five (5) of his Complaint, or alternatively, strike the allegations of paragraph Five (5) from the Complaint. PRELIMINARY OBJECTION RAISING INCLUSION OF SCANDALOUS OR IMPERTINENT MATTER Defendant, by his undersigned attorneys, preliminarily objects to Plaintiffs Complaint pursuant to Pa.R.C.P. 1028(a)(2) as follows: 26. Paragraph five (5) of Plaintiffs Complaint alleges as follows: "Defendant admitted to Plaintiff on several occasions that the nails were too short to adequately secure the siding and they were not nailed in proper locations." See Exhibit "A", ¶5. 27. The allegation set forth in paragraph five (5) of Plaintiffs Complaint constitutes scandalous and/or impertinent matter pursuant to Pa.R.C.P. 1028(a)(2). 28. Defendant cannot in good faith respond to the allegation in paragraph five (5) of Plaintiffs Complaint either in the affirmative or in the negative because an affirmative response would be a judicial admission which would be admissible at the time of trial and a negative response may be untruthful. 29. The allegations made by Plaintiff regarding alleged admissions of Defendant are properly reserved for direct or cross examination in the presentation of Plaintiff's case at trial. 30. The statements sought to be attributed to Plaintiff in paragraph five (5) of Plaintiffs Complaint constitute inadmissible hearsay, however, Plaintiff may attempt to use the mere allegation of an admission in paragraph five (5) during the presentation of his case as establishing the same for purposes of trial. 31. Defendant respectfully suggests that he would suffer great prejudice if the allegations in paragraph five (5) of Plaintiff s Complaint are permitted. WHEREFORE, Defendant respectfully requests that this Honorable Court order Plaintiff to remove from his Complaint the averments of paragraph Five (5) regarding the alleged admission of Defendant. Respectfully submitted, Dated: NokLer a -rz 10) 691? JAMES, SMITH, DURKIN & CONNELLY, LLP By: JARAD W. HANDELMAN, E QUIRE Attorney I.D. #82629 P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 Attorney for Defendant, Gregg A. Gehret Exhibit A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH ) Plaintiff ) vs. ) GREGG. A. GEHRET ) Defendant S9. 4/as' C- "VI/ Ae w) No. -?~ NOTICE TO DEFEND 7 1 - You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief 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 CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania Phone Number (717) 249-3166 TRUE COPY FROM RECOgD In T fttim" wherect, I )vr a unto wt my, hana and Um seal of said Cau ai Carisie, Pa. r ?. Kr rM ?L'o t?a_ 1g j y prothonotary IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION-LAW (Arbitration) LEONARD A. MIHALICH Plaintiff ) vs. ) GREGG. A. GEHRET ) Defendant ) No 7A e6v No. COMPLAINT IN ASSUMPSIT AND NOW, comes Plaintiff and sets forth the following facts in support of his claim against the Defendant: 1. Plaintiff. Leonard A. Mihalich, is an individual who resides at 1065 Orrs Bridge Road, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 2. Defendant, Gregg A. Gehret, is an individual who resides at 2820 Waltonville Road, Hummelstown, Pennsylvania, 17062, and is the owner and operator of a home improvement company. 3. In the latter part of 1994, the parties entered into a contract, in Cumberland County, wherein defendant agreed to install a new roof, insulation and siding, and Plaintiff would pay Defendant approximately Twelve Thousand ($12,000.00) Dollars. Plaintiff has fulfilled his obligation to make full payment. Plaintiff has misplaced his copy of the contract, therefore, is unable to attach it as an exhibit. 4. In March or April of 1997, an average windstorm tore off some of the siding. Plaintiff discovered that the siding was not properly secured because the nails were improperly placed; they were not nailed into the studs. 5. Defendant admitted to Plaintiff on several occasions that the nails were too short to adequately secure the siding and they were not nailed in proper locations. 6. Defendant admitted tinder oath in District Court that he used the wrong nails and did not nail them into the studs. 7. Defendant breached the contract by failing to perform the installation of the insulation and siding in a proper and workmanlike manner that is acceptable in the trade; i.e., he used nails that were too short and the nails were positioned improperly!: The breach of contract occurred at the time the siding was installed. 8. The Defendant sold Plaintiff a defective product in that the nails were too short and not fit for the intended purpose, namely to adequately secure the siding, therefore, Defendant breached the implied warranty of fitness for the intended purpose, thus, Defendant breached the contract. 9. The Defendant's breach of contract will cause Plaintiff to replace the torn-off siding, which was damaged, and to remove all of the other siding and replace it with nails of proper length which are placed into the studs. See copy of quality of workmanship report attached hereto. 10. Cost of replacing siding that was damaged is $ 1 nn 00 ; cost of removing and replacing all of the other siding is $ 3,281 00 . WHEREFORE, Plaintiff requests judgment against Defendant in the amount of $ 3,381.00 with costs and interest. Respectfully submitted, C Leonard A. Mihahch, laintiff P.O. Box 343 63 Old Mill Rued d 'l J„ New Cumberland, P:\ 17070 Uillsburg, PA 17019 ?an r n: 717-774-3450 7 17-432-7 105 -' Toll Free 977-777-6222 Pax 717-502-0729 Date: October 19, 1999 To: Leonard A. Mihalich 1065 Orrs Bridge Road Mechanicsburg, PA 17055 From: Jerry Zimmerman Regarding: Siding and related work at 1065 Orrs Bridge Road, Mechanisburg, PA Objective On October 16, 1999 I inspected the above property only for the purpose of assessing the quality of workmanship relative to the installation of vinyl siding. Observations Approximately 60 square feet of siding was missing from the rear wall of the house primarily from the second story. This permitted a visual inspection of the insulation sheathing and nailing applications. Furring strips were secured to the block wall at 24" centers on the first story. 1 inch Rboard was placed between the furring strips. Since the furring strips are approximately 3/4 inches thick and the Rboard is 1 inch thick, there was a gap left between the siding and the fuirring strip of approximately 1/4 inch. Three nails in approximately 20 feet under a deck were not driven straight and/or were not in the center of the slot of the siding. On the second story of the rear wall 1 inch Rboard was installed over 1/2 itch Celotex insulation board. Studs were spaced 16 inches on center. Random inspection of nailing application revealed that approximately 100,0 of the nails did not penetrate the studs in this area or were just striking the edge of the studs. Siding on the north and south sides of the house was installed in the same manner as the rear. Two pieces of siding were lifted from the south side for visual inspection underneath. Three nails were found to be securing one 12 foot siding panel and nails were spaced 4 feet apart in another panel. Siding on the second story was loose in numerous areas as evidenced by bulges. Nail length was 2 inches determined by a random pulling of nails. Siding on the third or attic levrt o'fthe north and south sides exhibited -renter and more extensive bulging than on Lie lower levels. Approximately 50% of the siding was very loose. EXHIBIT A Siding on the front wall appeared more secure than the other house walls. Panels under the second story windows were very loose. No sill trim was used to secure it. The corner post on the southeast corner of the house was pushed in at the top. It appeared as if it was intentionally pushed in so that the rake board trim would overlap it at the top. But, the trim was no longer overlapping it resulting in a gap at the top. Corner posts on other corners were sealed at the top with no evidence of attempts to overlap the rake board trim over the top of it. The service entrance cable on the north wall was not secure to the wall. Clamps were loose, and the screws were not penetrating the furring strip or stud. Analysis and Recommendations Our client, Mr. Mihalich, indicated that Alside and the manufacturer of the vinyl siding applied to this home. Alside recommends to "nail every 16" if possible ". If furring strips were not already in place when this contractor installed the siding, furring strips should have been placed 16" on center instead of the 24" as observed. This would provide sufficient nailing surfaces to ensure secure attachment to exterior walls. The 1/4 inch gap left between the siding and the furring strip is not recommended. A 1/4 inch tiller would be preferred. If the nails used penetrate the furring strips at least 3/4 inch, this gap may not present a problem. Nails must be positioned in the center of the panel flange and driven straight. All nails found not to meet this requirement should be replaced. All nails must penetrate studs or furring strips in order to hold the siding securely in place. Any loose nails or nails that missed the studs or furring strips must be inserted correctly. Since a random inspection of siding on the first story on the north and south side walls revealed nail spacing of 48 inches in approximately 15% of the panels, it is recommended that all the siding be lifted or removed and reinstalled correctly. Nails pulled from the second story siding were 2 inches long. The nails must pass through approximately 1 5/8 inches of material before they penetrate the studs. This would result in a 3/8 penetration into the stud. Alside states, "Nails must be long enough to penetrate 3/4 " into a solid underlayment." The underlayment would be the stud of furring strip. Therefore, nails used to hang this siding apparently would penetrate only half the distance recommended by the manufacturer. This is unacceptable and must be corrected. It is obvious that the loose and bulging siding on the upper stories of this house is primarily due to improper nail length. I recommend that the nails be replaced with ones that are at least 2 1/2" in length. Undersill trim should be installed under windows. This would prevent loose siding under the front windows. Corner post should be capped or sealed to prevent penetration of water behind it. Standard installation procedures no: rally do not involve placement of corner posts behind rake board trim as it was at the southwest corner of this house. This also was not consistent with the other corners of the same house where they were capped and sealed. Service entrance cables must be reinstalled after siding installation is completed. This cable was very loose. The weatherhead and cable clamps apparently were not adequately secured to the studs when it was replaced. The cable must be secured properly. Conclusions Numerous violations of standard trade practice and the manufacture's installation recommendations were noted. These include improper spacing of furring strips, nail spacing, nail placement and installation methods. It is recommended that changes be undertaken to ensure that siding installation conforms to the manufacturer's guidelines. Local building codes may also require adherence to these. ?[?]L?y??Y1UV?ll'l ivvy.'?i Presideftt v Building Inspector Choosing a fastener, Vinyl siding and accessories can be fas- tened in three ways: Nails. Eicher conventional or power-driven nails are accept- able. Whichever you choose, be certain to use aluminum, gal- vanized steel, cadmium-coated or other corrosion-resistant nails. Nails must be long enough to penetrate s/s" into a solid underlavmenr. A 11/ nail is best for mosr applications, although you may want to use a 2" nail for residing projects and a 21L" nail (minimum) if you'll be nailing siding through backerboard. Nail heads should be at least /s" in diameter, with a shank of 'A" diameter. Staples. In general, the same guidelines apply to staples. Either conventional or power-driven staples are acceptable if they are corrosion-resistant. In addition, staples must be at least 16 gauge semi-tlartened to an elliptical crass'-section (see illustration). The staple crown should be at least -h6" wide and the legs must be long enough to penetrate a solid sub- srrate at least }/.,", Screws. Screws are used when siding is attached to walls built on metal studs. Use #3, corrosion-resistant, self-rapping screws with a round washer head. Screws should be lone enough to penetrate metal studs at least j/;". 1? Estimating material requirements. Siding and so& estimates. Determining how much siding and soffit you'll-need requires little more than basic math. The key is to divide the surface area of a home into basic geometric shapes, then calculate the coral square footage. The illustraricns below make it easy. Walls (excluding gables). Calculate the square footage of a rectangle: ;Height_ Y (width) _ (surface area) Repeat for all wall areas. Gable ends. Calculate the square footage of a mangle: (Height +P) - %(11: width) _ (surface area) Repeat for ocher gables. -forts Positioning fasteners. The key to positioning `asteners properly is to allow space for expansion and contrac rion. You can achieve chat goal by following r:.ese guidelines: When installing horizontal siding or accessories: Position nails (or ocher fastener) in the center of nailing slors. On new construction, position nails over studs, 16" on center; Do not skip studs. If it's impossible to position nails every 16", call Alside customer service for specific nallirg recommenda- tions. (The number is 1-800-92-7-6009.) On remodeling projects, nail every 16" ;f possible. Be sure the substrate you're nailing into is even and solid. See page 19 for more deraiLs. When instaZling vertical siding or accessories: y T Position the first nail (or other fastener) in the uppermosr 0P * nailing slot so the panel or accessory hangs from the fastener. } (See illustration.) The remaining fasteners are positioned in the center of nailing slors. { When positioning vertical siding or accessories, remember to allow more room for expansion at the tow end (see page 13), When installing soffit: Position fasteners in center of nailing slots, spaced 16" apart. If using Charter Oak'" reinforced vinyl soffit, nails can be placed 24" apart. The panel's added rigidin• will prevent sagging. 16 COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA AND NOW, this ?A day of w?? , 1999, I, LEONARD A. MIHALICH, affirm that the facts set forth in the foregoing Complaint are true upon my personal knowledge and belief. I understand that my statements are made subject to 18 PA. Cons. Stat. §4904, providing for criminal penalties for unsworn falsification to authorities. b v°'! onard A. ihalich m o Cray 7 °z o z ? n d m m y ry ? ? ? N• H a x ro ( r > H a x ? a 0 LA 0 i 0 [?, H n a ? c ro [+ rq ?z (H(]? .Ti "11 L ce r 4 N, P4y -l-h C- 0 off --+e. Com /Ola 14 is ? Leonard A , Ivtiha.lick W ? a m NN m v? Oo¢a 2 P a?M-NO 6.M-, Z i r./o N ? U¢ o ? ¢ o x -? M e C O WFWM O N Jg r? cu, I? en 4 -•? .T..1 .ter q C_ U m c h M1 Ln r-4 V N O n U ¢ Q q ma L .Q Ol ?ma -dO ? c?nr CERTIFICATE OF SERVICE I, JARAD W. HANDELMAN, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Preliminary Objections upon the following below-named individual(s) by depositing the same in the U.S. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania this /0" day of November, 1999. SERVED UPON: Leonard A. Mihalich 1065 Orrs Bridge Road Mechanicsburg, PA 17055 JAMES, SMITH, DURKIN & CONNELLY, LLP r r? ?i ? Y Q: 1. ? J .,-?4 Q w a w a, a V w C a H 124 V) d ? 2 z £W tl rj H 0 Er r-I W a) HEW H a Ca W U) 0 { (j Ad g7 ; U >+ a 4 F a a 1 H O ? 0. I O U w U] a .? a v?? H D 2 £ mi - P 14 r-4 U44 A ..] °, a m Q0 ? C7 z? O 2.1E > H 4 ko U U Q O 2 y a i ? ra FC w ? N r '9 warn a ns p w rn a 144 0 w a w W H CA H z 2 O Ca ? % z 0" w H U 2 U a 0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW LEONARD A. MIHALICH ) Plaintiff ) vs. ) No. 99-6105 GREGG. A. GEHRET ) Defendant ) ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS Leonard A. Mihalich, plaintiff, sets forth the following in response to defendant's Preliminary objections: 1. Admitted; as further clarification, the installation of siding and insulation was part of a larger contract which included the installation of a new roof. The plaintiff purchased all material from defendant. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. It is admitted that plaintiff contracted with defendant to install the siding and insulation; however, this was just a part of a larger contract. The contract required plaintiff to purchase the material from the defendant. 8. The averments in this paragraph are non-factual; therefore, no response is required. To the extent that some response is required, plaintiff contends that if the contractual obligations include the purchase of goods and the installation of the purchased goods, the contractual obligations come within the purview of the UCC. 9. The averments in this paragraph are non-factual; therefore, no response is required. To the extent that some response is required, plaintiff's contentions in Paragraph "8" above are incorporated herein. It is further contended that the implied warranty of fitness for a particular purchase applies to the circumstances in this case. WHEREFORE, plaintiff respectfully requests this Honorable Court to deny and dismiss request for a demurrer and dismiss paragraph eight (8) of plaintiff's complaint. It is to be noted that plaintiff also contends defendant breached the contract by failing to install the siding and insulation in a proper and workmanlike manner that is acceptable in the trade. 10. Admitted. 11. Plaintiff denies that the averments in paragraph six (6) of plaintiffs complaint constitute scandalous and/or impertinent matter pursuant to Pa. R.C.P. 1028(a)(2). The aforesaid paragraph six (6) is a true and accurate factual description. It establishes defendant's breach of contract. Defendant has failed to be specific in what manner paragraph six (6) contains scandalous and/or impertinent matter. If defendant is referring to the word "wrong", this word is not impertinent because the complaint is very specific in describing what constituted the defective nature of the nails used by defendant. 12. Admitted. 13. Admitted. 14. Plaintiff contends that if this case was initially commenced in the Court of Common Pleas, plaintiff would be permitted to use admission by defendant that he breached the contract; therefore, plaintiff could use defendant's admissions at the District Justice hearing. If defendant is asked at the Arbitration hearing to state all times he made such admissions, is he permitted to give an inaccurate answer by ignoring an admission made at the District Justice hearing? 15. Plaintiff can testify as to defendant's admissions. The District Justice, in stating the facts he found, set forth the following: "Defendant or his agent allegedly admitted to using the wrong size nails and not nailing them into the studs." 16. Plaintiff denies defendant's contentions in this paragraph. No rule should be interpreted to avoid the truth and promote misrepresentations and untruth. 17. Plaintiff denies defendant would be prejudiced. Plaintiff agrees that the truthfulness of paragraph six (6) of plaintiffs complaint would be harmful to defendant's case, that is the way plaintiffs win cases; they establish evidence that is harmful to defendant's case. WHEREFORE, plaintiff respectfully requests the Honorable Court to deny defendant's request to strike paragraph six (6) of plaintiff s complaint. 18. Admitted. 19. Admitted; however, plaintiff contends that the requirements of Pa. R.C.P. 1019(f) apply to "special damages" and do not apply to the averments of paragraph five (5) of plaintiff's complaint. 20. Admitted. This specific information can be obtained by discovery. To avoid prolonged litigation, plaintiff states the defendant made these admissions on two occasions; once at the District Justice hearing; and second, shortly after some siding was blown off by the wind in approximately April, 1997. Plaintiff called defendant by phone and defendant made these admissions. 21. Admitted. 22. Admitted. Plaintiff contends he has complied with the provisions of Pa. R.C.P. 1019(a). 23. In response to the averments of this paragraph, plaintiff incorporates his answers in paragraphs 10 and 20, above. 24. In response to the averments in this paragraph, plaintiff incorporates his answers to paragraphs 23, 19 and 20, above. 25. Denied. The averments of this paragraph are too vague and general to enable plaintiff to be more specific in his denial. WHEREFORE, plaintiff respectfully requests this Honorable Court to deny defendant's request for more specific pleading. 26. Admitted. 27. In response to the averments in this paragraph, plaintiff incorporates his answers in paragraphs 11, 23, 19, and 20. 28. Admitted. Justice and this judicial proceedings are a quest for the truth even if the truth is, at times, harmful. 29. It is denied that admissions are reserved for direct oh cross-examination. A response to paragraph five (5) of plaintiff's complaint will tend to shorten this litigation and avoid costly and time-consuming discovery. 30. The averments in this paragraph are denied. Adverse admissions of a defendant are not inadmissible hearsay. Plaintiff is entitled to know if defendant denies making these admissions prior to trial so plaintiff can adequately prepare his case for trial. 31. Admitted. Plaintiff incorporates his answer in paragraph 28 above, and the rationale set forth in paragraph 17 above. WHEREFORE, plaintiff respectfully requests this Honorable Court to deny defendant's request to remove paragraph five (5) of plaintiffs complaint. Respectfully submitted, u' onard A. Mihali h COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA AND NOW, thiso2Q day of1999, I, LEONARD A. MIHALICH, affirm that the facts set forth in the foregoing Answer to Defendant's Preliminary Objections are true upon my personal knowledge and belief. I Understand that my statements are made subject to 18 PA. Cons. Stat. §4904, providing for criminal penalties for unsworn falsification to authorities. onard A. Mihalich IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH ) Plaintiff ) vs. ) No. 99-6105 GREGG. A. GEHRET ) Defendant ) AFFIDAVIT OF SERVICE 1. LEONARD A. MIHALICH, Plaintiff, do hereby certify that I served and true and correct copy of the foregoing "Answer to Defendant's Preliminary Objections" by depositing the same in the United States mail, postage pre-paid, this C?E day of 1999. Served upon: .farad W. Handelman, Esquire P.O. Box 650 Hershey, PA 17033-0650 onard A. Mihalicl ( h.. C1 Y F1- LAJ :1]0. CD ca a O m U 444 tw 43 w P0. !n z a ro s yV iV Z -? o a s CNZ N PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY: Please list the within matter for the next Argument Court. LEONARD A. MIHALICH, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 99-6105 CIVIL TERM GREGG A. GEHRET, CIVIL ACTION -LAW Defendant I. State matter to be argued: Defendant's Preliminary Objections 2. Identify counsel who will argue case: (a) For Plaintiff: Leonard A. Mihalich (pro se) 1065 Orrs Bridge Road Mechanicsburg, PA 17055 3 4. (b) For Defendant: Jarad W. Handelman, Esquire 134 Sipe Avenue Hummelstown, PA 17036 I will notify all parties in writing within two days that this case has been listed for argument. Argument Court Date Dated: December 30, 1999 March i 2000 Attorney for Defendant CERTIFICATE OF SERVICE I, JARAD W. HANDELMAN, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Praecipe for Listing Case for Argument upon the following below- named individual(s) by depositing the same in the U.S. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania this 30th day of December, 1999. SERVED UPON: Leonard A. Mihalich 1065 Orrs Bridge Road Mechanicsburg, PA 17055 JARAD W. HANDELMAN, ESQUIRE JAMES, SMITH, DURKIN & CONNELLY, LLP C.... C?7 ?;? J ? t i7 ?',? 'y ? ? ` ? J ' N -G IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH Plaintiff VS. GREGG A. GEHRET Defendant No. 99-6105 AFFIDAVIT OF SERVICE OF AND NOW, this 6-!? day of, aye 2000, plaintiff, Leonard A. iQ Mihalich, does hereby certify that on the day of ua.r 2000, he sent written interrogatories to Jarad W. Handelman, Esquire, (P.O. Box 650, Hershey, PA, 17033-0650), attorney for defendant, by certified mail. I understand that my statements set forth above are made subject to 18 Pa. Cons. Stat. Section 4904, providing for criminal penalties for unsworn falsification to authorities. C?e?onardA. Mih h, Plaintiff Luca N r Z q Ili 44 4 0 44 44 z 04 14 ° 4 F H z° a 5 o ul 0 r a LEONARD A. MIHALICH, Plaintiff V. GREGG A. GEHRET, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6105 CIVIL TERM CIVIL ACTION - LAW STIPULATION TO AMEND PLEADING It is hereby agreed between the undersigned that the above-named Plaintiff, Leonard A. Mihalich, may amend his Complaint in the above-captioned matter as proposed. Respectfully submitted, Dated: 1 .0 OO By: JARAD W. HANDEL SQUIRE Attorney I.D. #82629 JAMES, SMITH, DURKIN & CONNELLY, LLP P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 Attorney for Defendant Gregg A. Gehret Dated: 1- 3 1-oo By: 'LEONARD A. IHALICH Plaintiff (Pro S 1065 Orrs Bridge Road Mechanicsburg, PA 17055 : (r Lu t,. ? G? ? ?S V lli Ri U) 4 W a w JJ a » W C z u o R g a w O Ga Z O o 1 O FC H w He ] a s ¢3 i zy H UZ £ CLl aQ 0. p a > C7 H W OZH FC H£ 2 m¢ ay a V] W w S m H H z u £> O w z5H w a ti HUU a C7 B $4 a) H U ui O r-I i rn rn O z LEONARD A. MIHALICH, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 99-6105 CIVIL TERM GREGG A. GEHRET, CIVIL ACTION - LAW Defendant ° Z i PRAECIPE TO WITHDRAW DEFENDANT'S PRELIMINARY OBJECTIONS FROM ARGUMENT COURT A , 1rC W ?' TO THE PROTHONOTARY: IJ Pursuant to agreement of the undersigned, kindly withdraw the above captioned matter from the Argument Court scheduled for March 1, 2000. Respectfully submitted, Dated: 1 2.(0 Op By? JARAD W. HANDELMAN, ESQUIRE Attorney I.D. 482629 JAMES, SMITH, DURKIN & CONNELLY, LLP P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 Attorney for Defendant Gregg A. Gehret Dated: 51W B A A. M ALICH Plaintiff (Pro Se) 1065 Ors Bridge Road Mechanicsburg, PA 17055 C? L 'vac s?7 ?n w ? I Y G ?? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH Plaintiff VS. No. 99-6105 GREGG. A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT COMPANY Defendant AMENDED COMPLAINT The attached amended complaint is filed pursuant to PA R.C.P. Rule 1033, and with the consent of counsel for defendant. Plaintiff, Leonard A. Mihalich, does hereby state that he sent a certified copy of the amended complaint to attorney for defendant, Jarad W. Handelman, Esquire, P.O. Box 650, Hershey, PA, 17033-0650, by regular mail on the c9:;71, day of 2c?JV1C2f , 2000. Qe5tr7A. Mill Pro Se, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW LEONARD A. MIHALICH Plaintiff VS. No. 99-6105 GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT COMPANY Defendant NOTICE TO DEFEND 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 amended complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief 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 CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania Phone Number (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH Plaintiff VS. GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT COMPANY No. 99-6105 Civil Term Defendant AMENDED COMPLAINT AND NOW, comes plaintiff and presents an amended complaint setting forth facts in support of his original claim based on a breach of contract by improper, negligent, defective installation of vinyl siding; by failing to install the siding according to the siding manufacturer's requirement, and usage and custom of the trade; and improper, defective installation of the electric service line and other electrical fixtures (as requested in defendant's preliminary objections, the averments are set out with more specificity). This amended complaint also adds and joins plaintiffs claim under the "Unfair Trade Practice and Consumer Protection Law (73 P.S. Section 201, et seq.}. COUNT ONE 11. Paragraphs 1 through 9 of the original complaint, including the report of Jerry Zimmerman (attached to and incorporated in the original complaint) are incorporated herein as though copied herein in their entirety. 12. Plaintiff purchased all the material used on the job from defendant, including but not limited to, the siding, nails and insulation. 13. Specifically, the defendant's acts of improper, negligent, defective installation of the vinyl siding are as follows: a) Nails that were not driven straight or missed the solid part of the stud or furring were not pulled out and replaced properly; b) Too few nails were used to secure the siding. They were not placed 16-inches apart, where possible, as required by the manufacturer of the siding and the custom and usage of the trade; C) Nails were not placed in the center of the nailing slot or positioned in the center of the panel flange as required by the manufacturer of the siding; d) None of the nails were long enough to penetrate the solid underlayment (studs or furring strips)'/4 (three-quarters) of an inch as required by the manufacturer of the siding and as required by usage and custom of the trade; e) Trim was not used to properly secure the siding under the window; f) The rake board trim did not overlap the siding on the comer post, thus permitting water to penetrate behind the siding and damage the structure of the house; See Gabriel v. O'Hara. 543 A.2d 488 (Pa. Super. 1987) as precedent for such amendment. g) Furring strips and studs were placed twenty-four (24) inches "on center" instead of the required sixteen (16) inches "on center"; h) In the installation, defendant created a one-quarter (1/4) inch gap between siding and the solid underlayment, which is contrary to the usage and custom of the trade; i) Electric service entrance cable was removed and improperly replaced. The weatherhead and cable clamps were not adequately secured, thus creating a serious safety hazard. The defendant did not use competent and certified electricians; j) Defendant did not comply with the requirements of the local code and building permit; k) Defendant used unskilled, untrained, incompetent, and uncertified employees to work on plaintiff's home, and failed to properly supervise these employees. 14. All of the above mentioned defects were created and existed at the time defendant installed the siding and the quality of defendant's work was below the standards of that agreed to verbally or in writing. 15. All of the above improper, negligent, defective and poor workmanship acts require all of the siding to be removed and replaced. Some of the siding has been damaged; some of the siding will be damaged during removal to the extent they cannot be used. The removal of the siding and replacement of some of the siding will result in an inferior quality of siding and installation. 16. Removal and replacement of the siding will cause some damage to the insulation. 17. The total damages caused by defendant's improper, negligent, defective, poor workmanship, and the necessity of replacing the siding constitutes a serious "Major Problem". S. 18. At all times in the business relationship between plaintiff and defendant, defendant held himself out as operating under the trade name of "Easy Siders Home Improvement Company", therefore plaintiff has amended the complaint to correct the name of the defendant and to conform to the averments in the pleadings. WHEREFORE, plaintiff demands judgment against Gregg A. Gehret, trading as Easy Siders Home Improvement Company, in the amount of $ 416 5 COUNT TWO VIOLATION OF UNFAIR TRADE PRACTICE AND CONSUMER PROTECTION LAW (73. P.S. SECTION 201, ET. SEQ.) 19. All of the paragraphs in Count One of this amended complaint and the original complaint are incorporated herein as though copied in their entirety. 20. Just before the parties entered into the contract and while defendant was viewing plaintiffs home and evaluating the proposed construction, defendant informed plaintiff of his extensive (since 1974) and capable experience in home improvement construction. At this time, he informed plaintiff that there was some type of one-year warranty. Plaintiff responded that in view of his inexperience in such contracts and because of the expenditure of Twelve Thousand ($12,000.00) Dollars, what if a serious "major problem" was discovered after the one-year period. Defendant stated he stands behind his work and he would take care of it without charge. 21. Defendant repaired a bulge in the siding approximately one year after the job was completed. This was after the warranty period. 22. Shortly after repairing the first bulge, a second bulge appeared in the same area and shortly after the second bulge appeared, the wind blew off a large portion of the siding. Defendant was informed of these incidents and he said he would take care of the damage. Defendant agreed to make the repairs after plaintiff completed construction of his patio. These incidents occurred after expiration of the warranty period. 23. Plaintiff notified defendant several times that his patio was completed, however, defendant did not respond until his letter of October 29, 1998, wherein he stated because of the expiration of the warranty period, there would be a charge for any repairs. 24. Since the defects mentioned above causing the damage and necessity of replacing the siding occurred at the time of construction and existed within the warranty period, the warranty period does not apply to plaintiff's claims. 25. The defects above mentioned were such that they could not be discovered by expected and normal observation by the homeowner; the defects are latent defects. 26. Because the defects above mentioned were latent defects, because of the lifetime warranty on the siding, because it is reasonable to expect the siding to remain on the dwelling for more than a year, a workmanship warranty of one year is unreasonable and void. 27. Because of the gross, outrageous, negligence and magnitude of defendant's poor workmanship, he knew or should have known the following before and at the time he installed the siding: a) The nails used to secure the siding were too short, too few and improperly placed to adequately secure the siding; b) The damage that did occur was an expected consequence of his defective installation; C) The latent defects would not be discoverable by normal observation within the warranty period of one year; d) The imposition of a vague warranty of one year. V M All of the above circumstances created a likelihood of confusion or of misunderstanding and constituted fraudulent conduct within the meaning and scope of the "Unfair Trade and Consumer Protection Law." 28. Because defendant's defective construction was so grossly negligent and flagrant; because the defects were easily comprehended and recognizable by even persons inexperienced in home construction; because the defects were such that defendant knew or should have known of the seriousness of the defects and expected serious consequences of defendant's defective installation - the defendant's acts of construction are shocking, outrageous and intolerable. 29. The defendant's construction was inferior and below the standard of that agreed to verbally or in writing. WHEREFORE, plaintiff requests judgment against defendant in the amount of $ /D, 3 9 S oo , which is three times the actual damages of $_-3 y65 plus punitive damages and attorney fees as permitted by law. Respectfully submitted, eonard A. Mih itch, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH ) Plaintiff ) VS. ) GREGG A. GEHRET ) Defendant ) COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA No. 99-6105 AND NOW, thiso day of /&otAj I, LEONARD A. MIHALICH, affirm that the facts set forth in the foregoing Amended Complaint are true upon my personal knowledge and belief. I understand that my statements are made subject to 18 PA Cons. Stat. §4904, providing for criminal penalties for unsworn falsification to authorities. C;eonard A. M' alich Cz ? !J 8 0 LO w 44 p O +? £ ro 8 b 'O o & a z 0 4?' ro s a H 4 b rn FCC z m LEONARD A. MIHALICH, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 99-6105 GREGG A. GEHRET, CIVIL ACTION -LAW Defendant CERTIFICATE OF SERVICE AND NOW, this 25th day of February, 2000, I, JARAD W. HANDELMAN, Esquire, Attorney for Defendant, hereby certify that I have this day sent a copy of Answers to Written Interrogatories by depositing a certified copy of the same in the United States mail, postage prepaid, at Hershey, Pennsylvania, addressed to: Leonard A. Mihalich 1065 Orrs Bridge Road Mechanicsburg, PA 17055 JAR-AD W. HANDELM , squire I.D. No. 82629 James, Smith, Durkin & Connelly LLP P.O. Box 650 Hershey, PA 17033 (717) 533-3280 r tr+ r ? _ S ? s ?} P} x 0 O U m? a ?> a w a w i, a a >4 w t~ w a z L H a V z z c c > M 0 43 w Ea m w o Rg X: a) ul H a U H °' Q U as a U > DU W Z a 4 E U O x oa I m w w 8 U zz z , A a z w v af]OH > U' H >" U 4 H ? ?y U4koU .a 1 4 A 4 E VI a a x z U U U M ° ?o w a a U 1 LEONARD A. MIHALICH, Plaintiff v. GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT CO. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6105 CIVIL TERM CIVIL ACTION - LAW NOTICE TO PLEAD To: Leonard A. Mihalich, Plaintiff YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Dated: March 15, 2000 Respectfully submitted, JAMES, SMITH, DURKIN & CONNELLY, LLP -?: By: JARAD W. HA LMAN, ESQUIRE Attorney I.D. #82629 P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 Attorney for Defendant, Gregg A. Gehret LEONARD A. MIHALICH, Plaintiff V. GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT CO. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6105 CIVIL TERM CIVIL ACTION - LAW DEFENDANT'S RELIMINARY OBJECTIONS TO PLAINTIFF' AMEND D COMPLAINT AND NOW, comes Defendant, GREGG A. GEHRET, by and through his attorneys, James, Smith, Durkin & Connelly, LLP, and preliminarily objects to Plaintiffs Amended Complaint in the nature of a demurrer to Count II and Paragraph Eleven (11) thereof pursuant to Pa.R.C.P. 1028(a)(4). In support thereof, Defendant respectfully submits as follows: On or about June 30, 1994, Plaintiff and Defendant entered into a contract for Defendant's services of installation of siding on Plaintiffs home. 2. Plaintiff believed and now alleges that Defendant breached the aforementioned contract. 3. There were no written warranties made in or incorporated into the contract between Plaintiff and Defendant. 4. On or about October 22, 1999, Plaintiff filed a Complaint in this Honorable Court in support of his appeal from the September 9, 1999 judgment rendered by the Honorable District Justice Thomas A. Placey. Unfair Trade Practices and Consumer Protection Law (hereinafter "UTPCPL"). A true and correct copy of the Amended Complaint is attached hereto as Exhibit "A 11. 6. Plaintiffs Complaint fails to state a cause of action under the UTPCPL for the reasons more fully set forth herein. PRELIMINARY OBJECTION TO O T II OF PLAINTIFFAMENDED COMPLAINT i THE NATURE OF A DEMURRER FOR LEGAL INSUFFICIENCY OF PLEADING Defendant, by his undersigned attorney, preliminarily objects to Plaintiffs Complaint pursuant to Pa. R.C.P. 1028(a)(4) as follows: 7. Count II of Plaintiffs Complaint alleges violation of the UTPCPL, 73 Pa.C.S.A. §201 et seq. See Amended Complaint, Count II, ¶¶19-29. 8. Plaintiff alleges that "bulging" in the siding on his home occurred as a result of Defendant's faulty workmanship. See Amended Complaint, ¶¶20-22. 9. Specifically, Plaintiff alleges that Defendant failed to use nails of the proper length, failed to properly space the nails on the siding, and failed to use an adequate number of nails, all constituting "defective construction" and resulting in Defendant's failure to adequately secure the siding to Plaintiffs home. See Amended Complaint, ¶¶20-27. 10. Plaintiff alleges generally that "[D]efendant's defective construction" caused the alleged damages sustained by Plaintiff as a result of the siding on his home. See Amended Complaint, ¶28. 11. The allegations of Plaintiffs Complaint constitute nonfeasance on the part of Defendant which is insufficient to state a claim under the UTPCPL. 12. There are no written warranties between Plaintiff and Defendant and therefore §201-2(4)(xvi) of the UTPCPL does not apply. 13. Plaintiff has failed to adequately allege any fraudulent or deceptive conduct on behalf of Defendant that could sustain a cause of action under the UTPCPL. 14. Plaintiffs Amended Complaint fails to state a cause of action under the UTPCPL. WHEREFORE, Defendant respectfully requests that this Honorable Court grant his Preliminary Objections in the nature of a demurrer and dismiss Count II of Plaintiff's Amended Complaint with prejudice. PRELIMINARY OBJECTION TOT ARR PH E V VV (111 OF P AINTIFF'S AMENDED COMPLAINT IN THE NAT F OF A DEML?RFR FOR LEGAL INSUFFICI N Y OF P EADIN Defendant, by his undersigned attorney, preliminarily objects to Plaintiffs Amended Complaint pursuant to Pa. R.C.P. 1028(a)(4) as follows: 15. Paragraph Eleven (11) of Plaintiffs Amended Complaint references and incorporates paragraph eight (8) of the Original Complaint into the Amended Complaint. A true and correct copy of Plaintiffs Original Complaint is attached hereto as Exhibit "B". 16. Paragraph Eight (8) of Plaintiff's Original Complaint alleges as follows: "The Defendant sold Plaintiff a defective product in that the nails were too short and not fit for the intended purpose, namely to adequately secure the siding, therefore, Defendant breached the implied warranty of fitness for the intended purpose, thus Defendant breached the contract." See Original Complaint, ¶8. IT The allegations of paragraph Eight (8) of Plaintiffs Original Complaint implicate §2315 of the Uniform Commercial Code, 13 Pa.C.S.A. §2315, dealing with implied warranties of fitness for a particular purpose. 18. Before the protections of the implied warranty of fitness for a particular purpose attach, there must be a sale of goods. Turnev Media Fuel Inc v Toll Boy Inc., 725 A.2d 836 (Pa. Super. 1999). 19. The contract between Plaintiff and Defendant was for services, specifically Defendant's installation of siding on the Plaintiffs home. 20. Supplying of services is not a "sale within the meaning of the UCC for purposes of determining whether a seller or product falls within the purview of the UCC and whether one may be liable for breach of warranty. 21. The contract between Plaintiff and Defendant is not governed by the UCC, and there is no implied warranty of fitness for a particular purpose applicable to the transaction. Accordingly, any alleged breach of such warranty cannot serve as the basis for Defendant's alleged breach of the contract between the parties. WHEREFORE, Defendant respectfully requests that this Honorable Court grant his Preliminary Objections in the nature of a demurrer and dismiss paragraph Eleven (11) of Plaintiffs Amended Complaint with prejudice insofar as said paragraph references and incorporates paragraph Eight (8) of Plaintiffs Original Complaint. Respectfully submitted, JAMES, SMITH, DURKIN & CONNELLY, LLP Dated: March 15, 2000 By: JARAD W. HANDELMAN, ESQUIRE Attorney I.D. #82629 P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 Attorney for Defendant, Gregg A. Gehret VERIFICATION The undersigned, Defendant, Gregg A. Gehret, hereby verifies that the facts set forth in the foregoing Preliminary Objections are true and correct to the best of his knowledge, information and belief and further states that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unworn falsification to authorities. i Ext" A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH Plaintiff Vs. No. 99-6105 GREGG. A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT COMPANY Defendant AMENDED COMPLAINT The attached amended complaint is filed pursuant to PA R.C.P. Rule 1033, and with the consent of counsel for defendant. Plaintiff, Leonard A. Mihalich, does hereby state that he sent a certified copy of the amended complaint to attorney for defendant, Jarad W. Handelman, Esquire, P.O. Box 650, Hershey, PA, 17033-0650, by regular mail on the ? day of /?R?' 1J?1v4H , 2000. and . Mihali Pro Se, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW LEONARD A. MIHALICH Plaintiff VS. No. 99-6105 GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT COMPANY Defendant NOTICE TO DEFEND 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 amended complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief 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 CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania Phone Number (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH Plaintiff VS. GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT COMPANY No. 99-6105 Civil Tenn Defendant AMENDED COMPLAINT AND NOW, comes plaintiff and presents an amended complaint setting forth facts in support of his original claim based on a breach of contract by improper, negligent, defective installation of vinyl siding; by failing to install the siding according to the siding manufacturer's requirement, and usage and custom of the trade; and improper, defective installation of the electric service line and other electrical fixtures (as requested in defendant's preliminary objections, the averments are set out with more specificity). This amended complaint also adds and joins plaintiff s claim under the "Unfair Trade Practice and Consumer Protection Law (73 P.S. Section 201, et seq.)' COUNT ONE 11. Paragraphs 1 through 9 of the original complaint, including the report of Jerry Zimmerman (attached to and incorporated in the original complaint) are incorporated herein as though copied herein in their entirety. 12. Plaintiff purchased all the material used on the job from defendant, including but not limited to, the siding, nails and insulation. 13. Specifically, the defendant's acts of improper, negligent, defective installation of the vinyl siding are as follows: a) Nails that were not driven straight or missed the solid part of the stud or furring were not pulled out and replaced properly; b) Too few nails were used to secure the siding. They were not placed 16-inches apart, where possible, as required by the manufacturer of the siding and the custom and usage of the trade; s/0 F C) Nails were not placed in the center of the nailing4e4 or positioned in the center of the panel flange as required by the manufacturer of the siding; d) None of the nails were long enough to penetrate the solid underlayment (studs or furring strips) 1/4 (three-quarters) of an inch as required by the manufacturer of the siding and as required by usage and custom of the trade; e) Trim was not used to properly secure the siding under the window; f) The rake board trim did not overlap the siding on the corner post, thus permitting water to penetrate behind the siding and damage the structure of the house; ' See Gabriel v. O'Hara 543 A.2d 488 (Pa. Super. 1987) as precedent for such amendment. g) Furring strips and studs were placed twenty-four (24) inches "on center" instead of the required sixteen (16) inches "on center"; h) In the installation, defendant created a one-quarter (1/4) inch gap between siding and the solid underlayment, which is contrary to the usage and custom of the trade; i) Electric service entrance cable was removed and improperly replaced. The weatherhead and cable clamps were not adequately secured, thus creating a serious safety hazard. The defendant did not use competent and certified electricians; j) Defendant did not comply with the requirements of the local code and building permit; k) Defendant used unskilled, untrained, incompetent, and uncertified employees to work on plaintiffs home, and failed to properly supervise these employees. 14. All of the above mentioned defects were created and existed at the time defendant installed the siding and the quality of defendant's work was below the standards of that agreed to verbally or in writing. 15. All of the above improper, negligent, defective and poor workmanship acts require all of the siding to be removed and replaced. Some of the siding has been damaged; some of the siding will be damaged during removal to the extent they cannot be used. The removal of the siding and replacement of some of the siding will result in an inferior quality of siding and installation. 16. Removal and replacement of the siding will cause some damage to the insulation. 17. The total damages caused by defendant's improper, negligent, defective, poor workmanship, and the necessity of replacing the siding constitutes a serious "Major Problem". 18. At all times in the business relationship between plaintiff and defendant, defendant held himself out as operating under the trade name of "Easy Siders Home Improvement Company", therefore plaintiff has amended the complaint to correct the name of the defendant and to conform to the averments in the pleadings. WHEREFORE, plaintiff demands judgment against Gregg A. Gehret, trading as Easy Siders Home Improvement Company, in the amount of $ 3H6,5' COUNT TWO VIOLATION OF UNFAIR TRADE PRACTICE AND CONSUMER PROTECTION LAW (73. P.S. SECTION 201, ET. SEQ.) 19. All of the paragraphs in Count One of this amended complaint and the original complaint are incorporated herein as though copied in their entirety. 20. Just before the parties entered into the contract and while defendant was viewing plaintiff's home and evaluating the proposed construction, defendant informed plaintiff of his extensive (since 1974) and capable experience in home improvement construction. At this time, he informed plaintiff that there was some type of one-year warranty. Plaintiff responded that in view of his inexperience in such contracts and because of the expenditure of Twelve Thousand ($12,000.00) Dollars, what if a serious "major problem" was discovered after the one-year period. Defendant stated he stands behind his work and he would take care of it without charge. 21. Defendant repaired a bulge in the siding approximately one year after the job was completed. This was after the warranty period. 22. Shortly after repairing the first bulge, a second bulge appeared in the same area and shortly after the second bulge appeared, the wind blew off a large portion of the siding. Defendant was informed of these incidents and he said he would take care of the damage. Defendant agreed to make the repairs after plaintiff completed construction of his patio. These incidents occurred after expiration of the warranty period. 23. Plaintiff notified defendant several times that his patio was completed, however, defendant did not respond until his letter of October 29, 1998, wherein he stated because of the expiration of the warranty period, there would be a charge for any repairs. 24. Since the defects mentioned above causing the damage and necessity of replacing the siding occurred at the time of construction and existed within the warranty period, the warranty period does not apply to plaintiffs claims. 25. The defects above mentioned were such that they could not be discovered by expected and normal observation by the homeowner; the defects are latent defects. 26. Because the defects above mentioned were latent defects, because of the lifetime warranty on the siding, because it is reasonable to expect the siding to remain on the dwelling for more than a year, a workmanship warranty of one year is unreasonable and void. 27. Because of the gross, outrageous, negligence and magnitude of defendant's poor workmanship, he knew or should have known the following before and at the time he installed the siding: a) The nails used to secure the siding were too short, too few and improperly placed to adequately secure the siding; b) The damage that did occur was an expected consequence of his defective installation; C) The latent defects would not be discoverable by normal observation within the warranty period of one year; d) The imposition of a vague warranty of one year. All of the above circumstances created a likelihood of confusion or of misunderstanding and constituted fraudulent conduct within the meaning and scope of the "Unfair Trade and Consumer Protection Law." 28. Because defendant's defective construction was so grossly negligent and flagrant; because the defects were easily comprehended and recognizable by even persons inexperienced in home construction; because the defects were such that defendant knew or should have known of the seriousness of the defects and expected serious consequences of defendant's defective installation - the defendant's acts of construction are shocking, outrageous and intolerable. 29. The defendant's construction was inferior and below the standard of that agreed to verbally or in writing. WHEREFORE, plaintiff requests judgment against defendant in the amount of $ which is three times the actual damages of $4 plus punitive damages and attorney fees as permitted by law. Respectfully submitted, eon d A. Mihalich laintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH ) Plaintiff ) VS. ) GREGG A. GEHRET ) Defendant ) COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA No. 99-6105 AND NOW, thiscp day of,/t4 I, LEONARD A. MIHALICH, affirm that the facts set forth in the foregoing Amended Complaint are true upon my personal knowledge and belief. I understand that my statements are made subject to 18 PA Cons. Stat. §4904, providing for criminal penalties for unsworn falsification to authorities. ell .e arA. Mihali ZZ I-7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH ) Plaintiff ) VS. ) GREGG. A. GEHRET ) ) Defendant ) 99- /e 7r4 No. NOTICE TO DEFEND _ -, r You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief 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 CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania Phone Number (717) 249-3166 TRUE COPY FROA4 13ECORD in Tesoro" whereof, I urta sit my hand and tba saal of said Ccurl ai Car,, sie, pa. rhf z .1..Kr "flonctary IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH ) Plaintiff ) vs. ) GREGG. A. GEHRET ) Defendant No 9 ?4 T&Ie?n No. COMPLAINT IN ASSUMPSIT AND NOW, comes Plaintiff and sets forth the following facts in support of his claim against the Defendant: 1. Plaintiff. Leonard A. Mihalich, is an individual who resides at 1065 Orrs Bridge Road, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 2. Defendant, Gregg A. Gehret, is an individual who resides at 2820 Waltonville Road, Hummelstown, Pennsylvania, 17062, and is the owner and operator of a home improvement company. I In the latter part of 1994, the parties entered into a contract, in Cumberland County, wherein defendant agreed to install a new roof, insulation and siding, and Plaintiff would pay Defendant approximately Twelve Thousand ($12,000.00) Dollars. Plaintiff has fulfilled his obligation to make full payment. Plaintiff has misplaced his copy of the contract, therefore, is unable to attach it as an exhibit. 4. In March or April of 1997, an average windstorm tore off some of the siding. Plaintiff discovered that the siding was not properly secured because the nails were improperly placed; they were not nailed into the studs. 5. Defendant admitted to Plaintiff on several occasions that the nails were too short to adequately secure the siding and they were not nailed in proper locations. 6. Defendant admitted under oath in District Court that he used the wrong nails and did not nail them into the studs. 7. Defendant breached the contract by failing to perform the installation of the insulation and siding in a proper and workmanlike manner that is acceptable in the trade; i.e., he used nails that were too short and the nails were positioned improperly. The breach of contract occurred at the time the siding was installed. 8. The Defendant sold Plaintiff a defective product in that the nails were too short and not fit for the intended purpose, namely to adequately secure the siding, therefore, Defendant breached the implied warranty of fitness for the intended purpose, thus, Defendant breached the contract. 9. The Defendant's breach of contract will cause Plaintiff to replace the torn-off siding, which was damaged, and to remove all of the other siding and replace it with nails of proper length which are placed into the studs. See copy of quality of workmanship report attached hereto. 10. Cost of replacing siding that was damaged is cost of removing and replacing all of the other siding is $ 3.281 i oo . WHEREFORE, Plaintiff requests judgment against Defendant in the amount of 3,381.00 with costs and interest. Respectfully submitted, C onard A. M?halich, Plaintiff l ), P.U. Box 343 63 Old Nlill Road Ncw Cumberland, PA 17070 Dillsburg, RA 17019 a•, rn . r.. rr?a 717-774-3450 ,c:i e '??. ?^r 717-432.7105 Toll Free 377-777-6222 Fax 717-502-0729 Date: October 19, 1999 To: Leonard A. Mihalich 1065 Orrs Bridge Road Mechanicsburg, PA 17055 From: Jerry Zimmerman Regarding: Siding and related work at 1065 Orrs Bridge Road, Mechanisburg, PA Objective On October 16, 1999 I inspected the above property only for the purpose of assessing the quality of workmanship relative to the installation of vinyl siding. Observations Approximately 60 square feet of siding was missing from the rear wall of the house primarily from the second story. This permitted a visual inspection of the insulation sheathing and nailing applications. Furring strips were secured to the block wall at 24" centers on the first story. I inch Rboard was placed between the furring strips. Since the furring strips are approximately 3/4 inches thick and the Rboard is 1 inch thick, there was a gap left between the siding and the &arring strip of approximately 1/4 inch. Three nails in approximately 20 feet under a deck were not driven straight and/or were not in the center of the slot of the siding. On the second story of the rear wall 1 inch Rboard was installed over I/2 inch Celotex insulation board. Studs were spaced 16 inches on center. Random inspection of nailing application revealed that approximately 100,0 ofthe nails did not penetrate the studs in this area or werejust striking the edge of the studs. Siding on the north and south sides of the house was installed in the same manner as the rear. Two pieces of siding were lifted from the south side for visual inspection underneath. Three nails were found to be securing one 12 foot siding panel and nails were spaced 4 feet apart in another panel. Siding on the second story was loose in numerous areas as evidenced by bulges. Nail length was ?inches determined by a random pulling of nails. Siding on the third or attic level ofthe north and south sides exhibited greater and more extensive bulging than on t,:e lower levels. Approximately 50°'0 of the siding was very loos;;. EXHIBIT A Siding on the front wall appeared more secure than the other house walls. Panels under the second story windows were very loose. No sill trim was used to secure it. The corner post on the southeast corner of the house was pushed in at the top. It appeared as if it was intentionally pushed in so that the rake board trim would overlap it at the top. But, the trim was no longer overlapping it resulting in a gap at the top. Corner posts on other corners were sealed at the top with no evidence of attempts to overlap the rake board trim over the top of it. The service entrance cable on the north wall was not secure to the wall. Clamps were loose, and the screws were not penetrating the furring strip or stud. Analysis and Recommendations Our client, Mr. Mihalich, indicated that Alside and the manufacturer of the vinyl siding applied to this home. Alside recommends to "nail every 16" if possible ". If furring strips were not already in place when this contractor installed the siding, furring strips should have been placed 16" on center instead of the 24" as observed. This would provide sufficient nailing surfaces to ensure secure attachment to exterior walls. The 1/4 inch gap left between the siding and the furring strip is not recommended. A I/4 inch tiller would be preferred. If the nails used penetrate the furring strips at least 3/4 inch, this gap may not present a problem. Nails must be positioned in the center of the panel flange and driven straight. All nails found n®t to meet this requirement should be replaced. All nails must penetrate studs or furring strip's in order to hold the siding securely in place. Any loose nails or nails that missed the studs or furring strips must be inserted correctly. Since a random inspection of siding on the first story on the north and south side walls revealed nail spacing of 48 inches in approximately 15% of the panels, it is recommended that all the siding be lifted or removed and reinstalled correctly. Nails pulled from the second story siding were 2 inches long. The nails must pass through approximately 1 5/8 inches of material before they penetrate the studs. This would result in a 3/8 penetration into the stud. Alside states, "Nails must be long enough to penetrate 3/4 " into a solid underlayment." The underlayment would be the stud of furring strip. Therefore, nails used to hang this siding apparently would penetrate only half the distance recommended by the manufacturer. This is unacceptable and must be corrected. It is obvious that the loose and bulging siding on the upper stories of this house is primarily due to improper nail length. 1 recommend that the nails be replaced with ones that are at least 2 1/2" in length. Undersill trim should be installed under windows. This would prevent loose siding under the front windows. Corner post should be capped or sealed to prevent penetration of water behind it. Standard installation procedures normally do not involve placement of corner posts behind rake board trim as it was at the southwest corner of this house. This also was not consistent with the other corners of the same house where they were capped and sealed. Service entrance cables must be reinstalled after siding installation is completed. This cable was very loose. The weatherhead and cable clamps apparently were not adequately secured to the studs when it was replaced. The cable must be secured properly. Conclusions Numerous violations of standard trade practice and the manufacture's installation recommendations were noted. These include improper spacing of furring strips, nail spacing, nail placement and installation methods. It is recommended that changes be undertaken to ensure that siding installation conforms to the manufacturer's guidelines. Local building codes may also require adherence to these. ('ri'JII iL '?l.J'1ivl?+ N Preside' t Building Inspector Itry-L,M? xxef °7 ?sS. ? SGL C7a2c/ Choosing a fastener. Vinyl siding and accessories can be fas- tened in Three ways: Nails. Eicher conventional or power-driven nails are accept- able. Whichever you choose, be certain cc use aluminum, gal- van zed steel, cadmium-coated or other corrosion-resistant nails. Nails must be long enough to penetrate 3/4,1 into a solid underlaymenr. A 1 V-1 " nail is best for most applications, although you may want to use a 2" nail for residing projects and a 2 Y," nail (minimum) if you'll be nailing siding through backerboard. Nail heads should be at least'/s" in diameter, with a shank of Vs" diameter. Staples. In general, the same guidelines apply to staples. Either conventional or power-driven staples are acceptable if they are corrosion-resistant. In addition, staples must be at least 16 gauge semi-flanened to an elliptical cross-secrion (see illustration). The staple crown should be at least 'he" wide and the legs must be long enough to penetrare a solid sub- srrare at least ah"• Screws. Screws are used when siding is attached co walls built nn metal scuds. Use #3, corrosion-resistant, self-rapping screws with a round washer head. Screws should be lone enough to penetrate metal studs at least 3/4". 1.3 Estimating material requirements. Siding and soft estimates. Determining how much siding and soffit you'll need requires liale more than basic math. The key is to divide the surface area of a home into basic geometric shapes. then calculate the coral square footage. The illustrations below make it easy. Walls (excluding gables), Calculate the square footage of a rectangle: Heighc) x (width) _ (surface area) Repeat for all wall areas. Gable ends. Calculate the square footage of a triangle: (Height + 1') Repeat for other gables. x (1/d width) = (surface area) Positioning fasteners. The key to positioning fasteners properly is to allow space for expansion and eonrracdon. You can achieve chat goal by following rhese guidelines: When installing horizontal siding or accessories: Position nails (or other Fastener) in the center of nailing slots. On new construction, position nails over studs, 16" on center. Do nor skip studs. If it's impossible to position nails every 16", cal! Alside customer service for specific naJL-g recommenda- cions•. (The number is 1-800-92-7-6009.) On remodeling projects, nail every 16" SF possible. Be sure the substrate vou're nailing inro is even and solid. See page 19 for more deraiLs. When installing vertical siding or accessories: Position the first nail (or other fastener) in the uppermost nailing sloe so the panel or accessory hangs from the fastener (See illustration.) The remaining fasteners are posicioned in the center of nailing slurs. When positioning vertical siding or accessories, remember to allow more room for expansion at the low end (see page 13). When installing soffit., Position fasteners in center of nailing slots, spaced 16" apart. If using Charter Oak'" reinforced vinyl soffit, nails can be placed 34" apart. The panel's added rigidin- will prevent sage pi 16 COUNTY OF CUMBERLAND ) COMMONWEALTH OF PENNSYLVANIA ) AND NOW, this -3A day of Lvcl/a-C.w , 1999, I, LEONARD A. MIHALICH, affirm that the facts set forth in the foregoing Complaint are true upon my personal knowledge and belief. I understand that my statements are made subject to 18 PA. Cons. Stat. §4904, providing for criminal penalties for unswom falsification to authorities. b ona n rno gz a N o z 0 z K d [s?y (?j? d C' C W ? I ? ? :??Uyy ? tq w'i r Z y 1,01 ° x o n H b m r c Ln z° a c ' car > 0 IZJ Cc,o 0?4 e Cv7^Ir?2?n? i??d Lenard R , Miha?lick W U'i Q ? a m v N N T ua• r. ? d ??GN? N j ? U¢ o ? o 2 n aC `? o '• o y+ O fi ig 17 R N uI N m a N w7 .L fLI N V N N O n Y?Q ?ma t a? `5 m`a Q y V N 0 CiAt CERTIFICATE OF SERVICE I, JAR-AD W. HANDELMAN, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Preliminary Objections upon the following below-named individual(s) by depositing the same in the U.S. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania this 15th day of March, 2000. SERVED UPON: Leonard A. Mihalich 1065 Orrs Bridge Road Mechanicsburg, PA 17055 JARAD W. HANDELMAN, ESQUIRE JAMES, SMITH, DURKIN & CONNELLY, LLP L FC? 'y" QC 4t3 1J f l _ C 2 C? U ? a a m mZ J w a w w ro w £ 4 C _ 4 W S 04 vi •? 0) w ro i 0 014E c 4J > ?0 c HFZ z o 8 £ W w -.N b W W H H a u E a H A 0 0 , H 4JJ 4 W 11 04 z U & 1 O O H' x w 0 F 0 3 d 0 a H x? m a` A a a OU I £ W EtA W r "0" W m > "w ¢0z x 014HE U fC Ca pHw z `? a O W , V. E u La 0 l W 0 ?. 7 InH W u4 4 O IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW LEONARD A. MIHALICH ) Plaintiff ) vs. ) GREGG A. GEHRET ) Defendant ) No. 99-6105 - Civil Term (ARBITRATION) PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT 1. The averments in paragraph one (1) of Defendant's Preliminary Objections are denied for the reason the contract between Plaintiff and Defendant was for the installation of siding and the purchase by Plaintiff from Defendant of all materials, including but not limited to, the nails to be used in the installation of the siding. Furthermore, Defendant has failed to state whether the contract referred to in paragraph one (1) was written or oral, and if written, has failed to attached a copy to the Preliminary objections. 2. Admitted. 3. Admitted. 4. It is admitted Plaintiff filed an appeal of the District Justice's judgment, which was in favor of Plaintiff and against Defendant, because the judgment was insufficient to replace the defectively installed siding. There is no paragraph five (5). No response is required to the reference of the Unfair Trade Practice and Consumer Protection Law. 6. Plaintiff admits the averment in paragraph six (6) of Defendant's Preliminary Objections, however, Plaintiffs Amended Complaint does state a cause of action under the Unfair Trade Practice and Consumer Protection Law. This contention will be clearly established in the Plaintiffs subsequent responses. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Plaintiff admits paragraph eleven (11) of Defendant's Preliminary Objections, however, Plaintiffs Amended Complaint does state a cause of action under the Unfair Trade Practice and Consumer Protection Law. This will be clearly substantiated by Plaintiff s subsequent responses. Plaintiff contends the averments in his Amended Complaint and the reasonable inference therefrom will justify the Arbitration Panel's finding that Defendant's motive, his knowledge of the defective installation prior to and during installation, his confusing warranties, his failure to inform Plaintiff of the latent defects and the magnitude of the defective installation were fraudulent actions and created a likelihood of confusion or misunderstanding, thus establishing a claim under the Unfair Trade Practice and Consumer Protection Law. 12. Even though Section 201-2(4)(xvi) does not require written warranties (it requires written standards), Plaintiff admits paragraph twelve (12) of the Preliminary Objections. This admission is based upon Defendant's answer to written interrogatories wherein Defendant states that there were no written standards in the contractual relationship between Plaintiff and Defendant. 13. Paragraph thirteen (13) of the Preliminary Objections is denied for the following reasons: a) Paragraph twenty-seven (27) of the Amended Complaint avers that all of the circumstance set forth in the Amended Complaint created a likelihood of confusion or of misunderstanding, and constituted fraudulent conduct within the meaning and scope of the "Unfair Trade Practice and Consumer Protection Law"; b) The Amended Complaint sets forth the specific acts which constitute the fraudulent conduct. These fraudulent, deceptive unfair actions (and the reasonable inferences therefrom) are as follows: (1) Before and at the time of the siding installation, Defendant knew or should have known the nails were too short, too few and improperly placed to adequately secure the siding [paragraph twenty-seven (27) of the Amended Complaint]; (2) The defects were latent defects. They were such that they could not be discovered by expected or normal observation by the homeowner within the warranty period expressed by Defendant [paragraphs twenty-six (26) and twenty-seven (27) of Amended Complaint]; (3) The warranty period expressed by Defendant was unreasonably, thus was deceptive, confusing and misleading [paragraphs twenty-six (26) and twenty-seven (27) of Amended Complaint]; (4) The Defendant informed Plaintiff that in spite of the expressed warranty period, he would take care of any serious "major problems" that was discovered after the expressed warranty period, without charge [paragraph twenty (20) of the Amended Complaint]. This added to the confusion and misunderstanding; (5) Paragraph four (4) of the original Complaint alleges Plaintiff discovered the siding was not properly secured in march or April of 1997 when the wind tore off some of the siding. Paragraph twenty-seven (27) of the Amended Complaint alleges the Defendant knew of the defects prior to the installation and at the time of installation, thus, the Defendant's failure to inform Plaintiff of the latent defects is strong evidence that Defendant intended to deceive Plaintiff. The above mentioned allegations in Plaintiff's Complaint, Amended Complaint, and the reasonable inferences therefrom clearly establish that Defendant's contentions in paragraph thirteen (13) is truly beyond logic. 14. The legal conclusion set forth in paragraph fourteen (14) of the Preliminary Objections are denied. The reasons for this denial are set forth in Plaintiff's response in paragraph thirteen (13) and are incorporated herein. WHEREFORE, Plaintiff respectfully requests this Honorable Court to deny and dismiss Defendant's Preliminary Objections in the nature of a demurrer and the request to dismiss Plaintiff's Amended Complaint with prejudice. 15. Admitted. 16. Admitted. 17. Admitted 18. Admitted. 19. Paragraph nineteen (19) of Defendant's Preliminary Objections is denied. The contract between Plaintiff and Defendant was for the installation of siding and the purchase by Plaintiff from Defendant of all material, including but not limited to, the nails to be used in the installation of the siding. 20. Paragraph twenty (20) of the Preliminary Objections is denied. Plaintiff objects to the inclusion of the term "or product". Plaintiff agrees that supply of services, such as electricity, does not come within the meaning or scope of UCC, however, in the case at bar, Plaintiff purchased services and goods. Therefore, this case comes within the scope of the UCC. 21. The legal conclusions set forth in paragraph twenty-one (21) of Defendant's Preliminary Objections are denied for reasons set forth above. WHEREFORE, Plaintiff respectfully requests this Honorable Court deny and dismiss Defendant's Preliminary Objections in the nature ofa demurrer and Defendant's request to dismiss paragraph eleven (11) of Plaintiff s Amended Complaint with prejudice, insofar as said paragraph references and incorporates paragraph eight (8) of Plaintiffs original Complaint. Dated: Respectfully submitted, nard A. Mihali VERIFICATION The undersigned Plaintiff, LEONARD A. MIHALICH, hereby verifies that the facts set forth in the foregoing response to "Defendant's Preliminary Objections to Plaintiff's Amended Complaint" are true and correct to the best of his knowledge, information and belief, and further states that false statements are made subject to the penalties of 18. Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Dated: C onard A. Mid alich IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW (Arbitration) LEONARD A. MIHALICH ) Plaintiff vs. ) No. 99-6105 GREGG A. GEHRET ) Defendant ) AFFIDAVIT OF SERVICE OF PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, this /y day ofAMEL 2000, plaintiff, Leonard A. Mihalich, does hereby certify that on the /y day of MQ 2000, he sent Plaintiff's Response to Defendant's Preliminary Objections to Plaintiff's Amended Complaint to Jarad W. Handelman, Esquire, (P.O. Box 650, Hershey, PA, 17033-0650), attorney for defendant, by certified mail. I understand that my statements set forth above are made subject to 18 Pa. Cons. Stat. Section 4904, providing for criminal penalties for unsworn falsification to authorities. jd APlaintiff Lcj y L Li U U H oa w or o., _ H a H a ut z° my w, DANIEL M. MYSHIN, ESQ. I HEREBY CERTIFY THAT THE WITHIN 4800 LINGLESTOWN ROAD, SUITE 305 IS A TRUE AND CORRECT COPY OF THE ORIGINAL FILED IN THIS MATTER. HARRISBURG, PENNSYLVANIA 17112-9507 .5451 717.541.5457 -- IN THE COURT OF COMMON PLEAS OF CUMB RLAND COUNTY, PENNSYLVANIA LEONARD A. MIHALICIJ, Plaintitl' v. GREGG A. GEHRET, trading and doing business as EASY SIDERS HOME IMPROVEMENT CO., Defendant No. 99-6105 CIVIL ACTION - LAW PRAECIPE FOR EN'rRY OF APPEARANCE To the Prothonotary: Please enter the appearance of. Daniel M. Myshin, Esq. 4800 Linglestown Road, Suite 305 Harrisburg, Pennsylvania 17112-9507 as Attorney for Plaintiff, LEONARD A. MIHALICH, in the above captioned case. Dated: January 29, 2001 O?L)lb LA"4::w? Daniel M. Myshin, 'sq. Attorney for Plaintiff Pa Supreme Court ID #40366 4800 Linglestown Road, Suite 305 Harrisburg, PA 17112-9507 717-541-5451 } z c5 0 c LLI iL Fs TO YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED WITHIN TWENTY 1201 DAYS OF SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. BY ATTORNEY HERSHEY, PENNSYLVANIA 1703 3-065 0 PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY: Please list the within matter for the next Argument Court. WE HEREBY CERTIFY THAT THE WITHIN IS A TRUE AND CORRECT COPY OF THE ORIGINAL FILED IN THIS ACTION. BY A,TMNEY LEONARD A. MIHALICH, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 99-6105 CIVIL TERM GREGG A. GEHRET, CIVIL ACTION -LAW Defendant 1. State matter to be argued: Defendant's Preliminary Objections to Amended Complaint 2. Identify counsel who will argue case: (a) For Plaintiff: Daniel M. Myshin, Esquire 4800 Linglestown Road Suite 305 Harrisburg, PA 17112-9507 (b) For Defendant: Jarad W. Handelman, Esquire 134 Sipe Avenue Hummelstown, PA 17036 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: May 23, 2001 Dated: March 20, 2001 JARAD W. HANDELMAN, ESQUIRE Attorney for Defendant LAW OFFICE JAMES, SMITH, DURKIN & CONNELLY, LLP P. O. BOX 630 CERTIFICATE OF SERVICE I, JARAD W. HANDELMAN, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Praecipe For Listing Case for Argument upon the following below- named individual(s) by depositing the same in the U.S. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania this 20a` day of March 2001. SERVED UPON: Daniel M. Myshin, Esquire 4800 Linglestown Road Suite 305 Harrisburg, PA 17112-9507 JARAD W. HANDELMAN, ESQUIRE JAMES, SMITH, DURKIN & CONNELLY, LLP C ? ti 63 fT x. i Z N - 10 ? ? ??fTt LEONARD A. MIHALICH, PLAINTIFF V. GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT CO., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-6105 CIVIL TERM AND NOW, this?&day of July, 2001, the preliminary objections of defendant to plaintiffs amended complaint, ARE DISMISSED. By Daniel M. Myshin, Esquire For Plaintiff Jarad W. Handelman, Esquire For Defendant Gregg A. Gehret :saa ?o) LEONARD A. MIHALICH, PLAINTIFF V. GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT CO., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-6105 CIVIL TERM AND NOW, this &day of July, 2001, the preliminary objections of defendant to plaintiffs amended complaint, ARE DISMISSED. By Edgar B. Bayley,'J. Daniel M. Myshin, Esquire For Plaintiff Jarad W. Handelman, Esquire et For Defendant Gregg A saa g . Iy-O ice.. 1 LEONARD A. MIHALICH, Plaintiff V. GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT CO. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6105 CIVIL TERM CIVIL ACTION - LAW NOTICE TO PLEAD To: Plaintiff, Leonard A. Mihalich and his attorney, Daniel M. Myshin, Esquire YOU ARE HEREBY NOTIFIED to file a written response to the Answer With New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, JAMES, SMITH, DURKIN & CONNELLY, LLP Dated: September 6, 2001 By: .r' JARAD W. HANDELMAN, ESQUIRE Attorney I.D. #82629 P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 Attorney for Defendant, Gregg A. Gehret LEONARD A. MIHALICH, Plaintiff V. GREGG A. GEHRET, trading as EASY SIDERS HOME IMPROVEMENT CO. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6105 CIVIL TERM CIVIL ACTION - LAW DEFENDANT'S ANSWER WITH NEW MATTER AND NOW, comes the Defendant, Gregg A. Gehret, trading as Easy Siders Home Improvement Company, by and through his attorneys James, Smith, Durkin & Connelly, LLP, and answers Plaintiff's Complaint and avers New Matter in response thereto as follows: Admitted. 2. Admitted. Denied. Plaintiff's characterizations of the contract between he and Defendant are specifically denied. The contract between the parties speaks for itself and any attempt to alter the provisions of such contract are improper and denied. To the extent an answer is deemed necessary, the contract between Plaintiff and Defendant was for the provision of services, specifically the installation of siding on the Plaintiff's home. 4. Denied. The averments of paragraph four (4) relating to any alleged defect in the installation of the siding are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded. By way of further answer, Plaintiff's characterization of the alleged wind storm as "average" are specifically denied and strict proof thereof is demanded at trial. 5. Denied. It is specifically denied that Defendant made any admission to Plaintiff as alleged in paragraph five (5). By way of further answer, to the extent Plaintiff avers that any condition alleged to have existed in paragraph five (5) was due to Defendant's workmanship, the averments are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 6. Denied. It is specifically denied that Defendant made any admission as alleged in paragraph six (6). By way of further answer, there is no transcription of the District Justice proceeding and Plaintiff's attempt to recreate the testimony without such transcription is improper. In addition, Defendant's appeal from the District Justice decision nullifies any decision made at such proceeding and reference to same is contrary to applicable Pennsylvania Rule of Civil Procedure. 7. Denied. The averments of paragraph seven (7) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 8. Denied. The averments of paragraph eight (8) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. To the extent deemed necessary, it is specifically denied that Defendant sold Plaintiff a defective product or that any warrant applicable to such alleged product is applicable to the transaction between Plaintiff and Defendant. 9. Denied. The averments of paragraph nine (9) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 10. Denied. The averments of paragraph ten (10) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. Strict proof of any costs claimed by Plaintiff as damages is demanded. COUNT ONE 11. The answers set forth in paragraphs one (1) through ten (10) are incorporated herein by reference as if set forth in full. Responses to the incorporated paragraphs one (1) through ten (10) of the original Complaint are more fully set forth above and are incorporated herein by reference as if set forth in full. 12. Denied. The averments of paragraph twelve (12) are conclusions of law to the extent requiring interpretation of the contract between Plaintiff and Defendant to which no responsive pleading is required and strict proof thereof is demanded at trial. By way of further answer, the contract between Plaintiff and Defendant was for services and not for the sale of products. 13. Denied. The averments of paragraph thirteen (13) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. (a) Denied. The averments of paragraph thirteen (13)(a) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial; (b) Denied. The averments of paragraph thirteen (13)(b) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. It is specifically denied that there was nay manufacturer requirements for the installation of siding at the time of the contract between Plaintiff and Defendant; (c) The averments of paragraph thirteen (13)(c) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. It is specifically denied that there was nay manufacturer requirements for the installation of siding at the time of the contract between Plaintiff and Defendant; (d) The averments of paragraph thirteen (13)(d) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. It is specifically denied that there was nay manufacturer requirements for the installation of siding at the time of the contract between Plaintiff and Defendant; (e) The averments of paragraph thirteen (13)(e) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial; (f) The averments of paragraph thirteen (13)(f) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial; (g) The averments of paragraph thirteen (13)(g) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial; (h) The averments of paragraph thirteen (13)(h) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. It is specifically denied that any usage.or custom of the trade was violated; (i) The averments of paragraph thirteen (13)(i) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial; 0) The averments of paragraph thirteen (13)0) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. It is specifically denied there was any applicable code or building requirements for the work being performed pursuant to contract between Plaintiff and Defendant; (k) The averments of paragraph thirteen (13)(k) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 14. Denied. The averments of paragraph fourteen (14) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial 15. Denied. The averments of paragraph fifteen (15) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 16. Denied. The averments of paragraph sixteen (16) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 17. Denied. The averments of paragraph seventeen (17) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 18. Admitted in part; denied in part. It is admitted that Defendant was operating the business referenced in paragraph eighteen (18) at the time of the contract between Plaintiff and Defendant. As for the reasons for Plaintiff's amendment of his Complaint, Defendant is without sufficient information to admit or deny such averments and as such are denied. WHEREFORE, Defendant, Gregg A. Gehret, trading as Easy Siders Home Improvement Company, demands judgment in his favor and against Plaintiff, together with costs. COUNT TWO UNFAIR TRADE PRACTICE AND CONSUMER PROTECTION LAW 19. The answers set forth in paragraphs one (1) through eighteen (18) are incorporated herein by reference as if set forth in full. 20. Admitted in part; denied in part. It is admitted that Defendant has extensive knowledge and practice in the home improvement industry as alleged. The remaining averments of paragraph twenty (20) are denied to the extent inconsistent with the parties' contractual agreement. The contract speaks for itself and any attempts by Plaintiff to alter the contract are specifically denied and barred by the doctrine of parol evidence. To the extent Plaintiff's representations as to discussions with Defendant are contrary to the contract or applicable law of warranty of workmanship, same are specifically denied. 21. Admitted. It is admitted that Defendant made numerous attempts to assist Plaintiff outside the scope of any applicable warranty. By way of further answer, Defendant offered such assistance despite the fact that at the time of Defendant's efforts or after it was discovered that problems with the siding about which Plaintiff was complaining resulted from his own conduct, and not from anything Defendant or his workman had done. 22. Denied. The averments of paragraph twenty-two (22), specifically the representations and statements attributed to Defendant, are specifically denied. It is specifically denied that Defendant made any agreement to repair ongoing problems beyond any applicable warranty period, particularly for problems that were caused by Plaintiff's own conduct. By way of further answer, Plaintiff's own construction on the home after the siding was installed caused, contributed, or resulted in the problems which Plaintiff now attributes to Defendant's workmanship. 23. Denied. To the extent the averments of paragraph twenty-three (23) are intended to suggest that Defendant had any obligation, warranty or otherwise, to repair the alleged siding problems, same are denied as conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. It is admitted that any applicable warranty coverage had expired, particularly due to the fact that Plaintiff's own construction on the home after the siding was installed caused, contributed, or resulted in the problems which Plaintiff now attributes to Defendant's workmanship. 24. Denied. The averments of paragraph twenty-four (24) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 25. Denied. The averments of paragraph twenty-five (25) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. By way of further answer, no defect was observed until Plaintiff's own conduct caused any defect with the siding of which he now complains. 26. Denied. The averments of paragraph twenty-six (26) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 27. Denied. The averments of paragraph twenty-seven (27) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. Such denial is noted to be responsive to the remarks at the end of paragraph twenty-seven (27) in Plaintiff's Amended Complaint as well. Such averments are also conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. (a) The averments of paragraph twenty-seven (27)(a) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial; (b) The averments of paragraph twenty-seven (27)(b) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial; (c) The averments of paragraph twenty-seven (27)(c) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial; (d) The averments of paragraph twenty-seven (27)(d) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 28. Denied. The averments of paragraph twenty-eight (28) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. 29. Denied. The averments of paragraph twenty-eight (29) are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at trial. VVHEREFORE, Defendant, Gregg A. Gehret, trading as Easy Siders Home Improvement Company, demands judgment in his favor and against Plaintiff, together with costs. NEW MATTER 30. The answers set forth in paragraphs one (1) through twenty-nine (29) are incorporated herein by reference as if set forth in full. 31. Plaintiff's Complaint fails to state a claim upon which relief can be granted. 32. Plaintiff s claims are barred by the doctrine of parol evidence. 33. Plaintiff's claims are barred as the alleged defects in Plaintiff's workmanship occurred beyond the term of any applicable warranty period. 34. Plaintiff's claims are barred as the alleged defects in Plaintiff's workmanship are beyond the scope of any applicable warranty. 35. Plaintiff's claims are barred as the alleged defects with the siding installed on Plaintiff's home by Defendant were caused in whole or in part by Plaintiff s own conduct, specifically the construction of home improvements such as patios and/or decks on the rear and/or side of Plaintiff s home that caused the problems of which Plaintiff now complains. 36. The allegations of Plaintiffs Complaint constitute nonfeasance, if anything, on the part of Defendant which is insufficient to state a claim under the UTPCPL. 37. There are no written warranties between Plaintiff and Defendant and therefore §201-2(4)(xvi) of the UTPCPL does not apply. 38. Even as alleged by Plaintiff, there was no fraudulent or deceptive conduct on behalf of Defendant that could sustain a cause of action under the UTPCPL, any such alleged fraudulent or deceptive conduct being specifically denied. 39. Plaintiffs Amended Complaint fails to state a cause of action under the UTPCPL. 40. Before the protections of the implied warranty of fitness for a particular purpose attach, there must be a sale of goods. 41. The contract between Plaintiff and Defendant was for services, specifically Defendant's installation of siding on the Plaintiff's home. 42. Supplying of services is not a "sale" within the meaning of the UCC for purposes of determining whether a seller or product falls within the purview of the UCC and whether one may be liable for breach of warranty. 43. The contract between Plaintiff and Defendant is not governed by the UCC, and there is no implied warranty of fitness for a particular purpose applicable to the transaction. Accordingly, any alleged breach of such warranty cannot serve as the basis for Defendant's alleged breach of the contract between the parties. 44. There were no building codes applicable to the work being performed by Defendant on Plaintiff's home at the time of the rendering of the services. 45. There were no manufacturers' specifications for the installation of the siding on Plaintiff's home at the time the work was performed by Defendant. 46. Even had there been manufacturers' specifications, such specifications are advisory only and capable of modification at Defendant's discretion to fit the needs of a particular job. 47. The contract between Plaintiff and Defendant expressly permits modifications to any specification, the existence of any specifications at the time of the work being expressly denied, in the sole discretion of Defendant. 48. Modifications were necessary at the request of the Plaintiff and complied with by Defendant upon such request by Plaintiff. 49. All Defendant's work was done with the express approval of Plaintiff and under the constant supervision and inspection of Plaintiff while the work was being performed. WHEREFORE, Defendant, Gregg A. Gehret, trading as Easy Siders Home Improvement Company, demands judgment in his favor and against Plaintiff, together with costs. Respectfully submitted JAMES, SMITH, DURKIN & CONNELLY, LLP Dated: September 6, 2001 By. 7? JARAD W. HANDELMAN, ESQUIRE Attorney I.D. #82629 P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 Attorney for Defendant, Gregg A. Gehret VERIFICATION The undersigned, Defendant, Gregg A. Gehret, hereby verifies that the facts set forth in the foregoing Answer With New Matter are true and correct to the best of his knowledge, information and belief and further states that false statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. c7KNAJ //UEHRET, trading as Easy Siders Home In5Provement Company CERTIFICATE OF SERVICE I, JARAD W. HANDELMAN, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Answer With New Matter upon the following below-named individual(s) by depositing the same in the U.S. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania this 7a' day of September 2001. SERVED UPON: Daniel M. Myshin, Esquire 4800 Linglestown Road Suite 305 Harrisburg, PA 17112-9507 JARAD W. HANDELMAN, ESQUIRE JAMES, SMITH, DURKIN & CONNELLY, LLP Ln K' ? z lU O.- qj c?a. IA_ .? ^J L.J f.1 (1 } U A C_: T = - i_ L) fC O O C'? U) a ?a a a a > j U L H a Oaa0) N U N U.. Uj Lam! L": Ca H a F- Z J ! t1 U w w 4J c .ti ro a ro 3 p£a J U g d 4J H C ro 4 4 p 9 - & EQ a A a CW7 ? S q > 4 O z W Z 8 U9, R ?C a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEONARD A. MIHALICH, ) Petitioner ) V. ) GREGG A. GEHRET, trading as ) EASY SIDERS HOME IMPROVEMENT CO., ) Respondent ) No. 99-6105 CIVIL CIVIL ACTION PLAINTIFF'S REPLY TO NEW MATTER AND NOW, comes Plaintiff, LEONARD A. MIHALICH, by and through counsel, Daniel M. Myshin, Esq. making Plaintiff's Reply to New Matter of which the following is a statement: 30. No responsive pleading is required. 31. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 32. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 33. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. To the extent that defendant's allegation is factual, it is specifically denied that the defects in defendant's workmanship occurred beyond the term of any applicable warranty period. To the contrary, the defects in defendant's workmanship occurred at installation and within the applicable warranty period. 34. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. To the extent that defendant's allegation is factual, it is specifically denied that the defects in defendant's workmanship are beyond 01/Mihalich/Reply to New Matter 1 September 24, 2001 the scope of any applicable warranty. To the contrary, the defects in defendant's workmanship are within the scope of an implied warranty of fitness for intended purpose. 35. Denied. It is specifically denied that the defects with the installation were caused in whole or in part by plaintiffs own conduct, specifically the construction of home improvements such as patios and/or decks on the rear and/or side of plaintiffs home that caused the problems of which plaintiff now complains. To the contrary, defendant's conduct, as more fully set forth in the Complaint and Amended Complaint, is the direct and proximate cause of plaintiffs losses. Plaintiff's subsequent, unrelated conduct did not cause the problems of which plaintiff now complains. 36. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. To the extent that defendant's allegation attempts to re-raise nonfeasance under the UTPCPL previously addressed and waived by defendant's failure to brief, preliminary objections were dismissed by July 26, 2001 Order of Court and res judicata applies. 37. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. To the extent that defendant's allegation attempts to re-raise written warranties previously addressed and waived by defendant's failure to brief, preliminary objections were dismissed by July 26, 2001 Order of Court and res judicata applies. 38. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. To the extent that defendant's allegation is factual, it is specifically denied that there was no fraudulent or deceptive conduct on behalf of defendant. To the contrary, plaintiffs Amended Complaint alleges a pattern of 01/Mihalich/Reply to New Matter 2 September 24, 2001 multiple errors in support of plaintiffs claim that defendant intended to defraud plaintiff by providing substandard work. To the extent that defendant's allegation attempts to re- raise fraudulent or deceptive conduct sufficient to sustain a cause of action under the UTPCPL previously addressed, preliminary objections were dismissed by July 26, 2001 Order of Court and res judicata applies. 39. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. To the extent that defendant's allegation attempts to re-raise failure to sustain a cause of action under the UTPCPL previously addressed, preliminary objections were dismissed by July 26, 2001 Order of Court and res judicata applies. 40. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 41. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. To the extent that defendant's allegation is factual, it is specifically denied that the contract between plaintiff and defendant was for services, specifically defendant's installation of siding on plaintiffs home. To the contrary, the contract between plaintiff and defendant was primarily a sale of goods to which defendant's services were incidental. Plaintiff needed new siding on his home and purchased all of the siding, nails and insulation directly from defendant, who then installed the siding. To the extent that defendant's allegation attempts to re-raise whether the UCC is applicable to this contract previously addressed, preliminary objections were dismissed by July 26, 2001 Order of Court and res judicata applies. 0l/Mihalich/Reply to New Matter 3 September 24, 2001 42. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 43. Denied. Defendant's allegation is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. To the extent that defendant's allegation attempts to re-raise whether the UCC is applicable to this contract previously addressed, preliminary objections were dismissed by July 26, 2001 Order of Court and res judicata applies. 44. Denied. It is specifically denied that there were no building codes applicable to the work being performed by defendant on plaintiffs home at the time of the rendering of the services. To the contrary, Ordinance Number 92-02 and specifically Part 2, §201 et seq. of the Township of Hampden, Cumberland County, Pennsylvania, enacted on January 6, 1992, and Chapter 5 of the CABO One and Two Family Dwelling Code, 1989 Edition, are the building codes applicable to the work at the time of performance under this contract. Further to the contrary, by defendant's failure to timely respond to May 2, 2001 Requests for Admissions, No. 1, 2, 3 & 4, by operation of Pa.R.C.P. 4014(b) and (d), this matter is conclusively established unless the court on motion permits withdrawal or amendment of the admission. 45. Denied. It is specifically denied that there were no manufacturer's specifications for the installation of the siding on plaintiffs home at the time work was performed by defendant. To the contrary, page 12 of the Vinyl Siding Institute "VSI" Rigid Vinyl Siding Application Instructions, Copyright 1994, and pages 7, 16 and 19 of the VSI Rigid Vinyl Siding Application Instructions, Copyright 2000, are the minimum installation standards recommended by the manufacturer for this installation. Further to the contrary, 0l/Mihalich/Reply to New Matter 4 September 24, 2001 by defendant's failure to timely respond to May 2, 2001 Requests for Admissions, No. 5, 6 & 7, by operation of Pa.R.C.P. 4014(b) and (d), this matter is conclusively established unless the court on motion permits withdrawal or amendment of the admission. 46. Denied. It is specifically denied that the manufacturer's specifications are advisory only and capable of modification at defendant's discretion to fit the needs of a particular job. To the contrary, the manufacturer's specifications are minimum installation standards recommended by the manufacturer for this installation. Further to the contrary, by defendant's failure to timely respond to May 2, 2001 Requests for Admissions, No. 5, 6 & 7, by operation of Pa.R.C.P. 4014(b) and (d), this matter is conclusively established unless the court on motion permits withdrawal or amendment of the admission. 47. Denied. It is specifically denied that the contract between plaintiff and defendant expressly permits modifications to any specification in the sole discretion of defendant. To the contrary, plaintiff did not authorize modifications in violation of township building codes or minimum installation standards recommended by the manufacturer. Further to the contrary, the parties cannot contract to violate minimum building codes and minimum installation standards recommended by the manufacturer which exist for the protection of personal health and safety and which are designed to prevent and minimize the very damage and loss that occurred. Further to the contrary, plaintiff did not contract, permit or authorize defendant to perform work in a negligent and unworkmanlike manner. 48. Denied. It is specifically denied that modifications were necessary at the request of the plaintiff and complied with by defendant upon such request by plaintiff. To the contrary, plaintiff relied upon defendant's purported expertise and experience in selecting and Ol/Mihalich/Reply to New Matter 5 September 24, 2001 installing siding on plaintiff's home. Further to the contrary, defendant selected the nails, furring strips, insulation, siding and other parts and was solely responsible for the manner in which the siding was attached to plaintiff's home, including by way of illustration but not limitation, the size, placement and location of nails and furring strips. Further to the contrary, plaintiff did not request modifications in violation of township building codes or minimum installation standards. 49. Denied. It is specifically denied that all defendant's work was done with the express approval of plaintiff and under the constant supervision and inspection of plaintiff while the work was being performed. To the contrary, plaintiff relied upon defendant's purported expertise and experience in performing the work in compliance with township building codes and minimum installation instructions. Further to the contrary, defendant was solely responsible for the manner in which the work was performed, including by way of illustration and not limitation, the size, placement and location of nails and furring strips. Plaintiff did not approve work done by defendant in violation of township building codes and manufacturer's minimum installation instructions. Plaintiff relied upon defendant to supervise and inspect the work as it was being performed. WHEREFORE, Plaintiff, LEONARD A. MIHALICH, demands judgment in his favor and against defendant, together with costs. Res ectfully submitted, ??, - C7?IM/ 1? Daniel M. Myshin, E q. Attorney for Plaintif Pa.S.Ct. No. 40366 4800 Linglestown Road, Suite 305 Harrisburg, PA 17112-9507 Telephone: 717.541.5451 Ol/Mihalich/Reply to New Matter 6 September 24, 2001 VERIFICATION I verify that the statements contained in the above captioned pleading 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 §4904, relating to unsworn falsification to authorities. a 7 d 00/ lae?" aintiff CERTIFICATE OF SF]iVICE I, Daniel M. Myshin, Esq., certify that on the ILFRay of September, 2001 I served a true and correct copy of the above document by United States Mail, first class postage prepaid and addressed to the following: Jarad W. Handelman, Esq. JAMES, SMITH, DURKIN & CONNELLY, LLP Counsel for Defendant PO Box 650 Hershey, PA 17033 Respectfully submitted, Daniel M. Myshin, sq. Pa. Supreme Court D 40366 4800 Linglestown Road, Suite 305 Harrisburg, PA 17112-9507 Telephone: 717.541.5451 01/Mihalich/Reply to New Matter 7 September 24, 2001 CC r? r: Q- J s i '0 r n 0 N m " 0 Q m a N F r ?` W •- n z _ T a ¢ n ? 3 N n 0 z w w N J w a a W_ OZ U' a d O M O °" N n a ? T IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEONARD A. MIHALICH, Plaintiff V. GREGG A. GEHRET, trading and doing business as EASY SIDERS HOME IMPROVEMENT CO., Defendant No. 99-6105 CIVIL ACTION - LAW PETITION FOR APPOINTMENT OF ARBITRATORS AND NOW, comes Plaintiff, LEONARD A. MIHALICH, by and through counsel, Daniel M. Myshin, Esq., who respectfully represents the following: 1. The above-captioned action is at issue. 2. Plaintiff's claim is $10,395.00 consisting of 3 times actual damages of $3,465.00 plus punitive damages and attorney's fees. Defendant's counterclaim is $0.00. 3. The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators a) Daniel M. Myshin, Esq., Attorney for Plaintiff, 4800 Linglestown Road, Suite 305, Harrisburg, PA 17112; b) Jarod W. Handelman, Esq., Attorney for Defendant, JAMES, SMITH, DURKIN & CONNELLY, LLP, PO Box 650, Hershey, PA 17033. WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. R tfully 'ALA . VeM. Myshin, Es . Attorney for Plaintiff Pa.S.C. No. 40366 4800 Linglestown Road, Suite 305 Harrisburg, PA 17112-9507 0 1 (Mihalich/Petition for Arbitrators 2 October 18, 2001 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEONARD A. MIHALICH, ) Plaintiff ) V. ) GREGG A. GEHRET, trading and ) doing business as EASY SIDERS ) HOME IMPROVEMENT CO., ) Defendant ) No. 99-6105 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Daniel M. Myshin, Esq., certify that on the 19'h day of October, 20011 served a true and correct copy of the above document by United States Mail, first class postage prepaid and addressed to the following: Jarad W. Handelman, Esq. JAMES, SMITH, DURKIN & CONNELLY, LLP Counsel for Defendant PO Box 650 Hershey, PA 17033 Respectfully submitted, 4800 Linglestown Road, Suite 305 Harrisburg, PA 17112-9507 Telephone: 717.541.5451 Daniel M. Myshin, q. Pa. Supreme Court I 40366 01 Mihalich/Petition for Arbitrators 3 October 18, 2001 N CJ ? `Y C-j o - p ,b ? oC v r C%i z iu _` . ?.. U LJd t_ CD U d N W _Z 2 N } J W_ Z Q Q z J } zz z W IL 7 m N tt Q I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEONARD A. MIHALICH, Plaintiff ) V. ) No. 99-6105 GREGG A. GEHRET, trading and ) doing business as EASY SIDERS ) HOME IMPROVEMENT CO., ) Defendant ) CIVIL ACTION - LAW ?/ ORDER T LIP AND NOW, this A)- ?Iay of 2001 in consideration of the foregoing petition, q., sq., and If sq. are appointed as arbitrators in the above caption action as prayed for. BY THE COURT, AMA 110N, ( ?// // V yr ) P, J. 01/Mihalich/Petition for Arbitrators 1 October 18, 2001 t„Qohard. 4 1q, W,c } ) Gre?9 4. €a le, S ide r5 /fi10u1e P..,e..l OATH In The Court of Common Pleas ? Cumberland County, Pennsylvania No. 7 <-6/OS 19_ We do solemnly swear (or affirm) that we will support, the Constitution of the United States and the Consei?tution wealth and that we will discharge the duties of AWARD JsceK CoK obey and defend t is common_ fidelity. We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: applicable.) • Arbitrai Date of Hearing: Date of Award: _ /-z3_LZ NOTICE OF ENTRY OF ?.WARD Now, che42"-?ay of Ja-,- t -/ award was entered upon the docket and/notice thereof tgi?'by mail parties or their attornevs. Arbitrators' compensation to be paid Upon appeal: the above to the (Note: If damages for delay are awarded, they shall be separately stated.) (1. ?0 Suss Ca' „?'?? - ??y??? /?-1-?__ C N C FT" Z -17 w "'? V CCU 's7 ^i r, T C i ? [ ? ? b ?,420hr,rJ- ,4_ A4, A4/tcL } li?4 4Ne..,e--A LATH In The Court of Common Pleas of Cumberland County, Pennsylvania No. 9? 0-5- i9 Tie do solemnly swear (or affirm) that we will support, obey and defend is Common- the Constitution of the United States and the Cons orlon ootfidelity. wealth and that we will discharge the duties of ce ? .? suc vt , ?t -Fa ? r AWARD We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) _;?«1 14? &64 C!? - ? _Lr-1c C, 4?e T47 Arbitrai applicable.) Date of Hearing : Date of Award: (-, Z Z;--6Z. ( NOTICEE OF ENTRY OF AWARD :low, the-z3?day of 1-04.QQ? at&: YY, P..i., the above award was entered upon the docket and/ notice thereof given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: $ GX22(). rV co p C. 11) . SLC.S ?? 115+ ? 2.- l?ea_q?-? i'S Bq