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07-5707
"~' ~Uio4MONWEALTH OF PENNSYLVANIA COUNTY OF CUl~BRLAND Mag. Dist. No.: 09-3-04 - MDJ Name: Hon. THOMAS A. PLACBY address: 104 , 5: SPORTING "HILL RD `; M8CEAI~ICSBURG, PA -'. Telephone. (717)- 76'1-8.230. ...17050 JOHN H. MYERS 8e SON, INC. P.O. BO% 1924 YOR%, PA 17405 ... a, _ . ~'~= 5?~'`~ ~~v~~- Term NOTICE OF JUDGMENT/TRA.N:3CRIPT CIVIL CASE .PLAINTIFF: NAME and ADDFJESS rJOHN H . MY~xs a~ sON, INC . ~ P.O. BO% 1924 YOR& PA 17405 L ..J VS: .DEFENDANT: JVAME and ADDFJESSr . rR.B. BLAC&, =xC 'T/D/8/A, 9BT AL' ~ ~~ 2250: BD~8LIRSEB SOLLOfii RIB MHCHANiCSBII~tG, PA 17055 i L J Docket No.: CV-0000030-07 Date Filed: 1/17/07 THIS IS TO NOTIFY YOU THAT: ..Judgment: FOR FLAINTIF,F~.. _ (Date of Judgment) Judgment was entered for: (Name) JOS>si H. MYBRS ~ SON, , INC. ® Judgment was entered against: (Name) R•H. BLAC%, INC T/D/B/A in the amount of $ 6, 303.7 DE `endants are jointly and severally liable. D~ Wages will be assessed on Date & Time Th.s case dismissed without prejudice. AI fount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 $. Pc tion of Judgment for physical damages arising out of re idential lease $ Amount of Judgment $. 5, 839.37 Judgment Costs $. 127.50 Interest on Judgment $ -~~~ Attorney Fees $- . 00 Total $ 6, 303.70 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY P~ iTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPE~ L WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST IN( _UDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEP AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEM' NT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FF ~M THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE UNLE~ i THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUI 5T FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLE' , OR OTHERWISE COMPLIES WITH THE JUDGMENT. RULE 323 periodic payments of $525.31 for twelve (12) months. The parties may agree to a different amount; however, failure to pay either the court ordered periodic payment or party agreed periodic payment amount will result in Plaintiff's ability to seek acceleration of judgment by payment in full via constable/sheriff sale. Date ! certi i that this is a true ~~~~~ Date _ My cc emission expires first Monday of January, ~ 2010 Magisterial District Judge containing the judgment. Magisterial District Judge .8,/23:/Q7 SEAL AOPC < 5-06 DATB PRINTAD: 8/23/07 ,10:28:00 AM 'Pf ~. v ,r.w_ T ,~ ~ . ., .~~-•,~di~VFONWEAL'TH~CJF PENNSYLVANIA NOTICE ~ C~VD CASE a~RANSCRIPT (:(~I INTY [7F• Cv>s~'BBRLAaD PLAINTIFF: NAME and ADDRESS ~JOHa H . >ia~c$RS ~ soa, lac . ~ P.O. Boa 1924 YORE, PA 17405 L J VS. DEFENDANT: NAME and ADORESs rR-.B. BLACS, I1~C T/n/B/A, • 8T AL. ~ Z Z 5 0' 8~1~L881lS HOLLOW RD >!!<BCHAaICSBDBG, PA 17055 r~ L J JOHa H . 1[YSRS ~ SO~i, I1~C P.O. BOE 1924 Docket No.: Cv-0000030-07 YORE, PA 17405 Date Filed: 1/17/07 THIS IS TO NOTIFY YOU THAT: BLACK, ROBERT H D$F 002 ,_.o.,.~ __ _ _ __. _ DI_,58$D _~Pf Q P.REJIIDICB _ __' _ Date~af-JlJd meet ._. __ _ 8/23/.07 _ t ._____._____._ _ .__-. Judgment was entered for: (Name) Judgment was entered against: (Name) in the amount cif $ Defendants arE~ jointly and severally liable. Damages will t ~e assessed on Date & Time This case dism ssed without prejudice. Amount of Jud~tment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential leasF~ $ IlAmount of Judgment $ . 00 Judgment Costs $ . 00 Interest on Judgment $ Attorney Fees $ . 00 Total $ . . 0 0 Post Judgment Credits $ Post Judgment.. Costs $ Certified Judgment Total $ ANY PARTY HAS THE r;IGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE "'"- «~OF APPEAL WITH THE P>• OTHONOTARY/CLERK OF tHE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY':)F THIS NOTICE OF JUDGMENTlfRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWI' E PROVIDED IN THE RULES OFCIVIL-PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE _..:; dUDGEMEN2_HOLDER E -EGTS Tp._ENT.ER TH~dUDGMENT Ito TH~~.~I,IRT OF.COMMON PLEA, /~1.L FURTHER_PROCESS MUST ._ ,_ _ COME FROM THE COUR', OF COMMON PLEAS ANb N0 FURTHER PROCESS MAY BE ISS'IfED BY THE MAGISTERIAL DISTRICT JUDGE . UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY ~DF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, `SETTLES, OR OTHERW97•:E COMPLIES WITH THE JUDGMENT. '"' Dai e certify that thi~sris ~ true FJ'AT$ PRIaTED: 8/Z3/07 10:28:00 A>s[ ,` J .. Yi. isterial District Judge . . of the p ceedings containing the judgment ; ' Magisterial District Judge - ~ My commission expires first Monday of January, 2010 AOPC 315-06 SEAL ~ '' yk~ n . ,~ .~ OFFICE OF THE PROTHONOTARY OF CUMBERLAND COUNTY CURTIS R LONG TELEPHONE PROTHONOTARY (717) 240-6195 CUMBERLAND COUNTY COURTHOUSE ONE COURTHOUSE SQUARE CARLISLE, PENNSYLVANIA 17013 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF: John H. Myers & Son, Inc. versus DEFENDANT: R.H. Black Inc. JUDGMENT NO. CERTIFICATE OF RESIDENCE PA R. C. P. 236 I, hereby certify that the precise residence of Plaintiff is: 2200 Monroe Street, P. O. Box 1924, York, PA 17405 and certify that the last known address of the within Defendants is: 2250 Bumblebee Hollow Rd., Mechanicsburg, PA~(~65 GEO Fyn.. ~ III, ESQUIRE No. 38 Attorney for Plaintiff EVELER & EVELER, LLC 2997 Cape Horn Road Suite A-6 Red Lion, PA 17356 (717) 246-8000 C7 r`' c .# .. -.~ a I i ^.. /~ .O ~, ~ ~ ~ -~ ~ ~ .~._ - ~ '~ a =~ .~ _~ E L ~ w i ~ ~ ~ l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN H. MYERS & SON, INC. NO. PLAINTIFF VS. R H. BLACK, INC. DEFENDANT :NOTICE OF FILING NDGMENT (X) Notice is hereby given that a judgment in the above-captioned matter has been entered against you in the amount of $6,303.70 on _~g,nt. a.8 , 2007. (X) A copy of all documents filed with the Prothonotary in support, of the within judgment is/are enclosed. n,. P othonotary Civil Div. by: If you have any questions regazding this Notice, please contact the filing party: NAME: GEORGE L. EVELER, III, ESQUIRE NO. 38508 ADDRESS: 2997 CAPE HORN ROAD SUITE A-6 RED LION, PA 17356 TELEPHONE NO.: (717) 246-8000 Notice sent to: NAME: R. H. BLACK, INC. ADDRESS: 2250 BUMBLEBEE HOLLOW RD. MECHANICSBURG, PA 17055 Anthony T. Lucido, Esquire Corey J. Adamson, Esquire Thomas, Thomas & Hafer, LLP P. O. Box 999 Harrisburg, PA 17108-0999 (717) 441-7057 Attorneys for Defendant HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-5705 Civil LAMARCO CONTRACTING, INC. Defendant JURY TRIAL DEMANDED NOTICE TO PLEAD TO PLAINTIFF: You are hereby instructed to file a responsive pleading to the following Preliminary Objections within twenty (20) days, or judgment may be entered against you. `DEFENDANT LAMARCO CONTRACTING,. INC'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW comes Defendant LaMarco Contracting, Inc., by and through its attorneys, Thomas, Thomas and Hafer, LLP, and files the following Preliminary Objections to Plaintiff's Amended Complaint, and aver as follows: 1. Plaintiff filed its Complaint on or about September 28, 2007. Defendant was served with a copy of the Complaint on or about October 18, 2007. A copy of Plaintiff's Complaint in this action is attached hereto as Exhibit A. 2. The Complaint contains three counts against Defendant. Count I is entitled "Breach of Contract: Assignment of Claim;" Count II is entitled "Intended Third Party Beneficiary;" and Count III is entitled "Breach of Contract: Use Claim Pursuant to Pa.R.C.P. 2002." 3. Plaintiffs Complaint alleges it incurred $34,588.00 in damages because it had to replace cabinetry it had installed during the construction of a home, due to Defendant's improper installation of an HVAC system in the subject home. Ex. A ¶¶ 11- 18. 4. Plaintiffs Complaint avers that the humidity levels at the property were maintained at abnormal levels, which caused the alleged damage to the cabinetry constructed by Heirloom. Ex. A ¶¶11; 14-17. 5. Plaintiff also seeks recovery of attorney fees. Ex. A, ad damnum clauses. 6. Plaintiff has already filed a prior action based upon the above allegations, which action is still pending. See Heirloom Cabinetry of Pennsylvania, Inc. v. LaMarco Contracting, Inc., Cumberland County Court of Common Pleas Docket No. 06-4482 Civil (hereinafter "First Action" or "Original Action")'. 7. Notably, in the First Action, Defendant filed Preliminary Objections, which were granted in part and denied in part. See Opinion and Order, dated June 21, 2007 (Oler, J.) attached hereto as Exhibit B. 8. Following said Opinion, Plaintiff filed a Second Amended Complaint in the Original Action, on or about July 11, 2007, a copy of which is attached hereto as Exhibit C. 9. Defendant filed its Answer with New Matter to the Second Amended Complaint in the Original Action on or about July 31, 2007. FIRST PRELIMINARY OBJECTION: PENDENCY OF A PRIOR ACTION PURSUANT TO PA.R.C.P. 1028(a)(6) ' Accordingly, the instant matter shall be referred to throughout as the "Second Action" or "this action." 2 10. Defendant incorporates paragraphs 1 through 9 as if the same were set forth fully at length herein. 11. Pa.R.C.P. 1028(a)(6) allows a party to file preliminary objections to a pleading on the grounds that a prior action is pending. 12. It is clear from even a cursory comparison of Plaintiffs Second Amended Complaint in the Original Action arises from the exact same transaction(s)/occurrence(s) as the Complaint in the Second Action. Compare Ex. A ¶¶ 1-7; Ex. C ¶¶ 1-7. Plaintiff even seeks the exact same amount in damages in both actions. Compare Ex. A and Ex. C ad damnum clauses. 13. Pa.R.C.P. 1020(d) mandates that where a transaction or occurrence gives rise to more than one cause of action, a party must assert all such causes of action at once, or they are waived. 14. As Plaintiff did not assert the causes of action asserted in the Second Action in the Original Action, the same are waived. 15. Accordingly, Plaintiff's Complaint in the instant Action should be stricken, with prejudice. SECOND PRELIMINARY OBJECTION: FAILURE TO CONFORM TO LAW OR RULE OF COURT PURSUANT TO PA.R.C.P. 1028(a)(2) 16. Defendant incorporates paragraphs 1 through 15 as if the same were set forth fully at length herein. 17. Pa.R.C.P. 1028(a)(2) allows a party to ale a preliminary objection where a pleading fails to conform to law or rule of court. 3 18. Pa.R.C.P. 1020(d) mandates that where a transaction or occurrence gives rise to more than one cause of action, a parry must assert all such causes of action at once, or they are waived. 19. As the claims of Plaintiff's Complaint in the Second Action arise from the exact same transaction as the claims of the Original Action, they could have, and more importantly should have (as Rule 1020(d) requires) been asserted in the Original Action. 20. Since the claims of this Second Action were not so asserted, they are waived. 21. Accordingly, Plaintiff s Complaint in this Second Action should be stricken, with prejudice. THIRD PRELIMINARY OBJECTION: DEMURRER PURSUANT TO PA.R.C.P. 1028(a)(4)2 22. Defendant incorporates paragraphs 1 through 21 by reference as if the same were set forth fully at length herein. 23. Pennsylvania Rules of Civil Procedure 1028(a)(4) allows a party to file a preliminary objection where a pleading is legally insufficient, in other words, a demurrer. 24. Plaintiff seeks recovery of attorney fees. Ex. A, ad damnum clauses. 25. Plaintiff is not entitled to the recovery of its attorney's fees, because as a general rule, attorney's fees will not be rewarded unless there is an applicable statute, contractual agreement or other established exception that allows such recovery. Commonwealth, Dept. of Transportation v. Smith, 602 A.2d 499, 501 (Pa. Commw. 1992). z Defendant asserts this Preliminary Objection, and all subsequent Preliminary Objections herein pursuant to Pa.R..C.P. 1028(b)'s mandate that all preliminary objections be raised at one time or they are waived. By doing so, Defendant does not 4 26. Moreover, as this Honorable Court recognized in the Original Action, arising out of the same exact occurrence, Plaintiff's claim for attorneys' fees cannot be sustained. Ex. B, p. 8. 27. Accordingly, Plaintiffs claim for attorney's fees must be stricken, with prejudice. FOURTH PRELIMINARY OBJECTION: DEMURRER PURSUANT TO PA.R.C.P. 1028(a)(4) 28. Defendant incorporates paragraphs 1 through 27 by reference as if the same were set forth fully at length herein. 29. Plaintiff avers that the contract between itself and Custer Design Group contained a provision that provided, in part, that Plaintiff would not look to Custer Design Group to recover for any damages caused by another subcontractor to Plaintiff's work, but would look to that subcontractor, and should Plaintiff cause damage to another subcontractor's work, Plaintiff would be responsible for those damages. Ex. A ¶ 8. 30. Plaintiff avers that Defendant's contract between Defendant and Custer Homes, Inc. contains a similar provision. Ex. A ¶ 8. 31. Plaintiff argues in Count I of the Complaint in the Second Action that these subdivisions "amounted to an assignment of Ouster's claim for breach of contract to Heirloom." Ex. A ¶ 25. 32. However, Custer Design Group, with whom Plaintiff had a contract, would have no claim for breach of contract against Defendant, because there is no contract between Custer Design Group and Defendant. Defendant's contract is with Custer Homes, Inc., a separate entity. Ex. A ¶¶ 3-4, 6-7, and exhibits A and B thereto. 5 33. A breach of contract claim cannot be sustained in the absence of privity between a plaintiff and defendant. Farabaugh v. Pennsylvania Turnpike Comm'n, 911 A.2d 1264 (Pa. 2006). 34. Moreover, as this Honorable Court has already recognized in the Original Action, there is no privity between Custer Design Group and Defendant, and thus no privity between Plaintiff and Defendant to support a breach of contract claim. Ex. B p. 5-6. 35. As Custer Design Group has no breach of contract claim against Defendant, it cannot possibly assign a breach of contract claim to Plaintiff. 36. Additionally, the provisions of the respective contracts do not effectuate an assignment because the assignor's right of performance was not extinguished and no assignee acquired a right to any performance. Wilcox v. Regester, 207 A.2d 817, 820 (Pa. 1965). 37. Accordingly, Count I of Plaintiffs Complaint should be stricken, with prejudice. FIFTH PRELIMINARY OBJECTION: DEMURRER PURSUANT TO PA.R.C.P. 1028(a)(4) 38. Defendant incorporates paragraphs 1 through 37 by reference as if the same were set forth fully at length herein. 39. Count II of Plaintiffs Complaint is entitled "Intended Third Party Beneficiary." 40. There is no cause of action in Pennsylvania entitled "Intended Third Party Beneficiary." 6 r 41. Plaintiff asserts that, "in the alternative, the provisions of Both Subcontracts [sic] discussed above provided that Heirloom is an intended third party beneficiary of the LaMarco Subcontract." Ex. A ¶ 29. 42. To be a third party beneficiary entitled to recover on a contract, both parties to the contract must so intend and must indicate that intention in the contract. Pennsylvania LCB v. Rapistan, Inc., 323 A.2d 410, 414 (Pa. Commw. 1974), overruled on other grounds, 371 A.2d 178 (Pa. 1976). 43. It is obvious from the language of the quoted provisions of the contracts that they were not intended to benefit anyone other than the parties to those contracts. 44. Moreover, the provision in the contract between Plaintiff and Custer Design Group would apply only to Custer Design Group's other contracts. 45. Similarly, the provision in the contract between Defendant and Custer Homes, Inc. would apply only to Custer Homes, Inc.'s other contracts. 46. Therefore, even if the aforementioned provisions were intended to benefit third parties, which is denied, Plaintiff would not be such an intended third party beneficiary to the contract between Defendant and Custer Homes, Inc. because there was no contract between Plaintiff and Custer Homes. 47. Accordingly, Count II of Plaintiffs Complaint should be stricken, with prejudice. SIXTH PRELIMINARY OBJECTION: DEMURRER PURSUANT TO PA.R.C.P. 1028(a)(4) 48. Defendant incorporates paragraphs 1 through 46 as if the same were set forth fully at length herein. 7 49. Count III of Plaintiff s Complaint is entitled "Breach of Contract: Use Claim Pursuant to Pa.R.C.P. 2002." 50. Plaintiff asserts therein that it is the real party in interest in this action and "is permitted to assert this claim under Pa.R.C.P. 2002." Ex. A ¶¶33-34. 51. Plaintiff further asserts that "the specific provisions of the LaMarco Subcontract were entered into for the benefit of [Plaintiff]." 52. Pa.R.C.P. 2002 merely provides that all actions shall be prosecuted by and in the name of the real party in interest. It does not create a cause of action. See, e.g_, Newspaper Guild of Greater Philadelphia v. Philadelphia Daily News, Inc., 164 A.2d 215 (Pa. 1960). 53. Accordingly, Count III of Plaintiff's Complaint should be stricken, with prejudice. WHEREFORE, Defendant LaMarco Contracting, Inc. respectfully requests this Honorable Court sustain its Preliminary Objections, and strike Plaintiff's Complaint, with prejudice. Respectfully submitted, Dated: (~ - ~'~ 7 By: Anthony T. i o`; esquire I.D. Num .76583 Corey damson, Esquire I.D. ber: 204508 T as, Thomas and Hafer, LLP 5 North Front Street, P.O. Box 999 Harrisburg, PA 17101 (717) 441-7057 Attorneys for Defendants 8 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: Thomas J. Nehilla, Esquire Jennifer Zimmerman, Esquire RHOADS & SINON, LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Attorneys for Plaintiffs THOMAS, THOMAS ~ HAFER, LLP Sherry Hauen i Dated: {~ - rj -Q 7 485617.2 9 ATTORNEY VERIFICATION I, Corey J. Adamson, Esquire, of the law offices of Thomas, Thomas & Hafer, LLP, hereby verify that I am the attorney of record in this matter for Defendant, and that as such I am authorized to make this Verification in order to comply with the pertinent rules of civil procedure and that the information set forth in the attached documents are true and correct to the best of my knowledge, information and belief. I understand that any false statements contained herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. By: Date: ~ ~' - 5 " ~ 7 THOMAS, THOMAS & HAFER, LLP David W. Francis, Esquire Attorney LD. No. 53718 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 BROADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plainti~' Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CNIL ACTION -LAW NOTICE HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. v. Plaintiff LAMARCO CONTRACTING, INC. YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim 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 YOU CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 EXHIBIT 656292.E ~- JURY TRIAL DEMANDED AVISO USTED HA SIDE DEMANDADOIA EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y obj ecciones a, las demandas presentadas aqui en contra soya. Se le advierte de que si usted falla de tomar accion Como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier soma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra soya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes Para usted. USTED DEBE LLEVAR . ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO ONO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARR AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 2 JURY TRIAL DEMANDED COMPLAINT NOW COMES, Heirloom Cabinetry of Pennsylvania, Inc. by its attorneys, David W. Francis, Esquire Attorney I.D. No. 53718 Jennifer Zimmerman, Esquire Attorney 1.D. No. 89459 BROADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. LAMARCO CONTRACTING, INC. Defendant Rhoads & Sinon LLP, and hereby submits the within Complaint against LaMarco Contracting, Inc., and avers as follows: 1. Plaintiff Heirloom Cabinetry of Pennsylvania, Inc. ("Heirloom") is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania having an address of RR 4 Box 390, Nelson Road, Mifflintown, Pennsylvania 17059. Heirloom's principal business is constructing and installing wood cabinetry as well as constructing wood furniture. 2. Defendant LaMarco Contracting, Inc. ("LaMarco" or "Defendant', upon information and belief, is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania and has a registered address of 130 Hillymede Circle, Harrisburg, PA 17111. LaMarco is an HVAC contractor. 1 3. Custer Homes, Inc. ("Custer Homes") is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania having an address of 2805 Old Post Road, Harrisburg, Pennsylvania 17110. Custer Homes' principal business is serving as a general contractor constructing residential homes. 4. Custer Design Group, Inc. ("Custer Design") is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania having an address of 2805 Old Post Road, Hamsburg, Pennsylvania 17110. Custer Design's principal business is serving as a general contractor constructing residential homes. (Custer Homes, Inc. and Custer Design Group, Inc. collectively referred to as "Custer") 5. Steven Neiman, owner of property located at 3 Springdale Way, Mechanicsburg, Cumberland County, Pennsylvania ("Neiman"), contracted with Custer, as General Contractor, for the construction of a residence on his property located at 3 Springdale Way ("Neiman Residence"). 6. Custer Design entered into a Supplemental Trade Contractor Agreement on or about October 2003 with Heirloom ("Heirloom Subcontract's for the construction and installation of cherry and pear wood cabinetry and paneling in the dining room, family room, office, master bedroom and master bathroom in the Neiman Residence ("Heirloom Cabinetry"). Heirloom also constructed several pieces of wood furniture for the Neiman Residence, including, but not limited to, an entertainment center, a bed, a desk, and a dining room suite ("Heirloom Furniture"). A true and correct copy of the Heirloom Subcontract is attached hereto as Exhibit "A" and incorporated herein by reference. 2 7. Custer Homes entered into Supplemental Trade Contractor Agreements (collectively the "LaMarco Subcontract") for installation of the HVAC system in the Neiman Residence. A true and correct copy of the LaMarco Subcontract is attached hereto as Exhibit "B" and incorporated herein by reference. 8. The Heirloom Subcontract and the LaMarco Subcontract ("Both Subcontracts") specifically provided: a. The each was responsible to the other (i.e. LaMarco responsible to Heirloom) for damages arising out the work; and b. That each would hold Custer as not responsible for damages incurred as a result of the other's conduct (i.e. that Heirloom could not look to Custer for its damages); and c. That each would look to the other to recover damages caused by the other (i.e. that Heirloom had to pursue its claim against LaMarco directly). These contractual obligations on both parties was set forth in Both Subcontracts as follows: Should Trade Contractor damage work of other contractors or Builder, Trade Contractor shall pay the cost of repairing such damage and hold Builder and owner harmless. Trade Contractor agrees that he will not hold Builder responsible for loss or damage or injury caused by another contractor and further agrees to look to said trade contractor for recovery from it of any such damage or injury. 9. Thus, under terms of Heirloom Subcontract, Heirloom was contractually obligated to pursue its claim directly against LaMarco. 3 10. Further, under the terms of the LaMarco Subcontract, LaMarco was contractually obli ag ted to pay Heirloom's claim directly to Heirloom. 11. LaMarco installed an HVAC system, which included equipment addressing humidity levels, in the Neiman Residence on or around October 2003. 12. In accordance with the LaMarco Subcontract, La,Marco was to perform all work at the Neiman Residence in a good workmanlike manner. See LaMarco Subcontract, ¶ 1. 13. Thus, LaMarco owed a general duty to install the HVAC system in the Neiman Residence in a workmanlike manner and in accordance with a. Section M1411.3 of the International Residential Code® for One- And Two-Family Dwellings, 2003 Edition, and b. Section 307.2 of the 2003 International Mechanical Code, and c. American Society of Heating, Refrigerating, and Air-Conditioning Engineers ("ASHRAE"~ Standard 55; and d. 2005 ASHR.AE Handbook-Fundamentals; and e. ASHRAE Standard 62.1 Ventilation for Acceptable Indoor Air Quality; and f. ASHRAE Standard 62.2 Ventilation and Acceptable Indoor Air Quality in Low-Rise Residential Buildings 4 ~ ~~ .. 14. These documents required LaMarco to install its work and operate its equipment so that the humidity in the home was within requirements set forth therein. 15. LaMarco also had a duty to ensure that its work did not damage work performed by Custer or Ouster's other subcontractors, such as Heirloom. 16. LaMarco failed to install and operate the equipment so that the humidity levels remained within these levels. In fact, Restorations Unlimited, the Custer Subcontractor who installed the hardwood-flooring in the house, measured the moisture and determined that it was three to four times the normal range. 17. As a result of LaMarco's failure to install and operate the equipment properly, Heirloom's work was damaged and had to be replaced at an additional cost to Heirloom. This damage included: a. Damage to the wooden cabinetry installed in the family room; and b. Damage to the wooden cabinetry in the master bedroom; and c. Damage to the cabinetry in the master bathroom; and d. Damage to the dining room table; and e. Damage to the office desktop. 18. As a result of this damage, Heirloom incurred damages in the amount of $34,558.00. 5 19. LaMarco's improper installation and/or operation of the equipment was a material breach of its contract with Custer. 20. Despite demand, LaMarco has failed to pay Heirloom for the these damages. 21. Following the problems encountered because of LaMarco's breaches as described herein, the entire heating and air conditioning system installed by LaMarco was reengineered and rebuilt by a new HVAC subcontractor. 22. Pursuant to the terms of Both Subcontracts as discussed above, Heirloom is looking directly to LaMarco to recover its damages. 23. To date, LaMarco has failed and refused to pay Heirloom for Heirloom's damages it incurred in replacing the Heirloom Cabinetry and Heirloom Furniture. COUNT I -BREACH OF CONTRACT Assignment of Claim 24. The foregoing paragraphs are incorporated herein by reference as if set forth here at length. 25. The provisions of Both Subcontracts as discussed above amounted to an assignment of Ouster's claim for breach of contract to Heirloom. 26. LaMarco's failures as discussed above constitute a breach of the LaMarco Subcontract. 27. Pursuant to the terms of Both Subcontracts, LaMarco is contractually obligated to pay Heirloom directly for the damages that Heirloom incurred. 6 WHEREFORE, Plaintiff, Heirloom Cabinetry of Pennsylvania, Inc. respectfully requests this Court enter judgment in favor of Plaintiff and against Defendant LaMarco Contracting, Inc., in the amount of $34,558.00, together with costs, fees and attorney's fees as permitted by law. COUNT II -INTENDED THIRD PARTY BENEFICIARY 28. The foregoing paragraphs are incorporated herein by reference as if set forth here at length. 29. In the alternative, the provisions of Both Subcontracts discussed above provided that Heirloom is an intended third party beneficiary of the LaMarco Subcontract. 30. As an intended third party beneficiary, Heirloom is permitted to pursue this claim directly against LaMarco for the damages suffered by Heirloom on account of La~tilarco's breaches discussed above. 31. LaMarco has breached its duty to Heirloom by failing to pay Heirloom for the damages that Heirloom incurred because of La1Vlarco. WHEREFORE, Plaintiff, Heirloom Cabinetry of Pennsylvania, Inc. respectfully requests this Court enter judgment in favor of Plaintiff and against Defendant LaMarco Contracting, Inc., in the amount of $34,558.00 together with costs, fees and attorneys fees as permitted by law. 7 COUNT III -BREACH OF CONTRACT Use Claim Pursuant To Pa.R.C.P. 2002 3.2. The foregoing paragraphs are incorporated herein by reference as if set forth here at length. 33. As explained herein, Heirloom is the real party in interest in this action. 34. Heirloom is permitted to assert this claim under Pa.R.C.P. 2002. 35. As discussed herein, specific provisions of the LaMarco Subcontract were entered into for the benefit of Heirloom. 36. LaMarco therefore is directly liable to Heirloom for its breach of the LaMarco Subcontract. 37. LaMarco is liable to Heirloom for the damages to the Heirloom incurred. 8 WHEREFORE, Plaintiff, Heirloom Cabinetry of Pennsylvania, Inc. respectfully requests this Court enter judgment in favor of Plaintiff and against Defendant LaMarco Contracting, Inc., in the amount of $34,558.00, together with costs, fees and attorneys fees as permitted by law. Respectfully submitted, BROADS & SINON LLP DATED: September~~, 2007 By: David . Fr s, E quire Atto ey I.D. 718 Jennifer Zimmerman, Esquire PA I.D. No. 89459 P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 9 ~~i~3/7c;~1~ u; b Custer ~esigx~ Gxovg, ~x~.c. ~L'r3'L.L°'vfE.N'I'~„i.~'~P C;C2Ni7tACTC~~ AG'~.r:'~i~'r~r~ Tradr Centracinr iirsut pra:r.'dc c cavTesc~ C.~~=ate cf ~ruxn artre; ~~'m:~;4: C~te~ I~e~' ,~ rrr~u,~,, ~.?~c.~ ar tue Cartr, j~euts Hofer T~Si,~ Cs~facu~ rare: z tJe ot! {1= f~`r~nr eta re.! ~,r~ ref, j~r;~t ~cr~~rr~ertt; .~'3. ~. T. rrmi~E.r ,mu: i ~a i~~;ted ~n Cust~s IAe~i~~~~, I :r.., ZS4 O1c' ?n.. t }~G*~ .5';~it¢ :00. T ?,anir5ur~ I?~f 1 ?110. The pari.~ to ;.bzs Cvn9tLU.ct7.QE 1~~com~t uc ~t~s#~1., UestgE~, Tic., "13uildcz," :end /-~~~~~'z ~~/~T~~' d ~~„ ~ "~'racc Cot~t~.ctvr." This rL~;scc:r,cr.x ah.all ~ov~xtiz. all .lab+cs~ pez£oa~.~ed and a~a:eri2l h~-nishcd by Tzadc C:orz-.zacro~ fox .'irta7.drx ti:satil eizhez party revokes it by delireanc; ~:nrrca nnrice cif such rcvocarion to the other paatp. If eirhes party a~okes r~us a,~EC=r~=cnti, zt ai~.li b~ null and ~•oid tor. all coz:~acLS eA~sed into ehe~. 'rradc C:c~n~saor; acz~E=: ~'n petfatt:'s a]] ~Jazk ~ a wr~rk,.manJilie aauner; acid Ta d.c~,i'~ez ,nt:.eetials which ;u~ taew and in arcosdaacc vri~ nc~ p1as~ and s~ecflcariorls deli~ie~-ed to'I"sadG Gor.~.ctas. ~.ipon rccci~i.~g ndrie~ ~vrn Fuilde~ that Z'tade Gontracc4r has perfazracd nor, impsape~;, ar unsoectd labor, ar 3:Lvexed azazerlals at vaxiaacc with which Is dp,atiitc,3, ;;,rsde Cozztractnz ~•ill, within tcvca,r~-frn~r {24) hours, pzvcced to ret~.o~re suci~ work C;z csaLe:ials as~d mdse mod ail ot~cr work oz ms*~zia7.s datn~ged thereby. Tt~.de Conrxactur shall aoc subcos~ an3~ pa=r cac Ct:c ,~: ork ~zxlc4ut the ~SZXax ~-ritten conscuc o£B~:i).dez, and such en:~s~t shall riot z'e.egac Tza.3e r..onccactc~r from any respoziai:riility ar liabilZky in C~f~r.ectiaLl ~iLb. Lbe au'vcoat-srca It :s mutuai'ly uradezstood a:~~ agz~d batweem ~3~ulaer and Tzade Cc:ntracto: tUa: I'rac'c C:Unt~a.crac l,a ar. z;adeperlc~ent coaecaciox; eh~t; ~.t rsQ Irma atc anr• o~ETSadc Caa*.ractor'a cmpiopces is tl~c ylav of ~3uil,dr:t, ~c~r. i. $~:ildc; xospcn*sil~ic co an7 of ~:'ta4e Cor~.~actor's euzpivycc.S Eor r,S,e p~yt~ae~.t o£ rheas ~~es; thlt Tr~dc C{mtractar; Alone ~~ zz:~ponii~Ic iaz camglzua.c= w-ztkt III. ap,~licwUl.c st`ltut^.s, oL-dina~ces, a.nd iZ~zlatiana GvaG~aia,g ~ cmployac°s Social Sct~:.~i r, ~4'osk~sa.ar:'s Cr~rPenaazion, and atl tiafe~- cAndztioca a,ud :~;coxd kc.^pis~ .ccc{uit~ertt3 Lndc.z tt:c C~ccapatior~al., ~afe:z grad ~ea.'tth tlct of 1970 ~nt3 am~t3mcxxrs rlscr:otC~, Stace and Fed+rral ~aation. and'sccztstt7,~. Trstidc Contzn.ctar a.l~.a1l maintain, a.l I~ vtivn c.~p~se, 5ueli insur~ce a~ .Trill ptarcct 1.iIT1 £zr~m wvtkr_n.~cis's campcnsativn acrs and ~~ o*her cla.i~.s and Gam~i~es L"oz pery~~na 7,njnt~*f. ~ci.~dimg d~tSs, in rli:::;.a:.iiz,um araonxlc of ~S~~G,~a0.00, Gchicil ray anise from operatlpns under ~h::a ~)nrra.c.-, ar}.;e:l'la~ such c;}~cratirnzs be Uy tic Tt~.d.c Cc~ntnL~oz ox ay auy c~thcr wade cunt-ac:oxs azris n-~loYcs b~• 1~.yonc datectiy ar indirrtt'l,y c1z~pli~y-c;~ 6 ~ E:ither rf dim.. Tsai3c .. ~nr:rarLOr ~t1C+'C17~r ~~TICCS to tz~demnltj- and hold. h2-r-,.le~s wilder fs,ozz3 air c'_si.~.~ -~,~,3~~ ~., fl, cn,';v7. respect tv khv m~.trc-'~ outlined Ln t~se par~~raph. e~ ~~ppnf ~'zzde Con~a~to:'s Cest2.Ficate a Ins,,;~sacc mu;~e be ap~rcved izt ~;aung bs' CustGx Design Grvu~, ~11C- at lcsir tlkec (.~) daps pzios to commen.cealeat ~~f woz'.t'ov Tradc C,ori~.t=toT. Tradc Contractor agrees t~ pa"j fvr all xzaa.tczial: aad :~]I .Lzbo: supplisdby~T+ raric Cr~ar_-acta2 FoS ttLC 1C31] W~1e:1 Clue 3.17.d #O hold I§u~1de-_ an¢ ~C C)WS1d }.Zc1SA~lF.AS ;2DT7 aa~r licris ;uisira$ opt o.~ ~bor, inatpsss?s, oz subconaacts fux~iahe:i by Trade CoZtra.otnz, Bu~dc:t shad, have the ,right to xcquirc Tra+~~c C_om~actnr ro pse~-ide ru~acs by all pew-sons supplying lc~boz, roax~~.1-s, or :sErviccs to Trade Contracto= for tie job hcr~in dcscn~cd aszd to vrishhnlci final. I)a~lLtls'i1.t ti:ntt~ such releases 3.se supplied. 'Trade Conr_actos aciuzo~wledgcs chat it is ass iudcp~x,de~tt cor~txactox and agzaes to pati- all cr7n~zbut:ons s~uised by 1zw yr cvrtit~t ~hic'~ i£ unpaid could b e am encualbrance :ipor~ 'r.ao rca.1 +~tc~pc..~ wk~e,.e th.= woxl,; ;s performed. ~. Trs4te C;cantia.ctot ~recs to permit ai:ls~ Trade Cnntsa.ctozF 1.eoz.sonwble opportunity' fnz Ftcz~ge of materials aid e.~ecution c~z their ~wo:tl;, ~~I sha.II pYOpeslp coo~diaatc ire work tivith theirs, If a.:p part of the ~c~,t~ *c+ by perfvtrn.ed by Trade Contracor; dcpentls, tpr ptopc-r ~cocut~.o~, vt:. ti'ae wank of ohhe= ~a.de cvnrxaccors or 3uild~; r~ tnc owner, Trade C~txactvz shall irrsae~iate?y re?ort conflicto, dere~ vz omissions t:*sat r~d~ such other work 1za~elp or. t~suiLablc foK e:~e~txoa of ate cork. T'rtacaed,isag with. ~ wor]t ~stliQtst such r~o~ oz defects! i.s azsd aczeptaace by Tradc Conz:ac~tflr of uti a work of ozi~ tliaf p:acedos:. oT .is pCrfoxxts:d sirat;ltass~-ot~sly with, ics '~orlt, Should Tradc Cazlt~.aatar aatna.~ u~o:rk o.f other trade contractors or Builder, ?rode Coszcaotar ;hall pap tb,c coat of ceg~ir~rsg such d~agc and hold Builder and oc~-acr harmless, 'Grade Cvrzt=actat agrees tit he w•:lI not hold Suudct responsible: fnr Lora o.r, dsrA.~e o: irijusy caused by atiathcs trade cotlt;actoS azzd ftuthcz agrccp to laolt to said trade coslLtactor fir tkcc rccaro~csy £:om i.ti of anp suds datria~e o r ,i.[tijury. T,raclc Crmtzactor shall profuse sad pay all t~ecc~sz.z~y permits =cquisc3 fnr pt-zoLmaace iay Trade Contzactoc umdez this ad,L..esz,:n:atwhieh are c~btait~able b;. 'I"lade Conaa~tor aid ~w~.1 protect url5ayshed work and ail materials for T=adc Cor~txsctor'3 u,4C, or iacicira,ral nc~=cto, a3-a.irsst c ,~erv J~-ia d c~F damage, including d:.magc: by th.e elements, esccpc ~ by tixtr„ uz~.til cr~uiplotion of the building. G. Tradc Cosat`actos: arcs tv place debris is~3uilticx's durtspstcr, unless: ia.structssd othczvrisc, rubbub. sad Wzsctc matanals ctcared'by its pperatioo. as the ~vo=;t pzo~egscs, in order to ta~,in'~.ixx a claan, safe ctsnditipa :gad, tTpozl tc~mplctic~n of icy work, to scinc~ve all Cools, esiuipmcz~t, m~atezia:ls sad ~__ te. AJl Is.ddcra ue to be 1o~rcrcd and/oz asfely stared at the end of earls dav. A»~ rubbislY or W'astc anaterials spot c%anrci up aztd propcz;:q cusp+s~acd of by Tcatie COL:tI~CIT)x w311 zes~alt lri a backchatge. "'r~.dc Contractor l~.ezs:by utlcoaaitios~]1p gtiarzsztes:s stll his wotlc, :oboe and zr~c~tcz+is>G° to 13uildex anci the owner. rt pu-c'haser fns: rhE pe~idd oE'B~iilder`s ro~a~;a,~YC [o cht ov:rct or p~~tc~iascx. ;a,,,sd~s a..ro3 ~CJI v/LVVJ ~. iJJV t1CLJla/a i ~~•~~" •-~• C B~dP1 a~eCF t0 Gu~]~Sb:CrG f11C ticoslc as;3 zoordiis~tt: tho work of oc~cr supplia:s snd Lade crn~.n,crare ~ LstabLc ~'I'rad.c Cnn~-sctor to p~.rtarrn irs work timely and et"ac1e1'tLly, stld T3w~,dE~; ~rEes tha*, is ryll ttrske •t~ie pay-n~~ta .>:quu;ed het:cunder praznpr.Ey Whcz~, dtte. 9. Beutd~ aces so gay promprly Tsadc Coa~ssaet~~r in his perforraasice of Eus vfoxk aad n~~ lztez t;hao 3Q d,~.ya wttbin eubtztiasioo. vEa~uy invaice, cossdxn.czmed u7oo vctifi:~tzon by Builder that tlxo Work }s.an been .~a~tisfactaril? pcrfouncd I~ psymemt is not reccivad ~ec1rhin tl~ geriod aad Trade Cerura~z cats aot: secei~c no .cation j+zsafyisig rkcc delay n payment; Tzadc Cnntractaz may teizrznate tfs;s A~re.~cnt ~tpou sc`vc~ ~ daya writzer. s1p>r.ce of iua iutzrt tv do sc~. ?i Tx•$dc C;on,tJ:actoz does tco t;ert>1i~,atG kvl7.osv;it~ said motz~e, he shall be ;~tizled to rccc;-ve the rea.a~anabl,e ~-a'tuc of ail &natt>2als and laboz iacatpc+ratcd in t}s.c jbb co d'se time of tcrosiuadon and chc proutT:zde Cont:ractnr wou:d nDxxtut]Iy e~peca. sa Have been made had the uaneSaet bccz>, fu1y a,>zd pt:o~trsiy pcrfo~.•a>rd. 1Q. Zf tne'Tadc Contractor shxlt becane: bankrupt, zaalcc :esaigtmenr for the bcnc~l of cxcd'ztozs, at o~ixwisa bccvm: uttablc to camp out the ~x~ork or if ~thc Track Con~;~~os, without prapcz cause, rrr~e:s ±*rnn the n~c~rk ror a period in e:ccese of forty-ci~at t"4d) Izt~u~, then the Etvldor trap, by >;2btice is w~~ ar ~crbal to zhe 7t-ade Coupactor, tcstainaz,r ~ :~areez~.t x£ at=norz zs x~ox tv.k~n w case said defaulti Evitizi.'~ twenty-foot; (24) hotxta aLtex Builders ccmmut~icariottz aF such. notice. If Trade Contractors shad is anv uiaaner ~; nduly da?.ay or orhervisc ac~;lect Gc~ firitiii his xespousi}slitdes, a ithout UotZa fide cause, wzrlura the ~aasc hczeiabcfarc prnvid~d, or orher~ise breach >?.uy pzovision o£ this Agzecmt:szt; Builder ri~r, br uzi'stMt pr verb2i nodcc as hezcinbeforc oro~-idcd+ se~uir: rye ~'r.azie C:nno;acrpr ro pmce,ac e,-itlZ the wask within r~v~ty-four (24) zr~urx a>rur cana~ey~nce oi: sucks antics or co~acL ~y suds 6s~ach of tlvs Ab~cemear, wir~aiv, sweaty-~~us (Za} izoux period a.ud ugou faitcu~ ~ do sa, the Builder shat r1~en hstve th,e z7.g~.t u~ terrtit~ate this Agzecrricrst and co c:aplcsy zny ot}aer. T,rxie Catatractos to continue aad cQtziplete tlse .said wnrk accr~sd~.a~ ~ ss.,id plans and sgecificadons, ~r arzy :ilt:~atxcrts or zdditiarts ns hcxzixxbcfare pzovided, ~d shall also l~.sve rba t~ht m .turbota~e such. zeplact~cmt tide coatnccoz ea use arrp stzxroriales cxr ptirsparty oaf, tn.c '~'s'sde Contzaatoz upon the grauad. If chc cegcasc to torn~t]ete t}ae eotat~ac;t, m adclitoi7 to s~ny payments made of she Trsdc Cnnirattoz' l~©reuztdez,, shad ese~~l the origiuai subcor~trnct price pit, casts for any a.daitivts~l cvarJc, Txada Coatxacto:r shall h~: liabl~c to the Buildcx fe.r, such e.~CCSS ^aLt171S. 11. Jz~ the event Ttsdc Cont_actox dit9GO~>rts atty xu+roaSistcasci.cs or c~oLg iri his wotlt Wzth rha $uildcr or oe6et t~'adc coat~ttctoza in the pi9sas and apec~"iraria~a, }a,e sb.t+.Il, before perfomin$ said wozk, proxaprip bxi~ stick matte:,e to the artnntivn of the .Builder who aha11 rhea ~*rc 7zatl~ Cvnrrsetor ~rrittett ia7at~scticus or directions ~la.tiv'c to raid ix~coasisteacy o= e~oz. No ciaizt~s fot: additional campcasation Will be cpoHidsze,d ar~d Trade Cosatractflt shall be eatitIcr{ to mo s~1ClZ nddi~ional avxns, taxtLcss lac s}i.~A hare, if aC :zu possible, bxvught 1tic inc>=msisten:}~ ar prat to the 13vildex's attcatzon prior cr peziann~g az~p work thcr~an. 1a. 'I'i~~ ,.q~rcczmcat a.ad cvcrq convenaZC and pzocrsion h>rt:et>z ,Rha11 bmd, apply ta, and can in favor of rake isns~riea, thezr sucorssais in irttcresr a.t~d tl:~r lcgsi xcpreses:tatiFes. rc~+.tt~. a;r13 13. In coas~e~*uin~ rhis ~gxecrz3em>:, dzc Duild.cs ~,a3 'Z'zade C~~atracticsz nip be mars r,~j.at^. one person; tha: if the cancez-c ao xcq~~i:osa the singu7~z praaot~, shill ~e ts<ke~ to mean and irtc{,id~ the p1ua1, r1~e rarcUJinq nc~ £c~:stiz~.c, and rase acute:.; :u~d Chat gemezallp aIl ~tgmtnatical, chaty~es s~a~ b~ tnada, asFu~~z~ end ~,rrtpli~d t;q tsmke tie psocisio~s kzPseaz a~ppip e~t1~~lY to corpatatiou: anc~ t~o ;~~.di~-i,duals. Trsric C;~n,=st*rar's Addr~,Qtt: ~iR y ~aX ~~~ N~~^r ~~-t~ /~1l ~~ 1a I~1V~ ~~ l7Du `~ B~~n~s~ z~on~;(`J i-r) ~3~ - Boil Faz~l. ~~_~~~~~~~~ T~tds Con,~ro:'s re3er,~ .T_p ~`~ ~3- a ~ ~ L'SCUL'pC7SStLG~~ ~~~0 ~I3.0 f~~1RLdOtrt ~8/N~T,~,, o+~ ~~ J.]~~, Ptiarn~t Trsdc CQnt~c~;ar Cotllp4Ja.V Name THED1~aRE ~~ tiV~c4Alf~ X'xynted I'~amo of Tc/adc C:pn~.czc~ d a ved c L~VGC• ~~ ~~ Aecc~te zLd ~ppra t ~~~ Ss~nstn of Tzadm Co actor Cu~r.~z Debi~u. Gsau~, Inc. Signsztue of Iiutldrs . B,ilciez'S t1.d,dsess: ZSf~S 4;d Pc~wt ]monad, Suite 200 i.-{az:~sl~ur~. PA 1711 R Dusincgs Phome: t 17 2i?-Gt~2 i -~vtseC 4103 , J:J~LUe 1]7Y 1G•CJt a~,_.~' r . r ~~ r o4 r r LA(~1~,7~ !-~t,4 I iNU ~ AC P~ 04 '1'. -c,i~9 C~_lSTER HOMES IP(r PACE ~'2 ~iT~~'t ~4hi~S, IBC. SLfipLTfu. 5~1scoNiR.E.cr AGRE"I~QV'P Ttze panics to this CoAStruc+~on Agrees~t are CusZ-r homes, Imo., "B~dei'," attd ~~ ~'~~?n ~ 1 yC: , "Subcontractor." This Agreaa~st shall govern aIi tabor performxd and mstsriat furnished by Subcontractor fbr Dktililri' until cit}icr party reYO~sr it by delivPr+ng written notice Of sUCl1 rtVOCaZ;oB. tc tbs other parry If either parry revokes this agreement, it shall be null and void far all contracts entered iota thereaRer. Suhca~actor ag~sa: To paf3rrn ail work in a ~rorkma,ntilse tt~artner; End Ta deliver tns2erials which are now and in accordance arith the plane and sp~i.ficatior~s dctivered to Subcor~ractar. Upon receiving norica from Binder that Subconuactcr bas performed inferior, isztgroper, yr unsound labor or delivc~3 materials at variance v~ritts which is specified, Subcaavactor will, within tWari#y four (24} bourn, proceed to rerncvc such wank or materials and make good all athrr work or materials damaged thereby, Subcontractor shall not subcontract any part at'the warlE without the prior writt~ consent of Budder, sad suck cosls~t shall not raleasc Subcontractor fcor~ any rasponsibi~s't} ar iishs7'zry in connrctian wish the sulatArnracL ~. It i3 mutuslty understood anal agreed belweca Builder ezx3 Subcontractor that Stabcontractar is an lndcgeudeni cot~u'aatoc•, that at Qo time are any of Subcocc~'actQr's employees in the employ of Builder, nor is Bvildu responsible to nay of Subcatriractar' a ertrployecs far the payment of their wage's; that Subcontractor alo'ac is rcapansiblo for cvtapli~tnce with all applicable s'•atutes, art~aaaces, sad regulativt;s cancarn~ng his emplayta'a Saaiat $e~-urty, Workman's Comper~s,ation, and ail swjety conditions aAd recs~rd kGCpir~g requireraeui3 under the (kxupational, Safhty sad Health Act of 1970 emd amenda~eszu thin, State and Federal taaatiaa, sad Tca~siag. Subcazrnractor shall a3sidiaiu, ~ tW own txpwse, such insuraQCx as wilt protect b~ from worianea's campen~stion acts and from other claims end dacasges for personal injury, including dast•Ir, in the minimum amount of $.50a,00~.04,-which may arise from ap~ratians under this carrtract, wftetha such opstaiions be by ih~a Subcoricr~tar or by any other . subeoatrzctv'rs or his ampto'yer by anyvzle direerhj or indirectly employed by either ot'them Subcanirac+~r hereby agrees to indcrrurii'p sod hal3 hsnnless Builder Envoi any dasazs with respeG to tha matters outiincrl in Ilse paragraph. A copy of Sabc.~-tcc'r Certificate of Iusurauce must b~ approved is wriz~ng by Cuter H4mrs, Inc ar bass ttu'a {3}days prior tv caauaeocsmeai of work by Subcontractor ~~ ~,,: ~- ~f rl rnarn4sr -1,~~_ ,1~~] ! 4fMAP.CQ i-~~TING & qC CUSTER HOMES i?~t~ Subcontractor agrees to pay for aIl materials snd td3. tal}ar supplied by Subca~ar for the jAb when ~e cad to boXd ~3tu'lder and 'the owrser harmless from any Gans arienng out aflabor, materials, ar subcvmracts fhrnished by 5ubcofltrac~tcr. $u~rier r~iail have the right to require Svbcar-tractar tc provide releases by alI persons supply~g labor, materials, or services to SvbCOntzaetor for tho joh herrin descnbed and to wettshold Snal payrtteat urrtd such releases era supplied. Subcontractor acknowledges that it i3 as independezit ogntraetor and agCCes to pay ~ caatnbutians requirzd by law r~r contract which if uapud could ba azi encumbrance upon thg real property wkere tlac work is patfbrmad. ~. Subeez~trnctor agrees to permit other Subcprii,-actors reason~le aFpvrt~sitY f~vr storage of materials atzd exertion of chair work and slt.ail properly eaordittate :ts work with theirs. If a~ay part ofthe work fe ba perfa:med by Subcoutra~kor degeads, far proper execution, on the work of other stabaatxtractors or Builder or the owner, Subcoaxrsctor shall 'u:unediataly report con$icts, defects of omissions that render such oche: work untimely or.uasut*able fox exa~eution of its wxk. Praceading with its work without ~h report of defects is and accr~ttnct by Subcordxactar of the work of others ti~at grecades, or is perforrncd sintultat~cously with, its work. Should Subwt~actor damagE wank of other 3ubcontr,'tciors ar Builder, Subcontrs:.inr Shall pay the cost of repairing suCls damage and hold Builder and owt-er harmless. 5ubcontractar agrees th.~ he ws~I riot hold 8ualder re$porz~ble for' lose or damage or inlcuy caucad by enoiher subcontractor and Furt}rer agrees to Iaok to said subcontractor Ear the recovery from it of any sarh damage or injury. Subcoatraaor shall procure and pap aII iie~sstuy permits squired for performance by Subcontractor under flue agre~erit which art obtaiua~k 1"y 5ub~ntraotor and will prefect unfaushQd work and aII n~tarials far Subccrotractor's use, or is:cideutal thereto, agar e~`Y kastd of damage, iaoludizig danta.gc by th8 elrsr~etrts, except damage by ft.Tt, urn campletian of the building. Subcontractor agrees to remove fi-om t{it site, unless i~atructcd uthervYiso, rubbish. and waste nzaterimIs created by,its operation as the warir progresses, iu order to maintain a clesn} safe coaditsaa and, upon canzplatiou of its cork. to remote al! tools, u~ipmeut, materials and waste. All udders are to be lowered andlor saieiy sitired at the cud of each day. Any nshbish or waste matarial9 not c3esned up and propcr!y dispasrd of by Subcontractor vr,~ ra3ult in a bacicchargz. 7. Subcdacraator heresy uacaaditiorsal]ygu~rantees a!l his wvrl~ labor and tnatcrials to Builder and thg owr1~ or purchaur for the period of Buildst's wan'anty to the owner yr puzclzasar, P~ @3 F`w.iE k~3 w _.i ~ ',G.129 CLI~TEri H~t•fE.t' It~A . $. Builder agrees to supervise the work and cgosd'uute the work of other Suppliers sad subcaatractor3 to enable Subcantrantat to perform its work tianely az1d efficiently, and Budder agrees that 'tt will make the payments requi~td hereunder promptly whoa due. Builder agrcu to pay promptly Subcontractor in his perfarzaauce of I•~is work and no later than 30 days witl,za subrni3sion of nay i:tvoice, eonditlo~d upon varificatiotl by Builder tl~t the work has been satisfacton7y p~crformed. If payment is not recrivexi within this period and Subcontractor does not reCr;ivc nati5eation justifying lire delay in payza~t, Subcon~actor may tsaniratz this 4grecsaettt upon seven (7~ days writtep notice ofbis bsteat io do so.. ?f SuL~contractar does so terminate fflIlo~~ing said antics, ,Ize obeli be ecititiad to receive the reasonable va~a of all materials and labor Istcorporated in tb< j ob to the time of ternpinatiori 8tul the profit Subcontractor wavid normally ~~set to have bees made had the contract b~ fully and propezly pcrfarmrzf. I4. If the Subcv;srractor shad become barslczvpt; make assigammt far the b~e$t of creditors, ar otherwise bsco¢te unable tv eany our t3te work or ii the Subcarrtraaar, without proper cause, removes from the work for a psri3d in e.~cccss of fatty-right {4S) hours, then the Bu:3dar may, by notice is writing or verbal to the Subcotzitactor, terminate this Agxzem~ ~' a~ctian is not takes to cure said defauh witliizi twenty-four (?~) bows after' Builder's catnrrumicatic~a of such notice. if Subcatttractors i3 any manner unduly delay or otherwise ztegiect to finish Iris respanstbilitias, without bar~a fide c~aasa, ~ri'Lhia the time hereinbsfore provide3, ar otherwise bream any provision of title Agre~aeat, Builder znay, by written or verbal notice as bersinbofore prvvida8, requite the Subcorrtx-actar to procatri with lire ws~rk within twenty-four {24~ IZOUrs after convayaace of such notion vt cArrea any such breac#t aF t3ti: r'L~eemmt within twenty-four i<~) hour period a;»d u,~on faIlust to do so, the Budder shall thza have the ri~tt to terminate tl~t Agreement aAd Lo employ any othtr Sub:ontradar to continua and complete the said work a~ccarcfing to said plans and spaci$caziaai, ac any alterations .or additions as he~bef'~ provided, and shaII also have tl?e rigJ3t to authorize such replace-nent sLbcouus+otot W use any material: or gropetty of tl~o Subcontractor upon ihs ground If the expense to can3pieza the cantriat, ip addition tv any paytn>ents made of the Subco~ctor Ixrzunder, shell excsad the oti~d subconrsact price plus casts for any additional warjs, Subcontractor shall be Eablc to the Builder ,for such excess sums. 11, In the evexu Subcontractor discovers a~ incoasistencics or errors im leis wosic with the B ~~ der or oihcr subcontractors is the plans sad specibcasi4us, he shall, before pezf+~rmin,a said work, Pr~P~Y bring such aiaLius to tie aticnti0ri of t5e BuIldar wba snail boa give 5ubeounactcer written. instructions or dsrecrions rdativa tv said inconssstea~y or error. Na claiata for additional ovmpcnaation will be caasidered aid Subcontractor shsII be et3titled to oo snob arldidan83 surus, ~:r:lfa>e hs shall Pfi~+~E ~ a • ~~ _ . ~ ~ ,• 02r ~~':'i~R`J' 1': '1~:~ L--J Subconsract:~r rrr~ 171 Farb ~a 5ubcat~tr~tor's Federal ID #; Subco,~aatot's Adclrass: Incorpvrxtrd~ ~ycs ^no `,n • ~-9 \W I ILJ"f I l l TJ W MV CUST=R F~htES Its Nava, if at all possr'ble, brought the incoasistcncy or ertos to tha B-Jildsr's attention prior to performing a~~ work th~acon. I'. This Agrtcment and warp cau~w~as~t and provision hereby snail bid, apply to, sad run in .favor of cite partite, their succrsaors is interest end their le~a1 - ~ . ..... _ reprts.eatatives. . 13. Tn construing this Agrtrmeat, the Builder and Subcontractor maybe more *.han one garcon; that if the cantcxt ;o roquiras, t]7~ angular pronoun shall be taken to mcaa and include the plural, tht ma'culinc, the fie, ar~d tha neuter, aad tfyat generaDy all g~ammatYCal changes shall be mQdt. assz:med, and implied to make the provisions heraof apgty equally to ca.rpvratioas sad to individuals, Susinas! Phone: ~G !~- `~ `~ I p Emergency Phone; ~'~a- :~56 q ~/` ?O~/ Acceptrd and approved Z-2 ~,•}gOa Custtz Ho,mes~c. ~_ ~~ -z-----Bmldct ~uildet'S Address: 1309 Laurel Paint Circle Harrisburg PA 17110 _ Buamess Phone: (71?) 232-6027 J Custer Homes, inc. SUPPLEN.~TTAL TRADE CONTRACTOR AGREEI~~'NT Trade Contractor mustprovide a current Certificate of Insurance, naming Custer Horner, Inc., as the Certificate Holder. This Certificate must be on file prior to release of firstpayment. All Invoices must be issued to Custer Homes, Inc., 2805 Old Port lead Suite 200, Harnsburg, PA 17110. The part%es to this Construction Agreement are Custer Homes, Inc., `Builder," and LaMarco Heating and Cooling , "Trade Contractor." This Agreement shall govern all labor performed and material furnished by Trade Contractor for Builder until either party revokes it by delivering written notice of such revocation to the other party. If either party revokes this agreement, it shall be null and void for all contracts entered into thereafter. Trade Contractor agrees: To perform all work in a workmanlike manner, and To deliver materials which are new and in accordance with the plans and specifications delivered to Trade Contractor. Upon receiving notice from Budder that Trade Contractor has performed inferior, improper, or unsound labor or delivered materials at variance with which is specified, Trade Contractor will, within twenty-four (24) hours, proceed to remove such work or materials and make good all other work or materials damaged thereby. Trade Contractor shaIl not subcontract any part of the work without the prior written consent of Builder, and such consent shall not release Trade Contractor from any responsibility or liability in connection with the subcontract 2. It is mutually understood and agreed between Builder and Trade Contractor that Trade Contractor is an independent contractor; that at no time are any of Trade Contxactor's employees in the employ of Builder, nor is Builder responsible to any of Trade Contractor's employees for the payment of their wages; that Trade Contractor alone is responsible for compliance with all applicable statutes, ordinances, and regulations concerning his employee's Social Security, Workman's Compensation, and all safety conditions and record keeping requirements under the Occupational, Safety and Health t'Lct of 1970 and amendments thereto, State and Federal taxation, and licensing. Trade Contractor shall maintain, at his own expense, such insurance as will protect him from ~rorkmen's compensation acts and from other claims and damages for personal injury, including death,ln the minimum, amount of $500,000.00, which may arise from operations under this contract, whether such operations be by the Trade Contractor or by any other trade contractors or his employer by anyone directly or indirectly employed by either of them. Trade Contractor hereby agrees to indemnify and hold harmless Builder from any clauns with respect to the matters outlined in the pazagraph_ ~, copy of Trade Contractor's revised 4/03 ~.. ' ~~ Certificate of Insurance must be approved in writing by Custer Homes, Inc. at least ` three (3) daps poor to commencement of work by Trade Contactor. 3. Trade Contractor agrees to pay for all materials and all labor supplied by Trade Contractor for the job when due and to hold Builder and the owner harmless from any liens arising out of labor, materials, or subcontracts fiirnished by Trade Contractor. Builder shall have the right to require Trade Contractor to provide releases by all persons supplying labor, materials, or services to Trade Contractor for the job herein described and to withhold final payment until such releases aze supplied. Trade Contractor acknowledges that it is an independent contractor and agrees to pap all contributions required bylaw or contract which i.f unpaid could be an encumbrance upon the real property where the work is performed. 4. Trade Contractor agrees to pemti.t other Trade Contractors reasonable opportunity for storage of materials and execution of their work and shall properly coordinate its work with theirs. If any part of the work to be performed by Trade Contractor depends; for proper execution, on the work of other trade contractors or Builder or the owner, Trade Contractor shall immediately report conflicts, defects or omissions that render such other work untimely or unsuitable for execution of its work. Proceeding with its work without such report of defects is and acceptance by Trade Contractor of the work of others that precedes, or is performed simultaneously with, its work Should Trade Contractor damage work of other trade contractors or Builder, Trade Contractor shall pap the cost of repairing such damage and hold Builder and owner harmless. Trade Contractor agrees that he will not hold Builder responsible for loss or damage or injury caused by another trade contractor and further agrees to look to said trade contractor for the recovery from it of any such damage or injury. 5. Trade Contractor shall procure and pay all necessary permits required for performance by Trade Contractor under this agreement which are obtainable by Trade Contractor and will protect unfinished work and all materials for Trade Contractor's use, or incidental thereto, against every Iflnd of damage, including damage by the elements, except damage by fire, until completion of the building. Trade Contractor agrees to place debris in Builder's dumpster, unless instructed otherwise, rubbish and waste materials created by its operation as the work progresses, in order to maintain a clean, safe condition and, upon completion of its work, to remove all tools, equipment, materials and waste. All ladders aze to be lowered and/or safely stored at the end of each dap. Any rubbish or waste materials not cleaned up and properly disposed of by Trade Contractor will result in a backchazge. 7. Trade Contractor hereby unconditionally ,guarantees all his work, labor and materials to Builder and the owner or purchaser for the period of Builder's wa~anty to the owner or purchaser. 8. Builder agrees to supervise the work and coordinate the work of other suppliers and trade contractors to enable Trade Contractor to perform its work timely and revised 4/03 a= efficiently, and Builder agrees that it will make the payments required hereunder promptly when due. 9. Builder agrees to pap promptly Trade Contractor in his perfomsance of his work and no later than 30 daps within submission of any invoice, conditioned upon verification by Builder that the work has been satisfactorily performed. If payment is not received within this period and Trade Contractor does not receive notification justifying the delay in payment, Trade Contractor .reap tP~-*ninate this Agreement upon seven (~ daps written notice of his intent to do so. If Trade Contractor does so terminate foIlowing said notice, he shall. be entitled to receive the reasonable value of all materials and labor incorporated in thhe job to the time of tP~lnation and the profit Trade Contractor would normally expect to have been made had the contract been fully and properly performed. 10. If the Trade Contractor shall become bankrupt, make assignment for the benefit of creditors, or otherwise become unable to carry out the work or if the Trade Contractor, without proper cause, removes from the work for a period in excess of forty-eight (48) hours, then the Builder map, by notice in writing or verbal to the Trade Contractor, tP mate this Agreement if action is not taken to cure said default within twenty-four (24) hours after Builder's communication of such notice. If Trade Contractors shall in any manner unduly delay or otherwise neglect to finish hi.s responsibilities, without bona fide cause, within the time hereinbefore provided, or otherwise breach any provision o£ this Agreement, Builder may, by written or -verbal notice as hereinbefore provided, require the Trade Contractor to proceed with the work within twenty-four (24) hours after conveyance of such notice or correct any such breach of this .Agreement within twenty-four (24) hour period and upon failure to do so, the Builder shall then have the right to te~.inate this Agreement and to employ any other Trade Contractor to continue and complete the said work according to said plans and specifications, or any alterations or additions as hereinbefore provided, and shall also have the right to authorize such replacement trade contractor to use any materials or property of the Trade Contractor upon the ground. If the expense to complete the contract, in addition to any payments made of the Trade Contractor hereunder, shall exceed the oJiginal subcontract price plus costs for any additional work, Trade Contractor shall be liable to the Builder for such excess sums. 11. In the event Trade Contractor discovers any inconsistencies or errors in his work with the Builder or other trade contractors in the plans and specifications, he shall, before performing said work, promptly bring such matters-~to the attention of the Builder who shall then give Trade Contractor written instructions or directions relative to said inconsistenry or error. No claims for additional compensation will be considered and Trade Contractor shall be entitled to no such additional sums, unless he shall have, if at all possible, brought the inconsistency or error to the Builder's attention prior to performing any work thereon. 12. This Agreement and every conversant and provision herein shall bind, apply to, and run in favor of the parties, their successors in interest and their legal representatives. 13. In construing this Agreement, the Builder and Trade Contractor map be more than one person; that if the context so requires, the singular pronoun. shall be taken to mean and include the plural, the masculine, the fe*T1nine, and the neuter, and that revised x/03 ~a i. ~` . i generally all grammatical changes shall be made, assumed, and implied to make the provisions hereof apply equally to corporations and to individuals. Trade Contractor's Address: Business Phone: ] (7 S~ ~ - ~ ~~ / Emergency Phone: ~ j7 S.f`~- Z ~ 3 ~ Fag: 7i 7 ,~~ ~ ' 7 `f~ Trade Contractor's Federal LD #: Incorporated.? ~pes ^no LaMarco Heating and Cooling Printed Trade Contractor Company Name v t Printed e of rade Contractor Accepted and Approved Signature o Trade Contractor Dat Custer Homes, Tnc. Signature of Builder Builder's Address: 2805 Old Post Road, Suite 200 Harr;.sburg, PA 17110 Business Phone: (71'7) 232-G027 n reviscd 4/03 Terms and Conditions n n C7 Construction Requirements: The work of all Trade Contractors, their employees, and/or trades is oxpected to be performed in a good and worlarranliice mamter. WorlQnanlike quality is defined as workmanship which meets or betters those criteria indicated in the construction plans, The Company's Scope of Work and defined by industry standards for each trade. Inspection Reports: The Trade Contractor and a Company representative shall walk the job together and complete each seuion of the inspection report(s). The Trade Contractor must correct any deficiency found during the inspection and the job must be 100-percent complete before payment will be made. The Trade Contractor and a Company representative must sign-off on all sections of the inspection reports(s) atresting that the job is correct and complete. Punch-List: The siu superintendent shall inspect the work of each Trade Contractor and will issue apunch-list of all items requiring correaron as soon as the Trade Contractor has completed his or her work The Trade Connector is expectd ro immediately complete their punch-list so that he or she does not slow dawn the overall construction of the home and/or rho schduling of the next trade contractor. Should the Trade Contractor not return to complete his or her punch-list within a reasonable time then the site superintendent may hire someone to complete the punch-list and the Trade Connector will be back charged for this work The job will not be considered to be complete and no payment shall be made until all punch-list items are completd and approved by the site superintendent. Homeowner's Walk Thrnu~h List' Any items found on the homeowner's wa11t-through that require correction must be completed immdiately upon notification by [he site superintendent Time is of the essence for completing corrections on homeowner's walls-throughs. If any Trade Contractor does not return to correct his or her items listd on the walls-through list then someone else will be hired to make the wrrections and the Tade Contractor wiu be back charged. Safe .The Trade Contactor acknowledges thaz he or she has/wiIl complete the Safety Training programs as cequird by The Company and that be or she has his or her own Safety and Haz-Coro program for their employees and/or trade contractors. Trade Contractor agrees to comply with OSHA and/or any other governmental agenry's safety rules and regulations. Should any citations, fines, and/or penalties, etc., be incurred by The Company due to the negligence of the Trade Contractor, the Trade Contractor agrees to indeaurify The Comparry for any and all penalties, fines, etc, incurred. Insurance: (Trade Contractor acknowledges that a requirement of working for The Company is for the Trade Contractor to have current Worker's Compensation and General Liability Insurance at all times. The Tade Contractor agrees ro indemnify The Company and to be responsible for any ciairns, expenses, or litigation arising from any claim made against The Company dire to any injury of the Trade Contractor's employee or trade contractor for any worker's compensation claim. The Trade Contractor also agrees to indemnify The Company and ro he responsible for any claims, expenses, or litigation arising from any claim made against The Company due to the workmanship, equipment, or materials supplied by the Trade Contractor.] 1t is your responsibility to notify us immediately if your insurance is cane :led for any reason. No Trade Contractor is allowed ro work without curratt insurance. Should you fail to notify us and we era notified of your uninsured status by someone other than you, you will be rmoved from our list of approved Trade Contractors and alt money due you for any work will be withheld, in full, until you have current insurance and we have nxeived a new original Certificate of Insurance. Securi :The Trade Contractor is responsible for closing and locking all windows and doors before leaving the job site az the end of rash day. If there is a problem vn the job site due to Trade Contractor not closing and locking all windows and doors the Trade Contractor shall be responsible for said negligence. Cleaa[iness: The Trade Contractor is responsible for leaving the work area clean and free of debris. If it is necessary for The Company ro remove debris left by the Trade Contractor, the Trade Connector will be assessed a minimum clean-up fee of $ L00.00. The site superintendent or other The Company representative will designate an area for all building debris and trash to be priced_ Such area may be a dumpster or a designated trash pile an the lat. Trash, such as leach or snack trash, is not to be thrown on the floor of the house or on the jobsite. All such trash must be placed in the trash baskedcanldumpsterond properly securd so as to not blow away. Port a-johns ate provided on all jab sites. Any person found using sinks, tubs, commodes that are not hooked up, ductwork, closets, etc., as a toilet will be find $100.00 and will not be allowed back on arty ofThe Company's jobsites. It is the responsibility of the Trade Contractor to impress on his or her employees and trade contractors that this offensive habit of using any area as a toilet facility will not be tolerated. Warranty: All work is to be guaranteed for one (1) year from date of closing of the house. Certain itesns must be guatanted for (2) years. These items are details in The Company's printed Limited Warranty booklet The Trade Contractor acknowledges that he or she received a copy of The Company's printed Limitd Warranty booklet and that he or she agrees to abide by the warranty coverage requirements and time period printd in this documrnt as they pertain ro his or her Wade. Drva-Free Worioatace: -fhe Company is a drug-free workplace. The use of any controlled suhstartees (drugs) or alcohol on any ofThe Company's jobsite(s) is not permitted. Should the Trade Contactor, his or her employees and/or trade contractors be found to be in possession of either drugs or alcohol on the jobsite(s) the Trade Contractor will be requested to leave the jobsite and will not be allowed to return ro work until the problem is corrxted. PriciaJChange Orders: All work is quoted and priced per home. Payment will be made per the price listed on the purchase order. Any change order will be priced per change order. No additional work will be considered, allovvec~ or paid other that drat priced on the purchase order. Should the Trade Contractor be requested to perform nay additional work the Trade Contractor must request a hand purchase order from ate site superintendent before additional work is performed. Purchase Order iYumbcr. No invoice shall be paid that does not include the purchase order number for the jab. The preprinted Request for Payment issued by The Company wit! be used as the invoice. Trade Contractor shall not ixgin work before The Company has issued a Purchase Order. Damage and/or Wastefulness of i1^Iaterials: Damage ro materials and installed items such as flooring, windows, cabinetry, fixnires, etc., caused by negligence on the part of the Trade Contractor, his or her employees and/or trade contractors will result in backcharges for the amount necessary to replace or repair the item. Wastefulness of materials by the Trade Contactor tivill result in the cost of the material being deducted from payment due the Trade Contractor. Proof of Name and IRS ID Number: The QtS requires that we have on file in our allice proof that the name and Federal m number (or Social Security number) that you are working under is the same as is on file with the IRS. We require a copy of a document from the ~tS showing your name and ID number (Federal ID for businesses oc Social Security numlxr for individuals). You also will be askd ro complete a Focm W-9. Without this documentation the IRS requires drat we withhold 20 percent of all money due you, which must then be forwarded to the IRS. The "insured name" on your insurance certificate must match ate name on the documents above and the W-9. All checks will be made payable to the name on the above No insurance certificate will be acceptd as valid that reflects a different name from the one on * eabove-described documents. d..r ~ l-zT-~~ Si~lature of Trade Contractor Date Sep 28 07 O2:59p Heirloom Cabinetry 7174362093 p.l VE~tIFTCATION Theodore Wagner, 7r., President of Heizloom Cabinetry of Pennsylvania, Inc., deposes and says, subject to the penalties of IS Pa. C.S. § 4904 relating to uns-worn falsification to authozities, that he is the President of Heirloom Cabinetry of Pennsylvania, inc., that he makes this vrsifieation by its authority and that the facts sEt forth in the Complaint are true and correct to the best of his/her l~owledge, information and belief. Z- ~' c~ -? Date ~r ~ ~~~_ ., . Theodore ~. Wagner, Jz., Presi L Heirloom Cabinetry of Pennsylvania, Tnc. 9 CERTIFICATE OF SERVICE e` ~,,,~; I hereby certify that on this ~ day of /1_, 2007, a true and correct copy of the foregoing Complaint was served by means of United States mail, first class, postage prepaid, upon the following: W. Datxen Powell, Esq. Corey J. Adamson, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 99 Harrisburg, PA 17108-0999 ~~ CUSTER DESIGN : IN THE COURT OF COMMON PLEAS OF GROUP, INC., for the :CUMBERLAND COUNTY, PENNSYLVANIA benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC., and HEIRLOOM :CIVIL ACTION--LAW CABINETRY OF PENNSYLVANIA, INC., Plaintiffs v. LaIvIARCO CONTRACTING, INC., Defendant : N0.06-4482 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' AMENDED COMPLAINT BEFORE OLER, GUIDO and EBERT, JJ. OPINION and ORDER OF COURT OLER, J., June 21, 2007. For disposition in this civil case are preliminary objections to an amended complaint. The complaint, involving the construction of a house, arises out of an allegedly deficient installation of an HVAC system by the defendant, a subcontractor. The preliminary objections were argued before an en Banc court on May 16, 2007. For the reasons stated in this opinion, the preliminary objections will be sustained in part and denied in part. STATEMENT OF FACTS The present action was commenced on August 4, 2006, by the filing of a complaint bearing the caption "Custer Design Group, Inc., for the benefit of Heirloom Cabinetry of Pennsylvania, Inc., Plaintiff v. LaMarco Contracting, Inc., EXHIBIT .r , Defendant."~ Pursuant to leave of court,Z an amended complaint was filed on February 6, 2007, bearing the caption "Custer Design Group, Inc., for the benefit of Heirloom Cabinetry of Pennsylvania, Inc., and Heirloom Cabinetry of Pennsylvania, Inc., Plaintiffs v. LaMarco Contracting, Inc., Defendant." 3 The allegations of Plaintiffs' amended complaint may be summarized as follows: Plaintiff Custer Design Group, Inc., is a Pennsylvania business corporation having offices in Harrisburg, Dauphin County, Pennsylvania, with its principal business being that of a general contractor in the construction of residential homes. Plaintiff Heirloom Cabinetry of Pennsylvania, Inc., is a Pennsylvania business corporation having offices in Mifflintown, Juniata County, Pennsylvania, with its principal business being that of a fabricator and installer of wood cabinetry and fabricator of wood furniture.5 Defendant, LaMarco Contracting, Inc., is a Pennsylvania business corporation having offices in Harrisburg, Dauphin County, Pennsylvania, with its business being that of an HVAC contractor.6 At some point in time, a certain third party contracted with Plaintiff Custer Design Group, Inc., to construct a house on realty owned by the third party in Mechanicsburg, Cumberland County, Pennsylvania. Thereafter, in October of 2003, Plaintiff Custer Design Group, Inc., engaged Plaintiff Heirloom Cabinetry of Pennsylvania, Inc., as a subcontractor on the project to fabricate and install cabinetry, paneling, and other wood products.8 ~ Plaintiffs Complaint, filed August 4, 2006. Z Order of Court, February 1, 2007 (Guido, J.). s Plaintiffs' Amended Complaint, filed February 6, 2007. a Plaintiffs' Amended Complaint, para. 1. s Plaintiffs' Amended Complaint, para. 2. 6 Plaintiffs' Amended Complaint, para. 3. 'Plaintiffs' Amended Complaint, para. 4. e Plaintiffs' Amended Complaint, para. 5 and Ex. A. 2 1 , . . At some point in time, a corporation known as Custer Homes, Inc. (which Plaintiffs now concede is an entity different from named Plaintiff Custer Design Group, Inc.9) engaged Defendant Lalvlarco Contracting, Inc., as a subcontractor on the project to install an HVAC system.10 This installation, completed in October of 2003,' ~ was improperly performed.12 In particular, Defendant "fail[ed] to install an appropriate overflow condensation pan or drain for the humidifier which was suspended above the dining room ceiling."13 Ceiling, wall and floor damage, as well as damage to cabinetry and furniture, resulted from water and/or high humidity attributable to Defendant's improper installation.14 As a consequence of the foregoing, Plaintiffs have incurred various expenses in repairing and replacing items in the house.15 Plaintiffs' Amended Complaint consists of a breach of contract claim by Plaintiff Custer Design Group, Inc., brought on its own behalf and "for the benefit of Heirloom Cabinetry of Pennsylvania, Inc.,"16 and a negligence claim by Plaintiff Heirloom Cabinetry of Pennsylvania, Inc.,' against Defendant LaMarco Contracting, Inc. Each count alleges that Defendant's actions "were wanton, outrageous and reckless, thereby justifying an award of punitive damages and attorneys' fees."18 9 Plaintiffs' [sic] Brief in Opposition to Defendant LaMarco Contracting, Inc.'s Preliminary Objections to Plain±iffs' Amended Complaint, at 4-5; Plaintiffs' counsel also conceded this point at oral argument. 10 Plaintiffs' Amended Complaint, para. 6 and Ex. B. " Plaintiffs' Amended Complaint, para. 7. 1z Plaintiffs' Amended Complaint, para. 10. i3 Plaintiffs' Amended Complaint, para. 10. 14 Plaintiffs' Amended Complaint, paras. 11-22. 15 Plaintiffs' Amended Complaint, paras. 20-26. 'b Plaintiffs' Amended Complaint, paras. 30-34. "Plaintiffs' Amended Complaint, paras. 35-38. 18 Plaintiffs' Amended Complaint, paras. 34, 38. 3 ,' Paragraph 9 of Plaintiffs' Amended Complaint alleges that Defendant "owed a general duty to install the HVAC system ... in a workmanlike manner." Paragraph 10 of Plaintiffs' Amended Complaint alleges, without further specification, that the impropriety of Defendant in the installation "was not limited to" the failure to install the appropriate overflow condensation pan or drain for the humidifier. Paragraphs 9, 32-33 and 36-37 allege, without further specification, that Defendant failed to comply with "industry standards and practices and ...applicable building codes." Paragraph 23 alleges that Defendant's insurance company reimbursed Plaintiff Custer Design Group, Inc., for certain costs relating to Defendant's performance. Paragraph 28 alleges that the same insurance company refused to reimburse Plaintiff Heirloom Cabinetry of Pennsylvania, Inc., for its costs in replacing cabinetry and furniture. Defendant's preliminary objections to the amended complaint consist of the following: (1) a demurrer to the contract claim of Plaintiff Custer Design Group, Inc., to the extent that the claim is asserted on its own behalf, due to a Lack of privity with Defendant;19 (2) a demurrer to the contract claim of Plaintiff Custer Design Group, Inc., to the extent that the claim is asserted on its own behalf, due to its admission that (some of) its loss had been paid by Defendant's insurer; (3) a demurrer to the contract claim of Plaintiff Custer Design Group, Inc., to the extent that the claim is asserted en behalf of Heirloom Cabinetry of Pennsylvania, Inc.. due to a lack of standing;20 (4) a demurrer to the negligence claim of Heirloom Cabinetry of Pennsylvania, Inc., due to the expiration of the statute of limitations; (5) a motion to strike Plaintiffs' claims for punitive damages, due to the inappropriateness of such relief on a contract claim and an absence of a factual i9 Defendant LaMarco Contracting, Inc.'s Preliminary Objections to Plaintiffs' Amended Complaint, para. 15. 20 Defendant LaMarco Contracting, Inc.'s Preliminary Objections to Plaintiffs' Amended Complaint, para. 12. 4 ' a . . basis for such damages as to either claim;21 (6) a motion to strike Plaintiffs' claims for attorney's fees, due to the lack of a legal basis for such relief;22 (7) a motion to strike references to insurance, due to their scandalous and impertinent nature;23 (8) a motion to strike the "was not limited to" language of the complaint, due its unlimited scope; (9) a motion to strike the allegation of unworkmanlike performance, due to its generality; and (10) a motion to strike allegations of unspecified violations of industry standards, industry practices and building codes, due to their generality. These objections will be discussed seriatim in the balance of this opinion. DISCUSSION Demurrer to contract claim of Plaintif~j`'Custer Design Group, Inc., brought on its own behalf, due to lack of privity. As a general rule, a breach of contract claim can not be sustained in the absence of privity between the plaintiff and defendant. See Farabaugh v. Pennsylvania Turnpike Commission, 590 Pa. 4b, 911 A.2d 1264 (2006). The facts alleged in the present case do not implicate an exception to this general rule, and accordingly Defendant's demurrer to the contract claim of Plaintiff Custer Design Group, Inc., brought on its own behalf will be granted. Demurrer to contract claim of Plaintiff Custer Design Group, Inc., due to its admission that some of its loss had been paid. "There is no such thing as a `partial' demurrer-a demurrer to a part only of plaintiff's claim." Snyder v. Munroe, 1 Adams L.J. 129, 137, 27 Pa. D. & C.2d 32, 42 (1960) (citations omitted). In the present case, although Plaintiff Custer Design Group, Inc., indicates that some of its losses have been paid, it does not concede that full 21 Defendant LaMarco Complaint, para. 20. Zz Defendant LaMarco Complaint, para. 20. z3 Defendant LaMarco Complaint, paras. 28-29, Contracting, Inc.'s Preliminary Objections to Plaintiffs' Amended Contracting, Inc.'s Preliminary Objections to Plaintiffs' Amended Contracting, Inc.'s Preliminary Objections to Plaintiffs' Amended 31. 5 compensation has been received. Accordingly, it would be inappropriate to grant a demurrer to the contract claim on the theory that Plaintiff has been partially compensated for Defendant's alleged breach. Demurrer to contract claim of Plaintiff Custom Design Group, Inc., brought `for the benefit of ' Heirloom Cabinetry of Pennsylvania, Inc., due to lack of standing. As a general rule, to have standing to bring a suit a party must show "a direct and substantial interest [and] a sufficiently close causal connection between the challenged action and the asserted injury to qualify the interest as `immediate' rather than `remote'." Allegheny County v. Monzo, 509 Pa. 26, 33-34, 500 A.2d 1096, 1100 (1985) (citations omitted); see Pa. R.C.P. 2002 (prosecution of actions by real parties in interest; exceptions). An arrangement whereby one person or entity, not the real party in interest, pursues the claim of the real party in interest, is frequently considered champertous and legally uncognizable. Clark v. Cambria County Board of Assessment Appeals, 747 A.2d 1242, 1246 (Pa. Commw. Ct. 2000). No exception being evident in the present case to the general rule that a claim may not be prosecuted by a person or entity other than the real party in interest, Defendant's demurrer to the contract claim of Plaintiff Custom Design Group, Inc., filed "for the benefit of ' Heirloom Cabinetry of Pennsylvania, Inc., will be granted. Demurrer to negligence claim of Plainti,,~f Heirloom Cabinetry of Pennsylvania, Inc., due to expiration of statute of limitations. The statute of limitations for negligence actions of the present type would appear to be two years. Act of July 9, 1976, P.L. 586, §2, 42 Pa. C.S. §5524. In general, astatute- of-limitations defense is to be raised in new matter at the time an answer is filed, rather than by preliminary objection. Pa. R.C.P. 1030; Cohen v. Mirin, 1999 Pa. Super. 103, ¶8, 729 A.2d 1236, 1238 (1999). An exception to this rule applies, at least in the absence of a preliminary objection to the preliminary objection, where the expiration of the limitations period prior to the commencement of suit is 6 evident from the complaint itself. See Davis v. Commonwealth, 660 A.2d 157, 159 n.2 (Pa. Commw. Ct. 1995). In certain types of cases, under the "discovery" rule a statutory limitations period will not be deemed to have begun to run prior to the time that the plaintiff knew, or should reasonably have known, (1) that he or she has been damaged and (2) that the damage was caused by another's conduct. Redenz v. Duquesne Light Co., 341 Pa. Super. 329, 331-32, 491 A.2d 84 1, 842 (1985). In the present case, it is not clear from the face of Plaintiffs' complaint that the statute of limitations as to the negligence claim had run prior to the commencement of suit. For this reason, Defendant's demurrer to the negligence claim based upon the statute of limitations will not be granted. Motion to strike punitive damage claims. Punitive damages are rarely recoverable on a claim for breach of contract. The Flynn Co. v. Peerless Door & Glass, Inc., 2002 WL 1018937 (Philadelphia Co. 2002). In addition, a court may award punitive damages in an action only where the described conduct was "committed willfully, maliciously, or so carelessly as to indicate wanton disregard of the rights of the party injured." G.J.D. v. Johnson, 552 Pa. 169, 172, 713 A.2d 1127, 1 129 (1998). When a party demands punitive damages, courts have found "no fault in utilizing words such as wanton, reckless, willful and intentional; however, to support an award of punitive damages the pleadings must state in what manner defendant[']s conduct was egregious and[/or] intentional." Da•: is v. Clear Lake Lumber, Inc., 6 Pa. D. & C.4th 67, 73 (Warren Co. 1989); see Van Ingen v. Wentz, 70 Pa. D. & C.2d 555 (Monroe Co. 1975). In the present case, the law would not support a recovery for punitive damages with respect to any contractual claim made, nor do the allegations of the complaint provide any factual basis for a conclusion that Defendant's conduct was malicious, wanton, reckless, willful or oppressive. Plaintiffs' claims for punitive damages therefore can not survive a motion to strike. 7 Motion to strike attorney's fees claims. As a general rule, attorney's fees will not be awarded unless there is an applicable statute, contractual agreement or other established exception that allows such recovery from the adverse party. Commonwealth, Department of Transportation v. Smith, 145 Pa. Commw. 164, 168, 602 A.2d 499, 501 (1992). No facts implicating an exception to the general rule have been pled in this case, and Plaintiffs' claims for attorney's fees can not be sustained. Motion to strike references to insurance. In order for an allegation to be deemed scandalous and impertinent, the allegation must be immaterial and inappropriate to the proof of the cause of action. Department of Environmental Resources v. Peggs Run Coal Co., 55 Pa. Commw. 312, 320, 423 A.2d 765, 769 (1980). "Reference to insurance coverage when the issue is negligence would be prejudicial" and impertinent, "and must be stricken." Berkebile v. Nationwide Ins. Co., 6 Pa. D. & C.3d 243, 249 (Somerset Co. 1977). Plaintiff s references to Defendant's insurance coverage are similarly immaterial and inappropriate and will be stricken. Motion to strike "was not limited to " language. In Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), the Pennsylvania Supreme Court held that the use of the language "otherwise failing to use due care and caution under the circumstances" enabled the plaintiff to amend the complaint to specify "the other ways in which [the defendant] was negligent in [that) case." Id. at 310, 461 A.2d at 602. The Court elaborated on this holding by noting that "[i]f [defendant] did not know how it `otherwise fail[ed] to use due care and caution under the circumstances,' it could have filed a preliminary objection in the nature of a request for a more specif c pleading or it could have moved. to strike that portion of [the plaintiff's] complaint." Id. at 311 n.3, 461 A.2d at 602 n.3. This precept in Connor has been applied to language of the "including but not limited to" type. Habig v. Spencer, No. 3089 Civil 1992 (Cumberland Co. January 26, 1993); Wiest v. L & B Poultry, 112 Dauphin Co. 144 (1992). In 8 accordance with the foregoing, the "was not limited to" language of Plaintiff s complaint will be stricken. Motion to strike reference to "unworkmanlike manner" of performance. The contention that construction work on a house was not performed in a reasonably workmanlike manner is common to litigation on the subject,Z~ and does not appear to the court to be susceptible to a challenge on grounds of an absence of specificity. The lack of generality of the term is suggested by the following language of the Superior Court: This action to recover the balance due on a contract for the installation of storm windows on defendant's premises is defended on the ground that plaintiff failed to perform the work in accordance with the contract. In more specific terms, the defense is that the work was not done in a good and workmanlike manner. Mort Co. v. Paul, 167 Pa. Super. 532, 533, 76 A.2d 445, 446 {1950) {emphasis added}. Accordingly, Defendant's motion to strike in this regard will not be granted. Motion to strike references to unspecified violations of industry standards, industry practices and building codes. "The Commonwealth of Pennsylvania is a fact pleading state whereby the complaint must provide the defendant notice of the basis of the claim as well as a summary of the facts essential support that claim." Latniak v. Von Koch, 70 Pa. D. & C.4th 489, 494 (Lackawanna Co. 2004). To determine if a pleading meets Pennsylvania's specificity requirements, a court must ascertain whether the facts alleged are "sufficiently speci is so as to enable [a] defendant to prepare [its] defense." Smith v. Wagner, 403 Pa. Super. 316, 319, 588 A.2d 1308, 1310 (1991) (citation omitted); see also In re The Barnes Foundation, 443 Pa. Super. 369, 381, 661 A.2d 889, 895 (1995). In a worker's compensation case, it has been held that an allegation that a defendant "operat[ed its] plant in violation of the Statutes of the Commonwealth of Pennsylvania and regulations of the Department of Labor and Industry Za See, e.g., Edlerkin v. Garter, 447 Pa. 118, 288 A.2d 771 (1972}. 9 4 ~ ~ • y pertaining to safety of employees thereon" was insufficiently specific to enable the defendant to prepare its defense. Cherneskie v. Bethlehem Steel Corp., 70 Pa. D. & C.2d 605, 612 (Philadelphia Co. 1974). In the present case, Plaintiffs' allegations that Defendant failed to comply with unspecified "industry standards and practices and ...applicable building codes" are similarly deficient. Based upon the foregoing, the following order will be entered: ORDER OF COURT AND NOW, this 21S` day of June, 2007, upon consideration of Defendant's preliminary objections to Plaintiffs' amended complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows with respect to Plaintiffs' Amended Complaint: 1. Count 1 (contract claim of Plaintiff Custom Design Group, Inc., and contract claim "for the benefit ofl' Plaintiff Heirloom Cabinetry of Pennsylvania, Inc.) is dismissed; 2. The demand for punitive damages is stricken; 3. The demand for attorney's fees is stricken; 4. References to Defendant's insurance coverage are stricken; 5. The words "was not limited to" are stricken; 6. Averments that Defendant failed to comply with "industry standards and practices and ... applicable building codes" will be deemed stricken without further order of court unless, within 20 days of the date of this order, a second amended complaint is filed which specifically identif es the same; 7. No other relief is granted with respect to Defendant's preliminary objections. 10 BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Thomas J. Nehilla, Esq. Jennifer Zimmerman, Esq. One South Market Square P.O. Box 1146 Harrisburg, PA 1710$-1146 Attorneys for Plaintiffs W. Darren Powell, Esq. Corey J. Adamson, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17101 Attorneys far Defendants ~~ r ~~ ~ fir, ~ ~~~hh~~aAto j{s~~~~~~t~t ~: ~ ~ ~ s~Z f 11 Thomas J. Nehilla, Esquire Attorney I.D. No. 67326 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 BROADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Platnti~" HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v CNIL ACTION -LAW NO. 06-4482 Civil LAMARCO CONTRACTING, INC. Defendant JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice aze 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 YOU CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 64689HA EXHIBIT ~ G AVISO USTED HA SIDE DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mss adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demands y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falls de tomar accion Como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier soma de dinero reclamada en la demands o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes pars usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARR AVERIGUAR DONDE PUEDE ENCONTR.AR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Thomas J. Nehilla, Esquire Attorney I.D. No. 67326 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 BROADS & SINON LLP One south Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaint HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiff ' v. , LAMARCO CONTRACTING, INC. . Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO.06-4482 Civil JURY TRIAL DEMANDED SECOND AMENDED COMPLAINT NOW COMES, Heirloom Cabinetry of Pennsylvania, Inc. by its attorneys, Rhoads & Sinon LLP, and hereby submits the within Second Amended Complaint against LaMarco Contracting, Inc., and avers as follows: 1. Heirloom Cabinetry of Pennsylvania, Inc. ("Heirloom") is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania having an address of RR 4 Box 390, Nelson Road, Mifflintown, Pennsylvania 17059. Heirloom's principal business is constructing and installing wood cabinetry as well as constructing wood furniture. 2. LaMarco Contracting, Inc. ("LaMarco" or "Defendant"), upon information and belief, is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania and has a registered address of 130 Hillymede Circle, Harrisburg, PA 17111. LaMarco is an HVAC contractor. 3. Custer Homes, Inc. ("Custer Homes") and Custer Design Group, Inc. ("Custer Design") (collectively referred to as "Custer") are Pennsylvania business corporations incorporated under the laws of the Commonwealth of Pennsylvania having an address of 2805 Old Post Road, Harrisburg, Pennsylvania 17110. Ouster's principal business is serving as a general contractor constructing residential homes. 4. Steven Neiman, owner of property located at 3 Springdale Way, Mechanicsburg, Cumberland County, Pennsylvania ("Neiman"), contracted with Custer, as General Contractor, for the construction of a residence on his property located at 3 Springdale Way ("Neiman Residence"). 5. Custer Design entered into a Supplemental Trade Contractor Agreement on or about October 2003 with Heirloom ("Heirloom Subcontract") for the construction and installation of cherry and pear wood cabinetry and paneling in dining room, family room, office, master bedroom and master bathroom in the Neiman Residence ("Heirloom Cabinetry"). Heirloom also constructed several pieces of wood furniture for the Neiman Residence, including, but not limited to, an entertainment center, a bed, a desk, and a dining room suite ("Heirloom Furniture"). A true and correct copy of the Heirloom Subcontract is attached hereto as Exhibit "A" and incorporated herein by reference. 6. Custer Homes, through purchase orders, subcontracted with LaMarco for the installation of the HVAC system in the Neiman Residence and the purchase orders were subject to Supplemental Trade Contractor Agreements (collectively referred to as "LaMarco Subcontract"). A true and correct copy of the LaMarco Subcontract is attached hereto as Exhibit "B" and incorporated herein by reference. 7. LaMarco installed an HVAC system in the Neiman Residence on or around October 2003, by suspending part of the system above the ceiling in the dining room. 8. LaMarco owed a general duty to install the HVAC system in the Neiman Residence in a workmanlike manner and in accordance with Sections M1411.3, M1411.3.1 and M1141.3.2 of the International Residential Code® for One-And Two- Family Dwellings, 2003 Edition and Section 307.2 and 307.2.1-307.2.4 of the 2003 International Mechanical Code which require the installation of an auxiliary drain system where condensation may occur and where damage may occur from overflow from the drain pan. 9. During the initial installation of the HVAC system, LaMarco failed to properly install the HVAC system in the Neiman Residence. The improper installation included the failure to install an appropriate overflow condensation pan or drain for the humidifier which was suspended above the dining room ceiling. 10. On or around October 2003, and as a direct result of LaMarco's failure to install the appropriate condensation pan, water dripped and accumulated directly on the ceiling frame above the dining room which caused water marks on the ceiling and water to leak through the ceiling and stream down the sides of the walls onto the dining room floor. 11. Additionally, water dripped down the inside of the dining room walls and accumulated under the hardwood floors throughout the house which caused the hardwood floor to buckle and cup and the cabinetry in the family room, the master bedroom and bathroom as well as the dining room table and office desktop to crack. 12. Within a short period of time after the above-mentioned cupping and cracking were first noticed, water started dripping from the dining room ceiling. 13. At that time, the wood flooring subcontractor, Restorations Unlimited, tested the humidity levels throughout the entire house, and specifically where the Heirloom Cabinetry and hardwood flooring were located in the dining room, family room, office, master bedroom and master bathroom. 14. After the water leakage occurred, the humidity levels in the Neiman Residence were, at times, extremely high, and at times, below normal. The humidity levels were at such an abnormal level throughout the house that it damaged the hardwood floors and permanently damaged the Heirloom wood used to construct the Heirloom Cabinetry and the Heirloom Furniture. 15. The humidity levels were abnormal for at least three to four weeks because it took a significant amount of time to remove the excess humidity from the air and the wood flooring after the dining room leaks. 16. At no time did Custer, nor any of its officers, directors, agents or employees, direct LaMarco to alter or maintain the level of moisture in any manner in the Neiman Residence. 17. Due to the abnormal humidity levels, the damage to the maple hardwood floor and the Heirloom wood occurred throughout the entire house, not just in the dining room where the water problems occurred. 18. The cabinetry and furniture installed and constructed by Heirloom permanently cracked and suffered water damage as a result of the abnormal humidity levels and the water leakage that occurred due to LaMarco's improper installation of the HVAC system. 19. Due to the damage to the Heirloom Cabinetry and Heirloom Furniture, Heirloom had to completely replace the bathroom, bedroom and office cabinetry at a total cost to Heirloom of $34,558.00. 20. In addition to the wood damage, as a direct result of the water leakage and the abnormal humidity levels, the drywall, which was installed by Custer, cracked in the areas of the house where the Heirloom Cabinetry was located. 21. Custer replaced much of the damaged drywall in the rooms where the Heirloom Cabinetry was located due to significant cracking. Custer also repainted the affected areas, replaced a large portion of the laundry room floor, and replaced the dining room ceiling which were all damaged as a result of the water leaks. 22. The entire heating and air conditioning system, installed by LaMarco, including the humidifier system, is being reengineered and rebuilt by a new HVAC subcontractor because the system never worked properly due to LaMarco's improper installation. 23. In addition, the new HVAC subcontractor installed a pipe to drain the system, which LaMarco failed to install. 24. Heirloom completed the replacement of the family room cabinetry in June 2005. 25. There have not been any problems with cracking in the furniture and cabinetry since it was replaced by Heirloom, after the humidity and water problems were resolved. 26. Based upon the fact that there have not been any problems with cracking in the furniture and cabinetry since it was replaced by Heirloom, it now has become evident that the damages Heirloom sustained are a result of LaMarco's failure to exercise reasonable care in installing the HVAC system. COUNT I -NEGLIGENCE 27. The foregoing paragraphs are incorporated herein by reference as if set forth here at length. 28. LaMarco owed a duty to construct the Neiman Residence in accordance with Sections M1411.3, M1411.3.1 and M1141.3.2 of the International Residential Code® for One-And Two-Family Dwellings, 2003 Edition and Section 307.2 of the 2003 International Mechanical Code which require the installation of an auxiliary drain system where condensation may occur and where damage may occur from overflow from the drain pan. 29. LaMarco's failure to properly install the HVAC system in accordance with the Sections M1411.3, M1411.3.1 and M1141.3.2 of the International Residential Code® for One-And Two-Family Dwellings, 2003 Edition and Section 307.2 of the 2003 International Mechanical Code and in a manner that the system did not leak was a breach of these duties and directly resulted in damages to Heirloom as alleged herein. WHEREFORE, Plaintiff, Heirloom Cabinetry of Pennsylvania, Inc. respectfully requests this Court to enter judgment in favor of Plaintiff and against Defendant LaMarco Contracting, Inc., in the amount of $34,558.00. Respectfully submitted, BROADS & SINON LLP DATED: July ~ 1 , 2007 By: omas J. N 'lla PA I.D. No. 67326 Jennifer Zimmerman PA I.D. No. 89459 P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff . oT-~io~~? :.i::,?~~Fns zt?2~,s?so ~oAns s~~~o~ti . _ t~) V UL ~~~~'~ T'~zcadore W~.g~ee:, Jr., F'residcnt. of Zi;~.ria?rya Cgbinctry of Pennsyi~~~xy"ta, Inc_> Ctepaecs ,;nd says, st~j~ct to th~:: t.lties of 1 f~ F'a. C',S. ~ 49G4 r°~J.ating •to unswoxri fAL~i,ficati~ tc a~sih<iritzes, t~ xt he is the p: eeidaz1t of Heirloom Cabiuciry of Pe=ins~~lvaxtia, Inc., ik~at he make,. this vrx:Soatio:n, ley t;. uutlintit; and tY~at :lae facts set fa_x.~, i~ the Co~plaitat ar9 true errui correct to tiie ly~,st of" lzis/lzer knowledge, inf'~rc~tio~- az~d belief; i~ ~ D ~, ~, ~/u ~~ syodc::c E. '~'Jagrzer, rr., Pres ent Hurl<~cz-~. Ct1~;A,~txy of Pen.~syl~;a,;ua, ~~ Td WdLO : Z8 LaOZ 0ti ' t of ~60Z9~t~~ZL 'CIhJ ~NOHd A~ ~ a~ raN-, ~.inn~~ r~i ~ ~ ~~„~ _0r;3/ZcE~3 .3; 3b 11 ''1j::b''"`~ LUaith; ~~r rri,~G ~~ Gu~~er Dcsi gxa Gxoup, ~n.c. $liTTLE'v1E.~T'I'AL TR,'~DL CC?NI7LiC,TnR AG'~tGr'rfF:NT 7r~rd' Canlracxnrr~rs~rt~rn:r.'dc c crrr~~ C.E 'zcat~~ G~'l~uu~ar~~~, -~~x~,,,. CuBtcx 1"3~:si~ rr u~ L+~c.~ ar rbe Carri, fiea~ Holder, ~3~~ Gerta~sea~ ~ru~t ne ot+,f~~,,~'n; ~n ra? ara ~~jcrc~ ~C7~iNlEYld: ..~../1 T. rvni.~.r ar~x: t ~e Lam: red :o Custer D~e~i~~at~~, inc:., ?c~4~ Olc ?n, t Roa*d .5'ui~ :OG. r ?,~r,ir tvrfr~, P.l~ 1 T 110. Tho p:rti~ co Ibis Constcucticrn ~~grcGmcet asc ~SSS*l',~pp5~~~1~;`+ mac., "~3uildc:." :end ~~~.~Ll~~t f'~NGI~F.L.fJ.~ ° "'~~d.= CgA'~ctur." ~~~. This ,.~,~cam~n.t rh~.ll ~ov~: a111ah+oz pezfoa~.ted ~d ma:enz.i fug-niched by Tradc Con;~crac fox $ux~drx uaal either pang revokes tL ~ delsvcan." c~:>;rrca unaee cif each rcvucarion to the athez patiip. If e.ith.~ parcp rrcoites r~tis a,,gze~mc.~t,1x ~~iaal% be nu~i and void `or all coztccacu eaTered into ~ereaftrs. Trade Coa~.erc~x ~£`: T'h p erfozrn a!J tivozk xa a ~vor~tnat:7i1~ mauacr; ~aad Tc Beaver ~taterizls which axc m~ and is accocdaacc vrith nc~ plans acid Epecfcations drli4e.-ed to Trade Gortssctcu~ ~?p~.n rec~:i~iag noti== fxt~rn Fuilo~c that ""::'sa.dE C411tL'~tCTG]r has pccfaaacd iarciiot, improper.? Qt cl:zsoettd L'1~QT. Oz d:L'veYGd II1~tf.33.•lLS aL T'";n^r=e w1tI,1 arlueh ~6 6~~eei,tia,3, ;;x3dt Contzactoz Wi1I, ~ithiti tc~veat-~-£olxr X24) izo~, pzviceed to reT~.O~E 6uc11 w0~5 Crs rnarea,Als sad 1s3SikC ~*c+Od all ot~cr ~•ork ~~z mstezials damaged ~Chereby. T,.3de Cvaan.cmr sh~Il not subcaatra=z any parr of tF:c •vark a-3xl~AUt +lzE pxivt w-rittaa cons=nc of b~:ilder, sad such eoa:s~t ahal'i aoi ze:enae ~'za.3e Coatrz~:tor fi-om any zcsporisibilitp to liabiktp in wt~.ccrian ~ztb, the subcoa~rn.cc ?. Ie :s mutuai'?y u~aderatoad and. agreed betw~u bolder and Txadc Corstsacto;, tba; Trade C+nnG~actox i.e ar_ zc~dependent contractox; thRt mt taQ ttma asc am o•F TSa.dc Contractor's cmplopecg in tlac er~ylny of T,iuitdrx, ~nr. is $tzijdez xcspcaailiic co ~,p.p of 1 rad= Co~.oactoL's easplnyc~a for th.e p3y~-r,Gt a£ their ~.ges; chat TradC CtKatrattvc alone ~~ responsible for =omlp3is+.uce ~~ ill as;-licsblc sntutcs, ot~inanccs, sad rL~t113QC7r1.S GCTIGG~U.19,g px9 4~~OgCG°s Social SCLZ,'Iity,. ~~~osk*sa~s:'S Crxrtpenaation, sad s11 tiafesp cQmditiora and cord lscapiug zcc~uit.~nncr:tj Winder 'C)zc Occapaciori=1,, ~aferv grad T~ea..lth A,et of 1970 and arsiendmctxtx rh~'Gta, Stace aIId Federal ~atian. and liceitsivg. Trnde Coasu.ctor el~.a11 maintain, at 1~ v~vn expense, Such til5uLaace za ~-i11 protect l.im from .FVtktnca'F ccmpcnsrtion acts and ~*ans o~hex cla.im.5 sad c:~.mages L"oz per~r~nli ir_-jLr;;, includip.g d~~h, in di= r.~,.vs~um ;~rooutat of $5~7U,r00.00, wiv.cia may arise f,:om opr~atilons trader d~;:s ~~nrsacc., a~he:~Zrs such c~perataors he by chc Trad.c Contr~=tor a= icy ~i cthc= ~aadc cont.ac.ozs oz ius mPioycs b;r 1s~t~nc clttect'y oz iad:rrcrl.y c~lt~cd by a:irher rf f~,iem.. Tsa,:lc . ~a1zac:tor i~e:reln! a~YrceR tv ir~deuxnt~ and 7olci h1~.teFS wilder £razzy azy r1~,i~.ti mn3Cd yi Q1 w,i;~b. respect to tb,c matterv oudiaed ;n the pzragra{~h. ~+ copy of '~',tade Cosat~ctor's Certi~acate o= Iasv: once mcvst be acjspxc~d 3xi ~niing bs' Cu.stez Design Group, Tsie_ at Icayt tkrac (3) daps poor tv cornmen,cemeat ~~£ wor'.~c by Trade CuntravtvT. 3. Track Contraztox a~,*rccs to lsay for all ttaatta:ials arzd au .Libor supplied by 7radc Cr~s~~cros Eox the job When au~ grid to hold Builder artd the owner }atirrcaleao {rorr~ au~r liens azi~ing out of Libor, mate¢als, ar subconaacts fumiahed lay Trade ContrsctDr, Bu~dr;t shall }.rave the sight to require Trad,c Cozttractor ro pzeQide rc3~..~ca by atI peasoas supplying labor, maxc~l~, ar Kcrviccs to '~`za.de Coatracto= for tie job herein desenbcd and Co withhold final, ~>ayment until auc$ releases are supplied. Tr,~de CoAZ=zctfls aclrAOmledgrrs rh-t it is as iad~pcs~d~tt coz~t~.ctor and agrees to pay- all con~buo,oas zecluised b9 Saw as cv~t.Cact ~hic'a if unpaid could be azz C2]Cllfflb=2.nCG L1p011 tlaC rnal+pre)p~ty a-l~exe d7.e waxit s pe~-sbxm~d. ~. Trade Cc+ntmccat agrees to peaxtit ath~r Trade ConttzctozE teccaor~able opponvnitq fez Fzoxage a£ materials and esecudon q£ rhaz t+*o,rl,; anti sha12 properly coordinate iix work wirli nc~irs, If ~.zy part Qfrhe work to be pex~o=med by Trade Contrnctoc depenclBT far prcagccr meccution, an the wozk of other txP.de cositzactors or 3uilde: o„ tcac cswaczz, Trads Cvsxtzactoz 6hal] immediate3y rrport conflicts, de:CGtr vz azntasion,s tila.t zesidcr Fuck othu work untimely or uasuit;3bf.~ fox ~:ccentXOL1 of lta worltr Ptoceadisag with irs work witl~.eut luck rsptsxt of deftctt~ is and aozepuiace by T=edc C:onaactor of Sue wozlc of othc~ that p=vccdos;. ax xs pe,-.£eroud aisuutraaeously ~h, its morl;, Should Trade Contractoz datnurc Work o£ ot1;-Gr tradt consractors or Buitcter, Tt-adc Coatxat-ror Ahall pap the coat o£ repairing such damage and held Builder sad owner 'tssttxnleea~ Trade Cos~t=actot sg~ccs that he wilt not hold Eu~.dct iospoass'blc for lase or. damage or injury caused 11y anothci trade cotttractos azzd ftuthcr agrcca to look to said tzadc costuador fir the rccrn*c~ £roa~ it of any such damage or injury- 5. Txaslc Coatzactor abaIl procure sad pap all u~cex~aazg geraszts required fnz pt:~otmaa,ce lay Trade Contraetvs-s>adcx thin s~Feemcat whiela axe abrai»able by 'Trade Coruxsc,tor andwill pratcet uzl5aished wnsk and ail materials fax Trade Coritxa.ctox's use, or iacidcural thcrato, a~aitsst e.~vaty' ~ d cif damage, uicludinp d,~azagc by rli.e ~.emazts, e:tccpe da,azagE by fire„ uza.til cc~mplction of th.e lluilding, G, Trade Gomtracoz agzres iv place dcbrls 1,t113uildrr's durrspstcr, unlr_sa iastxuczed ot}tcrwisc, rubbish and Waste r~satcxiala neared by iii Qperarivn as t}ie wozc progresses, in order to maint~ixi a cie~n, safe caaditian ~.ad, >zgosa completzcan of it~v work, to scinr3~o all foals, ec~.tigmczlt, ttsateCtals ar~,d arR=_ te. A.ll I.a.ddezR sze to be 1 ed and/or safely sror~d at the and of each d~24. 11~iy zubbis3z car waste ma~tesials not clean eci up azad pzopctly dispased of by Trstie Corltt~cros-arid result in a Uackchazgc. 7. `rTa.dc Conrsatctvr hrzeby uzicoaditionaSlp guat~atecs all his work, f4bot and matcsinls co Builder, anc tha owner .^.z pu:eisaser for nc~ pe~iod oE'Builder`s was;s~^t~ co the oaK:er pt ~•?.iC11c~,sCI, rawsad 4103 .C!/a?~LUVJ rVa JV ri ry,•LVa • ~~•~•~• -••--• Balder a~i.Cfi to G'li{7L2'o"lfis. t~1C work an•d coorduZatc tl1C ~orozlt of odzcr suppliers as3d trade ccmuactors to zttablc ~Trzlic Corstsaetor to pc:rfcmn its arosk timely and rfficdentlp, and ~3ui~,dez .igzees that 1z nri11 tns3ca •t1:ie pa~t~-ta requited hercurtdEr Prarrrptty ~h~ d~• 9. Buildcx agxces to pay promptly Track Ceateaet~~r in his pcsformsncc of his cvoxk and nrJ suer than 3Q dsrpa wxtban aubtmle:ttGt3. o~'~y ktlQaice, cc~nditi.croed upota ~eri~iccidon by 13nildar that tlae Work }zoo beets .•stisfacturily peLforsrsod If gsyruezzt is not rccelvcd tczthin da,ss geaod end Tmda COn=rac~°z d~~~ not r~c~sse no~.cation justif}~sig Chc day iu payment; Trade Contractoz may te~inatc dais .Agreement upon sc~vcm 7) dsya wz7tzcsl notice of hu+ iate~zt tv do sta. ?f Trade C.otitr_aetos does ao tcmtiu,atc ~allo~viug' said malice, he shall be eatttlod to r~teive the reasonable ~ali~c of aiI sn,st~rial~ and lflbor iaeo;,pc*rated is t$e job ro chi dme of zam~ination azid the profit Trade Contractor wou:d norzna7ly aspect to lia4c bcca made had the cnn~ct bcea fuD.y and pzoprsl4 pcrformedr lQ. If the T.~de Cvatractoz sha.II bocoma bt+s~krupc, make assibamenr far nc~ bcatfit of crcdttors, oL O~iC2W19C bccprne uaaale to c.'tsp out the work ar if tl~e Track Cor~¢aeeor, without prropez causes zciapve:s trrnn nc~ Sverk for a period in e.cceas of forty-ci~c (4~) Izou~, then nc~ Bnildcr ts~y, by untie in .~riag or verbal to rho 7radc Contractor, tczzainarc ;his !~eezzaeat i£' a~u is rant talccn to case sad. default ~vitlzirJ twentp-four t24) hatxrs after Bw1d~s ccmmuaic:atiatz of such notice. If Trade Coutxacmz5 shad iu a~ ma,aa~s utidttly dcL1y or orhestivisc neglect to ftuitih his responsi}s~ities, without bona fide cause, witlzira tic time hrsaiabcfasc Provided, or otherwise breach a.Ay pzorisxon of this ~ecm,ant; Builder mfr, by wiiTtc71 or vetbzl z~odce as herciubcforc pmvidcd, recluise ~e Trzzle Cvnes~.crc,r ro ptz7cead d~ztb. ~e worst witlvn rWCtlty-foctr (~4) nt~utx after cvn4epaace oi' such notice or cozzeeL nap such bleach of this A~*r~e:ar, wxr~ia tareaty_;Ei~ur (:4) hoax period a,ud upon failttte to do sa, the Bvildcr gbs~ t13e'o. hstive tl~e xig~+.t tR~ tesxxtirt~te this 1Lgreementi and to cmplay arty other, T.ra+de Co'utractor to coutinuN acid corapletc the said a ark accrasdittg m said pL~s and spccificaoous, ox any altrrarians ar zddidons as hereit~.befare pzoQic;,ed, and Shall also slave the light to aurhoa'•r such, replnceznent trada contractor to use anp ma.teriali- cxr psr~party o,f, the Tr~.de Gosttrs-rror upon the ground. Zf chc e~geasc xo complete the cosatau:t, in addition to astp papxnents made of the Track; Contractoz Ja,oteumdez, shall eacec~i the origis~,al suUcar~t~ct price plw costs for any addiritSnal wcrJS Tr.2de Coatz~ctox mall hG liabla to the Bui].dcr fo.t ouch ctccss sums. 11. T.nn the ewexit Trsdc Gorstrzctox diaco~v nap iu+:osldistcaacies or crro~ irl big ~srotlt with the $vildcr or other trade contxc~cters in the plus and 4per~icaria~:~, he sbaIl, before perfomiir~ said woz~, proraprly b~ stitch mattes to the attention of the Siuildcr vPho shall t}aaa ~,rre Trade Gontrseter ~rartcr~ i~~ta:+scti4AS or dircctians ~latio'c to raid ~,comeistracy ox esxox. A'~ clsiz~ss for ac.ditioasl compensation will. be cos~sid~zod and Tzacic Contractor ;~~all be emtitIcd to no such additional sums, uulcss lac s17.~11 have, if 0.e all posai'61c, bzought :he ~ucc,nsisteuc.y Gi erxpc to ~a ~3u~ldea's sttcaaon prior cr, pesfo~]mg any walk thc~con. i r. This .~greemcat and cverp conversant and psoe:sion heron shall bid, apply .o, and run in favor of the parG.eo, nc~is sueasaots is intczesr at~d their lcgai ropreser.t2tives. rev,:er. ¢~t73 1 ?. In construe r~ais Agseet~aesit, tEzc k~uildes ~,nd Tzade C~ontraeu~r r~.p be xnarE r,~.aa aAe persOS~; that if tht oonteat so rtquires, tho sl~~:?=T praaotm shill. be taken to mczn and itteiurie the plums, r't~e maneuliaq tic £arrixux~r, aad the ncut~; ttnd thzt ge~.~ra~7 ill gtamz~.adcnl. chaz~3es s~aall b~ tzaadr., sssFum~ed, and Xtr~plied to tnslce thm procisioas hrxeoz apply egt~Ilp to cvrparation: arld t~ ;~.dtvi.duals. Tr~.dc Cnnrratraz's Addz~.os: RR~I ,Qa.~ ~~e ~~N ~s~ m~~~-L~nr1~ vu~v, ~~ r7a~~ Bueiaas s Pl7anc; f 7 /7~ ~J~o - 809 ~,rnczgczzc9 P1iar~c: ~1 ~ ~ o ~~ " ~~S ~~.L,~ivF•SGr~, F~C~~~~i,~-a~~3 T~.d~ con~st~r'a redc~l ?~ ~: a3- a~~ ~.~ I _______ Lycr~rp~rarcd? ~yca ©uo ~y~1RLdalit ~B/Nf _ D~ ~~ .DYC, Priated Tade Caatxact~r Cozn~tav I~Iamc THED~D,~2~ ~. tNR~iVf.~ S'xanted Name of ?cads Cac-tr~.cret Aecc~ted and ~, rove ~ C"VGC• ~ ~d ~~ c PP S~tusc of Trade Co actor Da Gut~r.~x Des~u G=oup, Ir~c. _ SignltLu~: o~P,u~ldrs Buildez's Address: ?805 O:d Port 7~n~.d, Suits 2~~0 I-~arr<shur~, rA ~ ~ ~ i 0 Dusincss Phaz~e: r 1 i 2S2-G~? i xvtseC aJ03 Nomes, Inc. 5 old Post Road, Suite 200 rrisburg, PA '17110 ' ORDER DATE: ~2121~2003 VENDOR: JOB ADDRESS: JOB NUMBER: Lamarco Contracting lnc. Sterling Glen SG005 13D Hillymede Circle at Rt 114 8~ Woods Road fJ~,,,,,r,1 -\ Harrisburg PA 17111 Mechanicsburg PA 17050 ~ Project Manager Project Manager Phone: Ted Shaffer 648-5634 Page 1 PLEASE SUPPLY THE FOLLOWING ITEM ITEM DESCRIPTION LENGTHS QUANTITY UNIT UNIT PRICE ~~0~4D HEA"f'ING ""'"' - . 0020 HVAC as per quote dated Aug 7, ZD02 1.00 Lsum 9,495.00 Roughin - $5,697 Equipment Set - $2,849 Finish - $949 - Provide the Following: 95~OODBTU Fumace w.90+ efficiency 5 tons AC w/10 SEER rating, gas piping to W/H, Kitchen Range, Lenai ~;u ~l~zs ~ p Scuttle humidifier, Electrostaic Air Cleaner, programmable T-Stats. .. i '~; Fumace to be installed in the attic area. A seperate WO has been issued to vent the downdraft range Net Order Tax TOTAL ORDER IMPORTANT NOTICE -PLEASE READ P'Y ~ ~~~ inV.3tl6 3~~rc3 `This P.O. is subject to the terms of the Custer Homes "Trade Partner Agreement" ~~~1,1,~,~- *Payment shall be made on P.O. arPount or vendor Invoice, whichever is less. *Return Quality Inspection Report with Invoice. 2 d raw *Do not begin work unless these terms and conditions are acceptable ~~i inv. (oZtag ***'~*"`GHI will not honor additional charges NOT pre-authorized in writing by the Project Manager"'*~`**'' a~~ cLr~C c- Authorized Signature: ~.~ ~ . ~._ Custer Homes, Inc. DIRECTIONS TOTAL PRICE 9,495.00 9,495.00 0.00 9,495.00 (~~ oDO.vo 3j5~~Sr vv ~~~b60~D0 ~°pQ~G~OV~C~u 1MPORTANT: PURCHASE ORDER NUMBER MUST APPEAR ON ALL INVOICES rJ:JI LLB 1 77Y 1G. V f firanro4cr LAr1RFZC~J F¢.R i .LPICa ~ F,C C~~TER HOMES 7t-It.. CIJS'I'!~!2 HOMES, ITC. $UPPLF~vtENTAI. SUBCVrTiRAct AGE 'I'ha parties toAtliis Cocutrveticn Agraemaat are Custer Homes, lac., "&tilder,"and ~~~~~(~CT7~r.~,` J y~j _ , "SIi~COBL7'iGtQf." This ~reomern shad govern. all labor perfvrnxd sell material ft:rnished by 5ubcontraaar it~r D~tilcltt~ until either party reaok~c it by deliv+tring writtetl notiCC of stlC.~ reVDC8t70Il tv the other p$rry If either party revvices this agrcatneni, it shall be null and void far aiI contracts entrrcd igto therea8ar. 5ubco~actvr sgtcss' To perforrrt aIl work in a workmanItlce warmer, and To delivzr materials which are nrw uxi m auord~mce with the pleas and. specifications detiveced tv Subcorrtrsctor. Upon reeeivirag notice front Bcu~dar that Subcontrsctor has performed inferior, improper, or ansound labor yr deliver materials at varisrice with which is spacz5ed, Subcontractor will, within tWestty- faur (2~) hours, proceed to remove a3ch work err materials gnr.1 makz good aII other vsnork err raater'sls damaged tbaebq, Subcontractor shaII not sulicorrtract eny Qart of the work without the prior written canscat of Bufidar•, and such canser-t shad nat release Subcontractor Pram eery responsbili:}• or liabfiity in connection with fhe suhcoatrnct. 2. It is mutually understood sad agreed betwsea Builder end Subcontractor tlsat Subcontractor is an indcptndent eor~traczar, shat at a4 tune are any of Subcar-2ractar's employers in tTae eiupl'oy afBuilder, noc is Busidcr resp~on~la to nay of Snbcantractar's crrtplvyets for the payment of their wags:; that Subcatrtractvr alone is re~vnsibk for cvmpfiance wzih all spgIiicablt atafutes, vrt£maacts, sad regulatigrss concerair~g hie employde's Social 5ecsirity, Workman's Campensarioa, and all safety aotuiitians sad r~rd keeping requizra~ats wader the Occupstional, Sathty and Health Act of 1970 and dmsztdaoeats thereto, 5tata and Federal taution, and ficeasing. SubcozrDCactor shy tttaintatim, ~ hie own expea~ such insurance as will prvtxet biai from worhmea'a cempcasatian acts and from crt~r claims and dataag~es far personal injury, including destix„ in tie r~,i*.~~am mount of ~Sa0,Q00.0a, which mty aris+c fr8m apGratiotu wader tl~s cotrtract, whether such aperatiani be by the Subcotsua'ctar err by any other . subcontra,~cars or his esaplayer by aayaae directly err indirectly employed by either of ihczrz Subcvntrsctar hereby agrtxs to indemnify sud hold harmless Builder from nay dai~as with respell to the maztcrs vutliaesi in tbo paragraph. A cepy of Svbcotrtractor•'s Certificate of Ia~aaace must ba spprwcd is writing by G~stat Homes, Irtc ei least tlrrec t3) days prier to coauaeacszueat of work by Subcontractor PAGE 04 PArE F2 -- - - 0 ,~5r r~+ ~ »~* ~ ~, u ~ rl roc ra4t r LAMPRCO HEATING & AC f~_ ~?~ E~_.'2E1k1@ 1'?: ~'~ '17_3_,•~~9 CUSTER HOIdES ihlC ~~ a: _ 3. Subcontractor ag'ecs to pay for all materials end s1l iabar supplied by Suticcatxractor for the job whey due Qa.d to 6otd 13ut~der and She owner haruilcss from any fleas arising cut oflabor, materials, or suhcomtads ftunished by Sulaeontractor. Binder shaD have the right to tequira Svbcantr°actar tv pravidt releases by alt persons supplying tabor, Qllatenals, ar seruicas to Snbeanttnctar far tltc jab heron described and to weei~old &nat payrnart urttd such rgleaaea arc supplied. . Subcontractor aclrnowie~dges that it is as independent oontracior and agrees to pay $.II c'Aatributions requsrzd by taw ar cotttrtct which if uapud could bt as cncvmbrance upoa the racer property where the work is parfbrmcd. 4. Sutracter agrees to permit office Subcots#ractors reaso~l+6 apportuaity for storage of materials aced exaction of 3hair work and shall properly coordisiQte its work with tlZciFS. 3f a~ay part of the work to be performed by Subcoarattor depends. for Fropex execution, on the work of other subaantracSOrs or Builder or the owner, Subconrsctor shalt insmedsa*.ely report cort~iets, defeats or arais~ions that z~ndtr such other work uatimety or.unsuitabte Fat exaetitivn of iu work proceztiing with its work without such sport of defects. i; and scceptancc hY Subcvx~tractor of the work of ac'hes': that precedes, or i3 performed siratsltarieously with, its wor9c. Should Svbcor damage work at other subcosttracton or ~uildcr, Subcontractor shall pay the cqs# of repairing such damage and hold Builder and owaa ttarmiess. Sutscoutractor agrees Shaz he w7l Hier bald Bwlder resposis-'hle for loss o: damage or injury cooed by another ssbaaatractor sad further agrees to leak to said subcarrtnctor for tfit recovery from it of any wch damage yr injwy. Subcontractor shall procure and Qap all sKCessary para~its required far performance by Subcontractor under this agreezFiestt which are obtaiaab~e by 5ubtantractor and wilt protect unfinished work cad all materials for Subcautractor's use, or itiaidtnta~t therrtQ, agate ~zcy lruid of damage,, isveluding damage by t~-e elemetrts, axcxpt damage by 5r~, i~iid camptatioa of the building. 5ubcornractor agrees to remove S-bm the sift, unJrss instructed otherwise, tubbisi~ and waste amtcrials created by it3 operation as the work proms, is order to maintain a clean, sofa cond'etiot; :ad, upoa eornplatian of its aaric. to remove ail tools, equipment, mstcrixls and waste. All ladttas art to be tawerad ancVar safely storm at the cud of each day. Any rubbish or waste materials not clewed up and prvpcriy disposed of by Subcontractor wi11 result is a ba~elcchuge. 7. Subcoattactar hv03y e:acoaditioes~lly guaaatees aI3 Ells work labor aced materials to $uilrlts and the own$ or purchaser for tba p~~ of Builder's warranty to the owner ar purchaser. PAGE 03 Fai`aE f~:~ CERTIFICATE OF SERVICE t~j I hereby certify that on this f~ - day of 2007, a true and correct copy of the foregoing Second Amended Complaint was served by means of United States mail, first class, postage prepaid, upon the following: W. Darren Powell, Esq. Corey J. Adamson, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 99 Hamsburg, PA 17108-0999 . i~-- CUSTER Hc7f•~S ?hh . 8. Builder ogress to supervise the work and cvordinatc the work of atha suppliers sad subcontractors to eaabit Subcontractor to perform its work riuiely a,~ e~citntly, and Budder agrees that 'tt wilt maka the payments required laaraunder pracnQtiy when due. 9 Bw7dtr woes to pay pramptiy Subcontractor in his perfvr:asnce ofhis work sad no later than 30 days within subtni3sion ofaIIy im~aice, couditioa,ed upon vcti5catioA by $uilder that the work l~ been satisfacton7y performed. If paytncat is not received within this period and SubcQUCractor does not rxeive novScatian justifying the delay in payment, Subcontractor retry tcttzyihatz this .d-greeaent ttpan se~rcM (7} days written notica ofbis iritattt to do so. If Sul'coatractor dace so terminate fellow~ing said notitx, Ile shall be atitit}ed to receive the reasonable vah~e of all materials and tabor iacorpor$ted tit tine jab to ttte time of termiaataon sad the profit 3ubcoatractvr ~wouid nora~aily to bsve bees mach hsd the eoairact beta fully abd properly performed. 10. If the SubcoKrtractot shalt becoiae bamlaupt; make assigasncnt far the hene$t of creditors, or otherwise become ratable to can3- aut the work or if tht Suheoutraccvr, without p3ropar cause, removal from rho work for a period in e~cctss of forty-fight (48} hours, then tha $uildcr may, by notice is writing or verbet to the Subcaa2tntiar, tcnairate this Agi~emesrt it action is sot takes to cure said default within tR+etrty-sour (24) bows after Builder's atian of such noticZ. If Subcoanactors shtill is wy manner unduly delay or atherwi~ neglect to finish his respvnsibilities, without boos fide causa, within tlto tistte hereiabafore provided, or othtrwisE bret:ch say provision of tins Agreement, Bw7dtt may, by written or verbal sorties as lereinbefare prvvixted, reQuixe ibe Subcarttractor to proceed with the w~ within twraty-four (24} lzoun altar wrzvayance of such notice of correct ~ such breach of this Agreement ~xrithsn twerttyfvur (Z4) hour period and upon fa~ure to do so, the Budder shaft thza 13ave t,}ta right to tarminate this .Agreement sad tv tmploy any athet Sub~atrador to continue and complete tine said work aocarding to said plans and s~+ecifccati~, or any atteratians .vr additiatu as het~stbafora provided, and shaII Ilia have the right to authorize such replacement subcantra+otot tv use any raaterialt or property of the 5ubcoatractor upon the ground If the expeltse to cotrtQtete the cantnet, in addition tv say payttvents made of the Subcoatrscsor l~eunder, shat! accaed the ozi~al subcontract pricy plus costs for any additional work, SulsGOntractor shalt bt liablo to the Builder ,for suob eacas stuns. 11. ih the evtat SubcattrzBCtor discvvars any ineoasisteacies ar errors im his worm with the &:21dor or other subevtttractvrs is the plans #ad speci:5catrons, he Shall, before performia~ said wetly, promptly bring such starters to thr attantiott of the Builder who shall than gi~+t Subcontractot written iastruct2ons or ttireaioas re~ativa tv raid incvt~ietea~ ar army. No daiazs for additional compensation will be eaasidered s,~d Subcontractor shalt be eatiflal to ao sash additional susus, unleoa bt than RASE C~ 4 ~J s'^' 02132:"?CIAO 1',:':~:+ 7i?'= ~]~~~ ,..~-~•.-~.w i v~~ aura a r•ti. C(~TER I-~01*£S INC have. if at all posss'ble, brought the incor:sistrr~cy or erCas to the Builder's tttruLion prior to performing nay work thereon. rrxx 171 FAGS ~3 5 12. This Agrcw~ent and ten' cauva:ant and provision hacin shall bind, apply to, and run is .favor of cite parties, that successors im interest And their lagal _ .. ..... _ repres•cntarives. . ] 3. Ia construing tins Agreement, the Builder and Subcontractor msy be more than one gonna; that if tht context so requires, the singular pronocm shall be taken to mean sad includt the phu$1, zhe tnasculina, t3~e femir~oate, snd the tzeuter, sad that generaIly all graramaucal chaagrs shall be ntade7 tssuned, sad implied to tttakt the prvvisifln9 hareof apply zqually to corporations tad to individuals. lr4~''t A2~'© C~rK~n~ G ~~C • Subcont7act~r Subcontractor's FccleraI ID #: Subcontractor's Address: ~~l y~ oa9~7 ~ ~ 3~ f~. rly.n E o~ Incorpa~zatcd~ t°~~ ^no Susines! Phone: sG f~- `~ `~ I F Erncrgency P1•atzc: Std :2,5'6 ~ ~/-1Q~ / Accepted and approved z-z.•}~Qa Custy Fiome~o. ,__ -, ~----~uildc! Builder's Address: 1309 Laurel Point Circle Hutisb<ug, PA 17110 Business Fhoae: (717) 232~i027 Custer Homes, Inc. StrPPLF~tENTAL TRADE CONTRACTOR AGREEbIE'NT Trade Contractor mutt prnvide a curnnt Certificate of Insurance, naming Custer Homes, Inc., as the Certificate Holde,: This Certificate must be on file prior to release of farrtpayment. All Invoices must be issued to Custer Homes, Inc., 2805 Old Port mad Suite 200, Harrisburg PA 1711 D. The parties to this Construction Agreement are Custer Homes, Inc., `Builder," and r.aMarco Heating and Cooling , "Trade Contractor." This Agreement shall govern all labor performed and matcrial rmiched by Trade Contractor for Builder until either party revokes it by delivering w~atten notice of such revocation to the other party. If either party revokes this agreement, it shall be cull and void for all contracts entered into thereafter. 1. Trade Contractor agrees: To perform all work is a workmaaU~ke manner, and To deliver materials which are new and in accordance with the plans and speafications delivered to Trade Contractor. Upon receiving notice from Budder that Trade Contractor has performed inferior, improper, or unsound labor or delivered materials at variance with which is specified, Trade Contractor will, within twenty-four (24) hours, proceed to remove such work or materials and make good all other work or materials damaged thereby. Trade Contractor shall not subcontract any part of the work without the prior written consent of Builder, and such consent shall not release Trade Contractor from any responsibility or liability in connection with the subcontract 2. It is mutually understood and agreed between Builder and Trade Contractor that Trade Contractor is an independent contractor-, that at no time are any of Trade Contractor's employees in the employ of Builder, nor is Builder responsible to any of Trade Contractor's employees for the payment of their wages; that Trade Contractor alone is responsible for compliance with all applicable statutes, ordinances, and regulations concerning his employee's Social Security, Workman's Compensation, and all safety conditions and record keeping requirements under the Occupational, Safety and Health Act of 1970 and amendments thereto, State and Federal taxation, and licensing. Trade Contractor shall maintain, at his own expense, such insurance as will protect him from workmen's compensation acts and from other claims and damages for personal injury, including death, in the minimum amount of $500,000.00, which map arise from operations under this contract, whether such operations be by the Trade Contractor or by any other trade contractors or his employer by anyone directly or indirectly employed by either of them. Trade Contractor hereby agrees to indemnify and hold harmless Builder from any claims with respect to the matters outlined in the paragraph_ A copy of Trade Contractor's teviscd 4/03 `~~s ~~ Certificate of Insurance must be approved in writing by Custer Homes, Ir1C. at least three (3) days prior to commencement of work by Trade Contractor. 3• Trade Contractor agrees to pay for all nza.terials and all Iabor supplied by Trade Contractor for the job when due and to hold Builder and the owner harmless from any liens '*~~~ out of labor, materials, or subcontracts furnished by Trade Contractor. Builder shall have the right to require Trade Contractor to provide releases by all persons supplying labor, materials, or services to Trade Contractor for the job herein described and to withhold final payment until such releases are supplied. Trade Contractor acknowledges that it is an independent contractor and agrees to pay all contributions required bylaw or contract which if unpaid could be an encumbrance upon the real property where the work is performed. 4. Tradc Contractor agrees to permit other Trade Contractors reasonable opportunity for storage of matcrials and execution of their work and shall properly coordinate its work with theirs. If any part of the work to be performed by Trade Contractor depends; for proper execution, on the work of other trade contractors or Builder or the owner, Trade Contractor shall immediately report conflicts, defects or omissions that render such other work untimely or unsuitable for execution of its work Proceeding with its work without such report of defects is and acceptance by Trade Contractor of the work of others that precedes, or is performed simultaneously with, its work. Should Trade Contractor damage work of other trade contractors ox Builder, Trade Contractor shall pap the cost of repairing such damage and hold Builder and owner harmless. Trade Contractor agrees that he will not hold Builder responsible for loss or damage or injury caused by another trade contractor and further agrees to look to said trade contractor for the recovery from it o£ any such damage or injury. 5, Trade Contractor shall procure and pay aIl necessary permits required for performance by Trade Contractor under this agreement which are obtainable by Trade Contractor and will protect unfinished work and all materials for Trade Contractor's use, or incidental thereto, against every kind of damage, including damage by the elements, except damage by fire, until completion of the building. 6. Trade Contractor agrees to place debris in Builder's dumpster, unless instructed otherwise, rubbish and waste materials created by its operation as the work progresses, in order to maintain a clean, safe condition and, upon completion of its work, to remove all tools, equipment, materials and waste. A11 ladders are to be lowezed and/or safely stored at the end of each day. Any rubbish or waste materials not cleaned up and properly disposed of by Trade Contractor will result in a backcharge. 7. Trade Contractor hereby unconditionally guarantees all his work, labor and materials to Builder and the owner or purchaser for the period of Builder's warranty to the owner or purchaser. 8. Builder agrees to supervise the work and coordinate the work of other suppliers and trade contractors to enable Trade Contractor to perform its work timely and revised 4/03 .. n•- efficiently, and Builder agrees that it will make the payments required hereunder promptly when due. 9. Builder agrees to pap promptly Trade Contractor in his performance of his work and no later than 30 daps within submission of any invoice, conditioned upon verification by Builder that the work has been satisfactorily performed. If payment is not received within this period and Trade Contractor does not receive notification justifying the delay in payment, Trade Contractor map tP,,,,inate this Agreement upon seven ('7) daps written notice of his intent to do so. If Trade Contractor does so teruUnate following said notice, he shall be entitled to receive the reasonable value of all materials and labor incorporated in the job to the tone of tr*~17+~*+~tion and the profit Trade Contractor would normally expect to have been made had the contract been fully and properly performed. 10. If the Trade Contractor shall become bankrupt, make assignment for the benefit of creditors, or otherwise become unable to carry out the work or if the Trade Contractor, without proper cause, removes from the work for a period in excess of forty-eight (4$) hours, then the Builder may, by notice in writing or verbal to the Trade Contractor, tP~ ate this Agreement if action is not taken to cure said default within twenty-four (24) hours after Builder's communication of such notice. If Trade Contractors shall in any manner unduly delay or otherwise neglect to finish his responsibilities, without bona fide cause, within. the time hereinbefore provided, or otherwise breach any provision of this Agreement, Builder map, by written or verbal notice as hereinbefore provided, require the Trade Contractor to proceed with the work within twenty-four (24) hours after conveyance of such notice or correct any such breach of this Agreement within twenty-four (24) hour period and upon failure to do so, the Builder shall then have the right to tPr**»*~ate this Agreement and to employ any other Trade Contractor to continue and complete the said work according to said plans and specifications, or any alterations or additions as hereiabefore provided, and shall also have the right to authorize such repIa.cement trade contractor to use any materials or property of the Trade Contractor upon the ground. If the expense to complete the contract, in addition to any payments made of the Trade Contractor hereunder, shall exceed the original subcontract price plus costs for any additional work, Trade Contractor shall be liable to the Builder for such excess sums. 11. In the event Trade Contractor discovers any inconsistencies or errors in his work with the Builder or other trade contractors in the plans and specifications, he shall, before performing said work, promptly bring such matters-to the attention of the Builder tvho shall then give Trade Contractor written instructions or directions relative to said inconsistency or error. No claims for additional compensation will be considered and Trade Contractor shaIl be entitled to no such additional sums, unless he shall have, if at all possible, brought the inconsistenry or error to the Builder's attention prior to performing any work thereon. 12. This Agreement and every conversant and provision hereia shall bind, apply to, and run in favor of the parties, their successors in interest and their legal representatives. ® 13. In construing this Agreement, the Builder and Trade Contractor may be more than one person; that if the contest so requires, the singular pronoun shall be taken to mean and include the plural, the masculine, the feminine, and the neuter, and that mvised 4/03 o..' . e ~ w ~ 4;E,..w:: . . ,:~~: rr gen~p ~ grammatical changes shall be made, assumed, and implied to make the provisions hereof apply equaIlp to corporations and to individuals. Trade Contractors Address: / 3 d l~• I l~,v, ~~ ~ G'~ H~~~f~~v~~ Pry _ / 7/// Business Phone: ] ! 7 ~~ ~ - ~ ~~ Emergency Phone: TJ/7 SS'y- ~ Z ~ ~ Fag: 7 7 ,~LG ~- `~~/ I _ Trade Contractor's Federal ID #: Incorporated? yes ^no LaMarco Heating and Cooling Printed Trade Contractor Company Name Printed a of rade Contractor t Accepted and Appro4ed Signature o Trade Contractor Date Custer Homes, Inc. Signature of Builder Builder's Address: 2805 Old Post Road, Suite 200 Ha.rxisburg, PA 17110 Business Phone: (717) 232-6027 • .~ revised 4/03 Terms and Conditions Construction Reoniremeats: The work of all Trade Contractors, their employees, and/or trades is expected to be performed in a good and worlanaalike manner. Wotkrnanlike quality is defined as worlmranship which meets or betters those criteria indicated in the construction pleas, The Company's Scope of Work and defined by industry standards for each trade. Insyectioa Reoorls: The Trades Contractor and a Company rcPnseatauve shall walk the jolt together and compleu each section of the inspection report(s). The Trade Contractor must correct any deficiency found during the inspection and the job must be 100-percent corttpletz before payment will be mach. The Trade Contractor and a Compan}+ representative musrt sign-0ff on all sections of the inspection repom(s) attesting that the job is correct and complete. Punch-List: The site superintendent shall inspect the work of each Trade Contractor and will issue apunch-list of all items requiting correction as soon as the Trade Contractor has completed his or her work The Trade Contractor is expected to immediately complete their punch-list so that he or she does not slaw down the overall construction of the home and/or the scheduling of the next trade contractor. Should the Trade Contractor not retrun to complete his or her punch-list within a reasonable time then the site superintendent may hire someone to complete the punch-list and the Trade Contractor will be back charged for this work The job will not be considered to be complete and no payment shall be made until all punch-list items are completed and approved by the site superintendent Homeowoer's Walk-Through Lisa' Any items found on the homeowner's walk-through that require correction must be completed immediately upon notification by the site superiatendeut Time is of the essence for completing co[rectioos on homeowner's walk throughs. If any Trade Contractor does not return to collect his or her iterns listed on the walk-through list then someone else will be hired m make the wrreciions and the Trade Contractor will be back charged. Sam The Trade Contractor acknowledges that he or she has/wiIl complete the Safety Training programs as tzquired by The Company and that he or she has his or her own Safety and Iiaz-Coin program for their employees andlar trade contractors. Trade Contractor agrees to comply with OSHA and/or any other governmental agenry's safety rules and mgulazioas. Should any citations, fines, and/or penalties, eu., be incurred by The Company due to the negligence of the Trade Contractor, the Trade Contractor agrees to indemnify The Comparry For any and all penalties, fines, etc., incurred. Iosunnce: [Trade Contractor ackmowledges thaz a nxluitement of working far The Company is for the Trade Contractor to have current Worker's Compensation and Genera! Liability Insurance az all times. The Trade Contractor agrees to indemnify The Company and to be responsible for nay claims, expenses, or litigation arising from any claim made against The Company due to any injury of the Trade Contractor's employee or trade contractor for any worker's compenution claim. The Trade Contractor also agrees to indemnify The Company and to be responsible for any claims, expenses, or litigation arising from any claim made against The Company due to the workmanship, equipment, or materials supplied by the Trade Contractor.] Lt is your responsibility to notify us immediately if your insurance is canceled for any reason. No Trade Contractor is allowed to work without cumnt insurance. Should you fail to notify us and we are notified of your un¢aured status by someone other than you, you will be removed from our list of approved Trade Contractors and all money due you for any work will be withheld, in full, until you have curn:nt insurance and we have received a new original Certificate of Insurance. Securi :The Trade Contractor is responsible for closing and locking aIl windows and doors before leaving the job site at the end of each day. If there is a problem on the job site due to Trade Contractor not closing and locking all windows and doors the Trade Contractor shall be responsible for said negligence. Clean[ioess: The Trade Contractor is responsible for leavutg the work area clean and fine of debris. ]:fit is necessary for The Company to remove debris !eft lry the Trade Contractor, the Trade Contractor will be assessed a minimum clean-up fee of S 100.00. The site superintendent or other The Company representative will designate an area for all building debris and trash to be placed. Such area may be a dumpster or a designated trash pile on the lot Trash, such as lunch or snack trash, is not to be thrown on the floor of the house or on the jobsite. All such trash must be placed in the trash bas6xt/can/dumpster and propcriy secured so as to not blow away. Port-a johns are provided on all job sites. Any person found using sinks, tubs, commodes that arc not hooked up, ductworY, closets, etc., as a toilet will be fined S 100.00 and will not be allowed back on arty of The Company's jobsites. IL is the responsibtliry of the Trade Contractor to impress on his or her employees and trade cpnt:acmts that this offensive habit of using any area as a miler facility will not be tolerated. Warren . A]1 work is W be guaranteed for one (1) year firm date of closing of the house. Certain items must be guaranteed for (2) years. These items are details in The Compa~r's printed Limited Warranty booklet. The Trade Contractor aclmowledges that he or she received a copy of The Company's printed Limited Warranty booklet and that he or she agrees to abide by the warranty coverage requiretnettts and time period printed in this document as they pertain to his or ha trade. Drn¢-Free Workalace:'The Company is a drug-fi~ee workplace. The use of any controlled substances (drugs) or alwhol on any of The Company's jobsite(s) is not permitted. Should the Trade Contractor, his or her employees and/or trade conuactots be found to be in possession of either dntgs or alcohol on the jobsite(s) the Trade Contractor will be requested to leave the jobsite and will not be allowed io tenon to work until the problem is corrected. Prieing/Chanse Orders: All work is quoted and priced per home. Payment will be made per the price listed on the purchase order. Any change order will be priced per change order. No additiotal warlc will be considered, allowed., or paid other that that priced on the purchase order. Should the Trade Connector be requested to perform cry additional work the Trade Contractor must request a hand purchase order from the site superintendent before additional work is performed. Purchase Order Number. No invoice shall be paid thaz does not include the purchase order number for the job. The preprinted Request for Payment issued by The Company will be used as the invoice. Trade Contractor shall not begin work before The Company has issued a Purchase Ceder. Damage and/or Wastefulness of Materials: Damage to materials and installed items such as flooring, windows, cabinetry, fumias, etc., caused by negligence on the part of the Trade Contractor, his ocher employees and/or trade contractors will result in baekcharges for the amount necessary to replace or repair the itcta Wastefulness of materials by the Trade Contractor' will result in the cost of the material being deducted from payment due the Trade Contractor. Proof of Name and iRS ID Number: The IIt5 requires that we have on file in our office proof that the name and Federal ID number (or Social Security number) that you are working under is the same as is on file with the IRS. We requite a copy of a document from the IIt5 showing your name and ID number (Federal ID far businesses or Social Security number for individuals). You also will be asked to complete a Form W-9. Without this documentation the IRS requires that we withhold 20 percent of all money due you, which must then be forwarded W the IRS. The "insured name" on your insurance certificate must match the name on the documents above and the W-9. All checks will be made payable to the name on the above. No insurance certificate will be accepted as valid that reflects a different name from the one on eabove-described documents. ~~.. ~ ~- ZT-o Si~.ature of Trade Contractor Date r--, r~~ r~ - e~x -...t 'Y'7 ..;. ~ ..m. _.~ V"F1 ~;_ -'r ~4~` ~ '~`:{::i ...f Anthony T. Lucido, Esquire Corey J. Adamson, Esquire Thomas, Thomas & Hafer, LLP P. O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7639 Attorneys for Defendant HEIRLOOM CABINETRY OF IN THE COURT OF COMMON PLEAS PENNSYLVANIA, INC. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION -LAW v. NO. 07-5705 Civil LAMARCO CONTRACTING, INC. JURY TRIAL DEMANDED Defendant RRAEGIPE"TO LIST CASE fOR ORAL ARGUMENT TO: PROTHONOTARY: Please list Defendant LaMarco Contracting, Inc.'s Preliminary Objections to Plaintiffs' Complaint for oral argument for the January 23, 2008 Argument Court session. 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant LaMarco Contracting, Inc.'s Preliminary Objections to Plaintiffs' Complaint 2. Identify counsel who will argue case: (a) for plaintiffs: Thomas J. Nehilla, Esquire address: Jennifer Zimmerman, Esquire Rhoads & Sinon, LLP P.O. Box 1146 Harrisburg, PA 17108-1146 (b) for defendants: Corey J. Adamson, Esquire address: Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: January 23, 2008 Respectfully submitted, THOMAS, THOMAS ~ HAFER, LLP Date: ~`-5~ Q j BY: AnthN~ucido, Esquire I.D. 7 83 Cor y J damson, Esquire I . D N .204508 30 orth Front Street/P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7639 486024.2 2 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: Thomas J. Nehilla, Esquire Jennifer Zimmerman, Esquire RHOADS & SINON, LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Attorneys for Plaintiffs THOMAS, THOMAS 8~ HAFER, LLP Sherry Ha tein Dated: ~~ ~Jr' p, 486024.2 3 ra { > c,-a _ .....t . " ~ r • f71 .~ `. ' '~_ r ,... __._ , -.