HomeMy WebLinkAbout03-5546DANIELWYRICK :
- and - :
MERRIE WXRICK, :
Petitioners, :
SHUGHART CUSTOM H01~ffiS, INC., :
a Pennsylvania corporationt :
Respondent. :
IN THE COURT OF CO~ON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PETITION TO COMPEL
NON JUDICIAL ARBITRATION
PETITION TO COMPEL NON-JUDICIAL ARBITRATION
NOW COME, the Petitioners, DANIEL WYRICK and MERRIE
WYRICK, by and through their attorneys, Ricci & Taneff, and
petition this Court under 42 Pa. C.S.A. ~ 7304 for an Order
compelling non-judicial arbitration in the referenced matter,
in support thereof, state as follows:
1. Petitioners, Daniel and Merrie Wyrick, are
married, adult individuals, who reside at 840 Alexander Spring
and
Road, Carlisle,
2.
Pennsylvania
located at 3
17013.
3.
Construction Agreement
Cumberland County, PA 17013.
Respondent, Shughart Custom Homes, Inc., is a
corporation, with its principal place of business
East Linden Drive, Carlisle, Cumberland County, PA
On December 3, 2001, the parties entered into a
(hereinafter the "Agreement") whereby the
Respondent agreed to build for the Petitioners a home on a lot
owned by the Petitioners for a price of $290,000.00. A copy of
is attached hereto and made a part hereof as
the Agreement
Exhibit-"A".
4.
Certain disputes have arisen between the
Petitioners and Respondent over the construction of the home
limited to, the improper construction of the
including, but not
garage floor slab,
improper installation of
failure to complete the pre-occupancy punch
5. Petitioners repeated attempts to
septic tank and
list.
resolve these
aforesaid problems with Respondent have proven unsuccessful.
6. Paragraph 11 of the Agreement requires any dispute
arising in connection with the Agreement be resolved through
binding arbitration.
7. The procedure set forth in Paragraph 11 of the
Agreement requires, in part, that any disputes be resolved by a
Board of Arbitrators consisting of: "lO]ne [arbitrator] to be
selected by the [Petitioners], one [arbitrator] to be selected by
by [Respondent], and the third to be selected by the arbitrators
so chosen by the parties "
8. The procedure further provides that "[s]hould
either of the parties fail to select an arbitrator as aforesaid,
upon ten days notice from the other to do so, the arbitrator
selected by the other party shall have full power to proceed upon
his reference and his decision in the matter of the dispute shall
be final and binding ."
9. The Agreement, including the arbitration provision
contained at Paragraph 11, was prepared by the Respondent.
10. By letter dated October 2, 2003, Respondent was
advised of Petitioners' selection of their arbitrator. A copy of
the October 2, 2003 letter is attached hereto and made a part
hereof as Exhibit-"B".
11. The Respondent has failed to advise Petitioners or
their counsel of Respondent's selection of an arbitrator within
the required ten day period.
12. Petitioners' have incurred attorney fees and costs
in the sum of $700.00 in connection with this Petition.
13. Petitioners believe and therefore allege that any
conditions precedent to arbitrate under the terms of the
Agreement have been satisfied.
the Petitioners, Daniel and Merrie Wyrick,
WHEREFORE,
respectfully request
this Honorable Court to: (i)
upon the Respondent to show cause, if any it has,
Petitioners'
issue a Rule
why the
construction claim should not be submitted to
arbitration before the
order the Petitioners'
arbitration before the
the Respondent to pay the Petitioners'
Petitioners' arbitrator; (ii) thereafter
construction claim to be submitted to
Petitioners' arbitrator; and (iii) order
attorney fees and costs
3
incurred in connection with having to bring this Petition in the
amount of $700.00.
Dated: October 20, 2003
RICCI & TANEFF
By: Paul Tane£f, ~sq.~
Sup. Ct. No. 63777
4219 Derry Street
Harrisburg, PA 17111
(717) 564-5833
4
VERIFICATION
We, the undersigned, verify that the statements made
the foregoing Petition are true and correct to the best of our
knowledge,
statements
4904 related to unsworn falsification to authorities.
information and belief. We understand that any false
herein are subject to the penalties of 18 Pa. C.S. ~
D. aniel Wy~
Dated: October 20, 2003
CERTIFIC2~TE OF SERVICE
The undersigned certifies that a copy of the
Petitioners' Petition To Compel Non-Judicial Arbitration was
served upon the following person(s) and in the manner indicated
below on the date set forth herein:
Ao
Service by Certified U.S. Mail, postage prepaid,
addressed as follows:
(1)
HAROLD S. IRWIN, III, ESQ.
IRWIN LAW OFFICE
64 SOUTH PITT STREET
CARLISLE, PA 17013
Dated: OCTOBER 21, 2003
Ref: c: \wyric\daniel\doc002. wpd
6
Exhibit-~A''
[Construction Agreement Follows]
KES,
&
INC
DAN bJYRICK TEL N0,717-958-6245 Sep 1~,02
8:'06 Pi02
~ItULIIIAKI' CUS'I~JM HOME~. INC.
3 EA..s'J' I ,INDEN DF, IVP,
CARLISLE, I'A. 17013
C&)NSTRI JCTIQN AOREEMI~NT
TIllS AGRI~IJMI~;N'I', MA I)E '1"1 liS, 3rd day of D~lnt~r 2001,
by ami between
· ·
Carlisle, I
/
hercmllcr e.allexl OWNER; and SIIUUH^RT CUSTOM HOMES, INC. (.)F 3 East bi.den
W I TN E,S S E'I'H:
I. BI JII ,DER covenants and agrees wilh OWNER Io construct fbi' OWNI!,R
a_ eme slory dwelling hour. Plan # 26-24-A is h~relo ariadne, on thc lot of OWNER,
l~ing 846 Al~andcr Spring Rend, Carlisle, Pa. 17013. ~tt~l in I)ickiusun Township,
Cum~land ~nmy, PA,
Ruilde~ fmlher covenants and agrees that (xm.~lrue.tio~t shn]l be a 'ccomplished in a g(nnJ
and w~'kmanlike manne~ and a~rdlng to the t~uiremen~ orStal~ luwa and Township
Ordinan~, and to Ihrnish and supply all lair and mat~iala n~a~ for thc
p~tbrman~ of the work ~llcd ~ in lhe Plans and S~eifi~i~S m~h~ burro
and mad~ a part
2, 'll)e said OWNt:R, in consideration of tLc true and Faithful pt~rJLN'.jm~C¢ by Ibc
BUll .I )ER of the ~v~ants and agr~tlents herein ~mtuiD~, nl~tllJoJ3cCJ Or relbrr~ tO OD
his pan to be kepi., ~rv~, done and performS, hor~y ~venants m~d ug~s wilh said
BUll,lIEn, lo pay the Suln of $290,70~. jn tbnr draws i~ follows:
25% ....... when foumlnti~ is excavated and foundaU~ wall,~: installed
with spr~iag and asphalt .~llng applied, and first floor subflooring is Jllstall~l; and
__25% ........ when dwelling is andcr r(mf, windows and door tYames installed,
..... 25%. ..... wbct~ wiring plumbing and healing installations ara roughed in and
drywall and exte.rior brick work (~ siding is installS; and roof gutters and
mc in pla~.
...... 25% .... when tide. painting, rough grudhmg mind ~lumle drivc~y are in~bdlad,
all 1o the .~l,isfhclion of' BUILt)ER and OWNER, in a~*rdance wlfl~ tl~e Phms and
Sp~ili~lions of this ~tract, OR, the pa~nent 8chOrtle r~tlir~l by tlc mortgugu ~n)pany
u~d by BUY RR.
KES,-INC'- DRN I.dYRICK TEL N0.717-958-6245 Sep 15,02 8:06 P..O$
Page -2-
3. Bt )ILDER a~'e~s to ~)ttllnonce c~msiruclion on lhe two wuuk~ uti.o,' · mcrrl/~agc
commilmen! ia rcceiv~,on or h~fore ......... and to cl.npl~e thc dwelling
m approxim~tcly seven (7) monlhs thm'o~fler.
4, Thc consideration of $290,700. includ~;s rv~ything according
to thc plans and ~p~ificati~s her~o attaoh~. Any EXTRAS shMI ~ paid lu
BUILL)EI{ by OWNER.
5. FII.JII,DER agrccs to execute a ,qtJptflati(m Against Mcc, hanic,~' and Ma~,eriuhmms'
Ilea.,;. The BLI.II,DER shall he c~nsidered an hldepcndolll conLractot in ~c~pcct to tilat part
of the work dolle in thc oration and ~n~ruction of said d~lling house which he has
undertaken to do and perform, and that he atone shall bo answel'abl~ fur any loss ~ <]amagc
catls~ by himseH'or his su~ntra~or$, agents or employees; m~d he agrccs to fidly
indemnify, profit and save harmless tile OWNHR against lusa, da~{ago or ~npensc as t~
all claims or liabilities resulting from a~iOcnt of negligen~ ~lch are the t~ult ortho
IIIJII,I)I~R.
6. BUILDER will obtain all permits r~ulrCd by the Township or :~tatC, by OWN~'.R
ls~,I'r.~u Io I.~,ay for when start of houa~,
7. I*1' IS UNI)ERSTOOD ANI) AORIJ, E,D that no uxtra charge or claim shall lx~ made
{'or any work done by, or for materials furnished or supplied for tho said boJlding,
unless an agroeme,)t for change with respect thereto shall first have been r'odu~d 1o
writing and attached hereto, which shall not affect thc completion th[m ul'sald dwelling
It is understood that the BUILI)E;I( will neither boy topsoil nor fill, und ul] Iop$oil
on tht~ lot and earth moved in excavating the bllsemt.:qll sllall rezmfin ot~ lira lol.
9. The parties hereto agree that tile attornay for the BUIL,I)RR shall hold thc atsloulit
of $2,000. in escrow ilntil woatller conditions l~rmit tl~e gradi~s~ a~d sr, exling ofth~
lawn, no latex than alld tlpoll Stlcll time wuutlmr p~'mlts; or as soon al!.cr,
as weather permits. C(rmpletion of'same th~ money shah be released to BUll.DER,
KES',
D~N tdYRICK TEL N0,717-938-62~3' Sep 13,02 8~07 P'.OJ
10. Risk el; Io,~,~ or damag~ to said swelUng house by tire ~r u~:i uf ged is a~sul.¢d by
()wrier who shall provide a policy of fire Insurance with o,xted~ded covcrag~ i~ a,~ amounl
of al least $290,*/00.
I I. IT I~ MI J'l't JAI,LY ArdRHl~l') by all parties {hul iii Ihe event any disJ)utc or
di.,mgreement herealler arises ~twee, n theln as lo Ihe slyle, eharac~ei', or porliun ~l'thc work
on said dwelling to be done, or materials to b~ fimnish~ under ~his ~mtru~;4 er m~y oih~r
matter in connection therewith, file same shilll be referred to Bud resolved by a Bored of
Arbitralors, one Io be selectezl by thc ()WN~K, one selected by thc P, tJIbD~l~,m~d thc
Ihird to he .selected by thc arbilrators so '~u.nun by the I)arl:ies, and their dccision
mauer ol'lhe disput¢ shall be fina] and binding upon thc parries hereto. Should elthcr ol'lh~
pm'ties filil t~ .~ele~t an arbitrator as aforesaid, upon ton days notk:c lixm~ lbo other to
m'bitrat~w .~elec'ted by tI~ olher Imrly shall have lbll power to prooa:d u~×.~ his r~£~re~e¢
his decision in the malted, of tho dispute shall be final and biudblg up~m ull parl.i~.
12. BUII,I)I.,'R guarantees all malerlal and werkmanship for is pbq-iod ul'une (]) ~tr.
EXCI~PT 110WEVI~;R, OWNL3R underala,ds that IIUI 1.17l!g ~12~ lq_.Q~l' guarunl~¢~ ~ dry
13. 'rhi,~ Agre~nent studl be legally binding upon the resp~lJvc purlics hul:~l~, their '
rcspeefive heirs, assigns and persomd rcpr~sc, tutlv~s.
14. This ^gr~m~cnt is conditioued tm BIJYI3F, obtaining a mortg.g~ with
bank Wa)point P,ank and the am(rant ors 290,'/00,
IN WITNESS WI'It~REOI", the partl~ hereto set ther hands m~d seal~ the
and year first above wtJtto,.
Exhibit- ~B"
[October 2, 2003 Letter Follows]
October 2, 2003
VIA FAX TRANSMISSION TO (717) 243-9200
~ FIRST CLASS MAIL
HAROLD S IRWIN III ESQ
IRWIN LAW OFFICE
64 SOUTH PITT STREET
CARLISLE PA 17013
RE: DANIEL & MERRIE WYRICK V. SHUGHART CUSTOM HOMES
CONSTRUCTION CONTRACT DISPUTE/ARBITRATION
Dear Mr. Irwin:
In accordance with Paragraph 11 of the Construction
Agreement, dated December 3, 2001, I am furnishing you with the
name of the arbitrator the Wyricks have selected to resolve their
dispute with your client, Shughart Custom Homes, Inc. The
arbitrator's name, address and phone numbers are set forth below:
Richard E. Freeburn, Esq.
Freeburn & Hamilton
4415 North Front Street
Harrisburg, PA 17110-1709
Tel: (717) 671-1955
Fax: (717) 671-1960.
Please furnish my office with the name, address and
telephone numbers of the arbitrator of your client's choosing
within the next ten (10) days. I will pass on your client's
selection to Mr. Freeburn so that the two (2) arbitrators can
select a third as required under the Agreement.
Looking forward to your response, I remain,
Letter to H.S. Irwin, III, Esq.
Re: Wyrick v. Shughart/Arbitration
October 2, 2003
Page 2
Very truly yours,
Paul Taneff
PT/pt
cc:
Daniel and Merrie Wyrick
840 Alexander Spring Road
Carlisle, PA 17013
Richard E. Freeburn, Esq.
Freeburn & Hamilton
4415 North Front Street
Harrisburg, PA 17110-1709
Ref:c: \wyric\daniel\122.wpd
RICCI & TANEFF
ATFORNEYS AND COUNSELLORS AT LAW
4219 Derty Street, Ha~tlsburg, PA 17111
Telephone: (717) 564-5833 Fax (only): (717) 564-8683
FAX COVER SHEET
To:
Of:
From:
Client/Matter:
Date: OCTOBER 2, 2003
Number of pages (including this sheet):
FAX NUMBER TRANSMITTED TO: 717-243-9200
HAROLD S. IRWIN, III, ESQ.
IRWIN LAW OFFICE
PAUL TANEFF
WYP,.ICK V. SHUGHART CUSTOM HOMES
3
COMMENTS: PLEASE SEE LTR OF EVEN DATE WHICH FOLLOWS. ORIGINAL
MAILED TODAY.
NOTE: Ifa. ny of these fax copies are illegible, or you do not receive the same number of pages as stated above
please contact me immediately at:
(717) 564-5833
CONFIDENTIALITY NOTE
Information/documents accompanying this transmission contain information from the Law firm of RICCl & TANEFF,
which is confidential and/or legally privileged. This Information Is intended solely for the use of the Individual or entity
named on this transmission sheet. If you are not the designated recipient, you are hereby notified that any disclosure,
copying, distribution or taking of any action of reliance on the contents of this informafion is prohibited. If you have
received this transmission In error, please notify us by telephone immediately so that we can arrange for the return of
the original documents to us at no cost to you and with reimbursement for costs you may have incurred in responding to
this notification.
OCT 22 200
DANIEL WYRICK
- and -
MERRIE WYRICK,
Peri' :loners,
SHUGHART CUSTO~ HOMES, INC.,
a Pennsylvani~ ~corporation,
Re sp¢ ,nden t.
AND
consideration
Arbitration, a
cause why the
RULE R~
Dist ~/fbu '~oon:
: CUMBERLAND COUNTY,
IN THE COURT OF COMMON PLEAS
PENNSYLVANIA
: PETITION TO COMPEL
: NON JUDICIAL ARBITRATION
OW, this~ , 2003, upon
the Petitioners' Petition To Compel Non-Judicial
ule is hereby entered upon Respondent, to show
etitioners' Petition should not be granted.
~I~NABLE WITHIN ~ DAYS OF SERVICE.
BY THE COURT:
, Ricci & Taneff, 4219 Derry Street, Harrisburg, PA 17111
III, Esq., 64 South Pitt Street, Carlisle, PA 17013
q
HAROLD S. IRWIN, III, ESQUIRE
ATTORNEY ID NO. 2~g20
84 SOUTH pil-r STREET
GARLIILE PA 17013
(7t7) ~lS-e0~0
ATTORNEY FOR PLAINTIFF
DANIEL WYRICK and
MERRIE WYRICK
v. Plalttlffs
SHUGNART CUS~
HOMES, INC.
Del
'OM
)ndant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
: NO. 2003 - 5546 CIVIL TERM
: PETITION TO COMPEL NON-JUDICIAL
: ARBITRATION
NOTICE TO PLEAD
To: PAUL TANEIFF ESQ
RlCCl & TANEFF
4219 DERRY ST
HARRISBURG PA 17111
You are here1
herein within (20) d~
October ~, 2003
y notified to file a written response to the New Matter contained
fs of service or judgment may be entered against you.
64 South Pitt Street
Carlisle, PA 17013
(717) 243-6090
Supreme Court ID No. 29920
DANIEL WYRICK and
MERRIE WYRICK
Plaintiffs
SHUGHART CUSTOM
HOMES, INC.
Del ~ndant
NOW comes
to this petition for a 5
1, The ay
2. The a~
: IN THE COURT OF COMMGN PLEAS OF
: CUMBERLAND COUNTY~ PENNSYLVANIA
CIVIL ACTION - LAW
:NO. 2003 - 5546 CIVIL TERM
: PETITION TO COMPEL NON-JUDICIAL
: ARBITRATION
ANSWER TO PETITION
FOR RULE TO SHOW CAUSE
tarold S. Irwin, Ill, Esquire, attorney for respondent, and responds
~ie to show cause, representing as follows:
,rments of paragraph one of the petition are admitted.
;rments of paragraph two of the petition are admitted.
3. The a~erments of paragraph three of the petition are admitted.
4. The at erments of paragraph four of the petition are admitted in part and
denied in part. It is ~dmitted that certain disputes have arisen between the parties. It is
specifically denied t ~at anything about the construction of this home has been
performed improperly or that defendant failed to complete the punch list. On the
contrary, all work or this home was performed by respondent and its subcontractors in
a good and workm-'
compliance with th~
subcontractors hav~
unreasonable and
nlike manner, in accordance with the standards in the trade and in
parties' construction contract. Furthermore, respondent and its
gone above and beyond the call of duty in attempting to satisfy the
~ordinate demands of petitioners.
5. The averments of paragraph five of the petition are admitted in part and
denied in part. It is admitted that any efforts to resolve this matter have been largely
unsuccessful. It is dbnied, however, that petitioners have made repeated attempts to
resolve these disputes. On the contrary, petitioners have done nothing but continue to
make unreasonable ~and inordinate demands upon respondent and have made virtually
no effort to resolve this matter while respondent and its subcontractors have gone
above and beyond
inordinate demand~
6. The a/
7. The at
the contract of the
8. The
the contract of the
9. The
~e call of duty in attempting to satisfy the unreasonable and
of petitioners.
erments of paragraph six of the petition are admitted.
erments of paragraph seven of the petition are admitted. However,
arties speaks for itself.
'erments of paragraph eight of the petition are admitted. However,
arties speaks for itself.
,erments of paragraph nine of the petition are admitted.
10. The a~/erments of paragraph ten of the petition are admitted in part and
denied in part. It is fadmitted that a letter dated October 2, 2003, was faxed to
respondent's counstgl. However, respondent is without knowledge or information
sufficient to form a I
contents thereof an
selection on Octob~
respondent's new n
herein at length.
11. The a
and denied in part.
)elief as to when respondent's counsel advised respondent of the
I therefore denies that respondent had notice of the arbitrator's
· 2, 2003. By way of further response, the averments of
latter below are incorporated herein by reference as if fully set forth
/erments of paragraph eleven of the petition are admitted in part
It is admitted that respondent's counsel did not advise petitioners'
counsel of the respondent's arbitrator selection until October 22, 2003. It is denied,
however, that such selection and notification was not within the required ten day period
for the reasons set f~orth in respondent's new matter below, the averments of which are
incorporated herein !by reference as if fully set forth herein at length.
12.
that respondent is v
amount of petitione
Furthermore, howe,
for this unnecessar
The a~/erments of paragraph twelve of the petition are denied by reason
,ithout knowledge or information sufficient to form a belief as to the
s' attorney fees and proof thereof at tdal is demanded, if relevant.
,er, respondent avers that the amount of petitioners' attorney fees
petition are irrelevant and incurred without just cause.
13. The a
Respondent is read
this matter.
WHEREFOF
that the parties mal,
the construction col
14_ The
thirteen, inclusive,
length.
/erments of paragraph thirteen of the petition are admitted.
y, willing and able to proceed with arbitration, if necessary to resolve
.E, respondent demands that petitioners' petition be dismissed so
proceed to arbitrate this dispute in accordance with the terms of
~tract between the parties.
NEW MATTER
lsponses of respondent to the petition, paragraphs one through
re incorporated herein by reference as if fully set forth herein at
15. On O,
respondent's coun,,
arbitrator he select~
letter, which petitio~
herein by reference
:tober 3, 2003, petitioners' counsel sent another letter to
el in which he advised counsel that he had discovered that the
;d has a conflict of interest in handling this arbitration. A copy of this
~ers conveniently neglected to attach to their petition, is incorporated
and attached hereto as respondent's Exhibit "A".
16. Respondent believes and therefore avers that upon receipt of the October
3, 2003 letter, respcmdent's counsel had a reasonable pedod of time within which to
make a decision about the conflict of interest posed by petitioners' arbitrator, discuss it
with respondent and respondent's arbitrator and notify petitioners' counsel.
17. Resp¢
to which petitioners
arbitrator should re.,
the ten day pedod ~
18. On O~
that respondent wa
19. Howe
proceed to arbitrati,
interest in the matt~
20. On O,
that he was rejectir
perceived conflict c
proceed to arbitrati~
21. By let
petitioners that res
Freebum, Esquire,
petitioners' counse
22. On O
that he has selecte
should select anot[
ndent believes and therefore avers that receipt of the second letter,
counsel requested a response and offered to select another
3ondent have a problem with the selection, stopped the running of
thin which respondent was to select its arbitrator.
9ber 22, 2003, respondent's counsel notified petitioners' counsel
selecting William Douglas, Esquire as its arbitrator.
er, on that day petitioners' counsel also filed this petition seeking to
)n before only the arbitrator he selected and who has a conflict of
;tober 25, 2003, petitioners' counsel notified respondent's counsel
respondent's arbitrator, William Douglas, Esquire, because of a
interest on his part and because, in any event, he intended to
)n without permitting the selection of an arbitrator by the respondent.
~r of the same date, counsel for respondent indicated to counsel for
)ndent objects to the participation of petitioners' arbitrator, Richard
lue to the conflict of interest of which he had been notified by
tober 28, 2003, respondent's counsel notified petitioners' counsel
J Ron Turo, Esquire as an alternative arbitrator and that petitioner
er arbitrator within ten days.
23. Petitioners have suffered no inconvenience or prejudice by the delay in
selecting arbitrators~ which delay was caused solely by their arbitrator's conflict of
interest of which they had notified respondent.
24.
fees in defending th
arbitration in this ca
impartial arbitration
RespQndent, on the other hand, has now incurred substantial attorney
is petition in which petitioners are attempting to proceed to
e with their own arbitrator alone and denying to respondent an
25. Under
capricious and repr,
to cause frustration
WHEREFOI;
the parties be perm
panel of three arbib
required to pay the
this petitioner.
October-~:~, 200
)anel.
the circumstances of this case, petitioners' actions are arbitrary and
;sent an attempt to abuse the powers of this Court and done solely
to respondent and gain an unfair advantage in this matter.
E, the respondent demands that the petition be dismissed and that
itted to proceed to arbitration as required under the contract, with a
ators selected as provided in the contract and that petitioner be
attorney fees and costs incurred by respondent in defending against
64 South Pitt Street
Carlisle, PA 17013
(717) 243-6090
Supreme Court ID No. 29920
VERIFICATION
The facts stated in this answer and new matter are true and correct to the best of
my knowledge, infor~nation and belief. I understand that false statements made herein
are subject to the penalties of 18 Pa.C.S.A. Section 4094, relating to unsworn
falsification to autholities.
October ,2003
BY:
SHUGH~ART CUSTOM HOMES, INC.
?
I~'ICHARD D. SHUGHART, PrUdent
EXHIBIT "A"
18/83/2003
11:57 7175648683 RICCI&TANEFF
RICCI & TANEFF
AI'rORNEYS AND CO~EI~OR$ AT LAW
4219 De~-y ~et, H.~, PA 17111
PAGE~ BI
FAX NUMBER'
To:
Of:
From:
Clitmt'IVlat~er:
Date:
Number of page:
COMMENTS: P]
NOTE: If any ofth~
please ¢ont~
[nformation/documen
which is confidential s
copying, distribution ,
received thb transmis
the or~al document
this notification.
FAX COVER SHEET
'RANSMITTED TO: 717-243-9200
]AROLD $. I~WIN, IH, ESQ.
RWTN LAW OFFICE
'AUL TA3TEFF
VYRICK V, SHUGHART CUSTOM HOMES
)CTOBER 3, 2003
including this shect): 3
EASE SEE LTR OF EVEN DATE WHICH FOLLOWS.
De tax copies are illegible, or you do not r~ceivn the same number of pages as stated above
:t me immediately at:
(717) $64-5833
CONFIDENTIALITY NOTE
:s nccompaflyln[ this transmission contain informatlnn from the Law firm of RICCl & TANEFF,
nd/or legally privileged. This information Is intended Inlet}' For the use of the Indl~ldnll or eufity
ssion sheet. If you are not the designated redpient, yon ifa hereby notified that any dLqelosure,
r taking of any action of reliance au the crescents ef this InfonnaUon is pr~hihitud, lfyou have
JOlt ia error, please notify us by telephone immediately so that we ran araln~e for thc return of
~ lo as at n o cost to }'on and with reimbursement for cost~ yon may have incurred in FUSpozldLag to
10/03/2003 11:57 7175648GB3 RIOgIgTANEFF PAGE
October 3, ~003
IilCCI &
A'I'I~RNEY5 AND COUNSELLORS AT LAW
Teh(717~58~-5833
VIA FAX TRA~
AND FIRST C]
HAROLD S IRt
IRWIN LAW Ol
64 SOUTH FI~
CARLISLE PA
RE: DA1
COl
Dear Mr. Irx
This 1~
fa~ed and m~
the selecti~
Wyrick.
I was ~
arbitrator,
developer wl
were one of
Mr. Freebur]
Mr. Freebur~
he wanted m,
of this sit'
choice of M
he will obj.
arbitrator.
This 1.
disclosure
problem, I
Should that
arbitrator
forthwith.
Thanki
'SMISSION TO (717) 243-9200
'IN III ESQ
'FICE
'T STREET
170].3
iIEL & MERRIE WYRICK V. SHUGHART CUSTOM HOMES
ISTRUCTION CONTRACT DISPUTE/ARBITRATION
~tter is being written as a follow up to the letter I
~iied to your office on October 2, 2003 regarding
~n ~f an arbitrator by my clients, Daniel and Merrie
~dvised late in the day yesterday that the Wyricks'
Richard E. Freeburn, Esq., had represented a buildinl
lo was a defendant in a lawsuit in which the Wyricks
~everal homeowner plaintiff parties. According to
that litigation is still open and pending. Since
believes that this may raise a potential conflict,
to disclqse this fact to you. The Wyricks are awar~
etlon and are and remain comfortable with their
:. Fr'eeburn as an arbitrator and remain confident tha'
~ctively evaluate this dispute in his role as an
~tter is being written in the interest of full
:o you and should this potential .conflict cause you a
~ouid ask that you advise me in writing accordingly.
be the case, I will ask the Wyricks to select anothe~
~nd his or her nam~ will be submitted to you
you for your attention to this matter, I remain,
11:57 ?175648BB3 RIOCI&TANEFF PAGE
Letter to H.iS.~Irwin, III, Esq.
Re: Wyrick ~. ~hughart/Arbitration
October 3, 9003
Page 2
Very truly
PT/pt
cc: Daniel
840 A1
Carlis
Richar
Freebu
4415 N
Harris
and Merrie Wyrick
~xander Spring Road
Le, PA 17013
J E. Freeburn, Esq.
rn & Hamilton
0rth Front Street
Dung, PA 17110-1709
Ref: c: \wyric' dan~ e].\£Z3.wpd
DANIELWYRICK
- and -
MERRIE T~3[RICK,
Petitioners,
VS.
SHUGHART CUSTO~ H~S, INC.,
a Pennsylvania corporation,
Respondent.
IN THE COURT OF CO~ON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2003-5546
PETITION TO COMPEL
NON JUDICIAL ARBITRATION
P~PLy TO RESPONDENT~S ANSWER AND NEWM~TTER
TO PETITION TO COMPEL NON-JUDICIAL ARBITRATION
NOW COME, the Petitioners, DANIEL WYRICK and MERRIE
WYRICK, by and through their attorneys, Ricci & Taneff, and file
this Reply To Respondent~s Answer And New Matter To Petition To
Compel Non-Judicial Arbitration, and in support thereof state as
follows:
1.-13. NO RESPONSE REQUIRED.
WHEREFORE, this paragraph is in uhe nature of a prayer
for relief to which a responsive pleading ls not required. To
the extent that a response may be required, the Petitioners,
Daniel and Merrie Wyrick, deny that the Respondent is entitled to
any of the relief claimed.
NEW MATTER
Replying further, the Petitioners, Daniel and Merrie
Wyrick state as follows:
14. NO RESPONSE BEQUII~ED.
15.
admit that on
ADMITTED IN PART; DENIED IN PART. The Petitioners
October 3, 2003, their counsel advised Respondent's
counsel in writing that their arbitrator had represented a
defendant in a lawsuit in which the Petitioners were one of
several named party plaintiffs. However, the Respondent's
inferences that Petitioners' counsel and/or the Petitioners
themselves believed that their arbitrator had a conflict is
denied. The letter attached to the Respondent's Answer and
identified as Exhibit-"A" speaks for itself.
16. DENIED. Stating further, the Respondent's
contract unequivocally requires that Respondent select an
arbitrator of his choosing within ten {10) days of the
Petitioners' selection. The Respondent's contract does not make
any provision for any period of time within which to resolve
potential conflicts of arbitrators.
the contract
Since the agreement was
is to be construed strictly
Stating further,
not contain a tolling period for
the Respondent's
prepared by Respondent,
against the Respondent.
17. DENIED.
contract does
the ten (10) day
since the contract
is to be strictly
period as suggested by the Respondent. Again,
was prepared by the Respondent, the contract
construed against the Respondent.
2
18. DENIED AS STATED. The Petitioners admit that
Respondent's counsel authored a letter dated October 22, 2003
purporting to advise Petitioners' counsel ef Respondent's
selection of an arbitrator. A copy of that letter is attached
hereto and made a part hereof as Exhibit-"A".
the letter was posted on Wednesday, October 22,
Stating further,
2003 and received
on Friday, October 22, 2003; the very day the Petition To Compel
Non-Judicial Arbitration was served upon Respondent's counsel. A
copy of the transmittal letter used to serve the Petition
together with the postal receipts are attached hereto and made a
Exhibit-"B".
DENIED. Petitioners' Petition was filed with the
Prothonotary on October 21, 2003 and served
counsel on that same day by certified mail.
Stating further, Respondent's suggestion that his letter of
October 22, 2003, wherein he attempted to select an arbitrator,
part hereof as
19.
Cumberland County
upon Respondent's
Petition coincided is, at
fact that Respondent's counsel
letter ,Df October 22, 2003,
and the filing of the Petitioners'
best, disingenuous, in view of the
penned a note at the bottom of his
compel!". See
The Petitioners admit that
counsel wrote a letter to Respondent's counsel dated
2003 and sent the letter to Respondent's counsel by
requesting "[p]lease w/draw your Motion to
Petitioners' Exhibit-"A".
20. DENIED AS STATED.
Petitioners'
October 25,
3
facsimile transmission and U.S. first class mail. A copy of the
October 25, 2003 letter is attached hereto and made a part hereof
as Exhibit-"C" which speaks for itself.
21. DENIED. Petitioners are without knowledge or
information sufficient to form a belief as to what letter the
Respondent is referring to, having not attached a copy of same to
his Answer, and therefore denies the same.
22. DENIED. Petitioners are without knowledge or
information sufficient to form a belief as to what letter the
Respondent is referring to, having not attached a copy of same to
his Answer, and therefore denies the same.
23. DENIED.
24. DENIED. Petitioners are without knowledge or
information sufficient to form a belief as to what costs
Respondent has incurred in defending against the Petitioner's
Petition brought because of the Respondent's failure to adhere to
his own contract terms and compelling enforcement of an
arbitration proviso of Respondent's own making, and therefore
denies the same.
25. DENIED.
W~EE~FOE~, this paragraph is in the nature of a prayer
for relief to which a responsive pleading is not required. To
the extent that a response may be required, the Petitioners,
Daniel and Merrie Wyrick, deny that the Respondent is entitled to
any of the
Dated:
relief claimed.
November 7, 2003
By:
RICCI & TANEFF
Sup. Ct. No. 63777
42].9 Derry Street
Harrisburg, PA 17111
(717) 564-5833
5
the foregoing
Petition To
to the best
VERIFICATION
the undersigned, verify that the statements made in
Reply To Respondent's Answer And New Matter To
Compel Non-Judicial Arbitration are true and correct
of our knowledge, information and belief. We
understand that any false statements
penalties of 18 Pa.
to authorities.
Dated: November
herein are subject to the
C.S. § 4904 related to unsworn falsification
2003
Daniel Wyrick
Merr~e Wy~ic~~<3
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the Reply To
Respondent's Answer And New Matter To Petition To Compel Non-
Judicial Arbitration was served upon the following person(s) and
in the manner indicated below on the date set forth herein:
A. Service by U.S. Mail, First Class, Postage Prepaid,
addressed as follows:
(1) HAROLD S. IRWIN, III, ESQ.
IRWIN LAW OFFICE
64 SOUTH PITT STREET
CARLISLE, PA 17013
Dated: November 10, 2003
Ref: c: \wyric\daniel\doc003.wpd
Exhibit- ~A''
[Irwin Letter of October 22, 2003 Follows]
IRWIN LAW OFFICE
64 SOUTH PITT STREET
HAROLD S, IRWIN, I I I CARLISLE, PENNSYLVANIA '170t 3 717-243-6090
NATHAN C. WOLF~ PHONE
........................ . www. irwlnlawoffice.com 717-243-9200
RHONDA S. IRWIN e-maih irwinlaw@earthlink, net FACSIMILE
ROBERT D. STAMBAUGH
KERI L. LEIPOLD
PARALEGALS
October 22, 2003
PAUL TANEFF ESQ.
RICCl & TANEFF
4219 DERRY STREET
HARRISBURG PA 17111
RE: Wyrickv. Shughart Custom Homes
Dear Mr. Taneff:
I wanted to inform you that I have selected Attorney William Douglas as
arbitrator. I also wanted to disclose to you at this time that Attorney Douglas has
recently handled a personal injury case for Mrs. Shughart. If this is a source of conflict
please contact me as soon as possible so that I may make arrangements.
Thank you for your attention in this matter.
Very~_.~
Harold S. Irwin, III
CC:
SHUGHART CUSTOM HOMES
3 E LINDEN DR
CARLISLE PA 17013
Exhibit- ~B''
[Transmittal Letter and Postal Receipts Follow]
October 21, 2003 '.
VIA U.S. CERTIFIED MAIL
ART. NO. 7002-3150-0001-9449-0870
HAROLD S IRWIN III ESQ
IRWIN LAW OFFICE
64 SOUTH PITT STREET
CARLISLE PA 17013
RE: DANIEL & MERRIE WYRICK V.
SHUGHART CUSTOM HOMES
PETITION TO COMPEL ARBITRATION
Dear Mr. Irwin:
Enclosed find a "clocked" copy of the Petition filed today
with the Cumberland County Prothonotary. Thank you for your
attention to this matter.
Very truly yours,
Paul Taneff
PT/pt
Enclosure: (As referenced above.)
cc: Daniel and Merrie Wyrick (w/"clocked" cpy of Petition)
840 Alexander Spring Road
Carlisle, PA 17013
Ref:c:\wyric\daniel\125.wpd
· Complete items 1, 2, and 3. Aisc complete
item 4 if Restricted Delivery is desired.
· Print your name and address on the reverse
so that we can return the card to you.
· Attach this card to the back of the mailpiece,
or on the front if space permits,
1. Article Addressed to:
D. Is delke~ address d~fferent f~ite
If YES, enter delivew address below: ~ No
3. Se ce Type
~C~rtified Mail [] Express Mail
f-I Registered E3 Return Receipt for Merchandise
[] Insured Mail [] C,O.D,
4. Restricted Delivery? (Extra Fee) [] Yes
2. Article Number (Copy from service label)
PS Form 3811, July 1999 Domestic Return Receipt
~02595-00-M-0952
Exhibit-~C''
[Taneff Letter of October 25, 2003 Follows]
October 25, 2003
VIA FAX TP~NSMISSION TO (717) 243-9200
AND FIRST CLASS MAIL
HAROLD S IRWIN III ESQ
IRWIN LAW OFFICE
64 SOUTH PITT STREET
CARLISLE PA 17013
RE: DANIEL & MERRIE WYRICK V. SHUGHART CUSTOM HOMES
PETITION TO COMPEL ARBITRATION
Dear Mr. Irwin:
This letter is being written in response to yours of October
22, 2003.
I find it rather interesting that your letter of October 22,
2003 was authored the day your office signed for the Petition To
Compel Arbitration. Nevertheless, it is our position that it was
your client's contract that imposed the arbitration requirements
including the proviso that "should either of the parties fail to
select an arbitrator . upon ten days ~notice from the other to
do so, the arbitrator selected by the other party shall have full
power to proceed upon his.reference and his decision in the
matter of the dispute shall be final and binding. ."
Our efforts to resolve this dispute amicably have been met
with nothing but resistance from your client. Moreover, it is
our opinion that had we taken to action tO bring this matter to
arbitration, your client would have taken no steps to arbitrate
this matter. Furthermore, we have been put to considerable,
unnecessary expense in compelling an arbitration that was imposed
upon us pursuant to your client's contract. And, so we are
unwilling to withdraw our Petition as you requested in your note
penciled in at the bottom of your October 22, 2003 letter.
Further, and although we believe this issue is moot in view
of the fact that you have failed to select an arbitrator within
the required ten day period, your selection of an arbitrator is
Letter to H.S. Irwin, III, Esq.
Re: Wyrick v. Shughart Custom Homes
October 25, 2003
Page 2
and would have been unacceptable to us. In view of the fact that
the arbitrator served as Plaintiff's counsel in a personal injury
case for Mrs. Shughart, we are and would have been of the opinion
that he has a conflict of interest. Had he been defense counsel
in the personal injury matter, our opinion might have been
different. But, that does not appear to be the case. In any
event, your selection of an arbitrator is moot in view of the
fact that your selection was not made within the ten day period
as required under your client's contract.
With the foregoing said, we are not willing to withdraw
Petition nor accede to your selection of an arbitrator. And,
we are prepared to have the Court decide this matter in
accordance with the Petition as filed.
our
so
Very truly yours,
Paul Taneff
PT/pt
cc: Daniel and Merrie Wyrick (w/cpy of Irwin ltr of 10/22/03)
840 Alexander Spring Road
Carlisle, PA 17013
Ref: c: \wyric\daniel\126.wpd
RICCI & TANEFF
ATTORNEYS AND COUNSELLORS AT LAW
4219 Derry Street, Harrisburg, PA 17111
Telephone: (717) 564-5833 Fax (only): (717) 564-8683
FAX COVER SHEET
FAX NUMBER TRANSMITTED TO: 717-243-9200
To:
HAROLD S. IRWIN, III, ESQ.
IRWIN LAW OFFICE
Client/Matter:
Date:
PAUL TANEFF
WYRICK V. SHUGHART CUSTOM HOMES
OCTOBER 25, 2003
Number of pages (including this sheet): 3
COMMENTS: PLEASE SEE LTR OF EVEN DATE WHICH FOLLOWS.
NOTE: If any of these fax copies are illegible, or you do not receive the same number of pages as stated above
please contact me immediately at:
(717) 564-5833
CONFIDENTIALITY NOTE
Information/documents accompanying this transmission contain information from the Law firm of RICCI & TANEFF,
which is confidential and/or legally privileged. This information is intended solely for the use of the individual or entity
aamed on this transmissiou sheet. If you are not the designated recipient, you are hereby notified that any disclosure,
copying, distribution or taking of any action of reliance on the contents of this information is prohibited. If you have
received this transmission in error, please notify us by telephone immediately so that we can arrange for the return of
the original documents to Us at no cost to you and with reimbursement for costs you may have incurred in responding to
this notification.
DANIEL WYRICK and
MERRIE WYRICK
SHUGHART CUSTOM
HOMES, INC.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
· NO. 2003-5546 CIVIL TERM
I.~N RE: OFFICE CONFERENCi
ORDER OFCOURT
AND NOW, November 17, 2003, an office conference with
counsel in the above-captioned matter is set for Friday, December 12, 2003,
at 10:00 a,m, in Courtroom No, 3.
~aul Taneff, Esquire
Ricci & Taneff
4219 Derry Street
Harrisburg, PA 17111
For the Plaintiff
,,¢tarold S. Irwin III, Esquire
64 South Pitt Street
Carlisle, PA 17013
For the Defendant
By the Court,
DANIEL WYRICN and
MERRIE WYRICN
SHUGHART CUSTOM
HOMES, INC.
·IN THE COURT OF COMMON PLEAS OF
·CUMBERLAND COUNTY, PENNSYLVANIA
·CIVIL ACTION _ LAW
: NO. 2003-5546 CIVIL TERM
IN RE: OFFICE CONFERENCL
ORDER OF COURT[
AND NOW, November 17, 2003, the office conference with
counsel in the above-captioned matter set for Friday, December 12,
2003, at 10:00 a.m. in Courtroom No. 3, is continued to Monday,
December 15, 2003, at 2:30 p.m..
~l~aul Taneff, Esquire
Ricci & Taneff
4219 Derry Street
Harrisburg, PA 17111
For the Plaintiff
~J'arold S. Irwin III, Esquire
64 South Pitt Street
Carlisle, PA 17013
For the Defendant
By the Court,
DANIEL WYRICK and MERRIE
WYRICK,
Plaintiffs
V
SHUGHART CUSTOM HOMES, INC.,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
: NO. 2003-5546 CIVIL TERM
IN RE: OFFICE CONFERENCE
ORDER OF COURT
AND NOW, December 15, 2003, the record should reflect
that the court has held an office conference with plaintiffs'
counsel, Paul Taneff, Esquire, and defendant's counsel, Harold S.
Irwin, III, Esquire.
The court has been told that plaintiff has selected
Richard Freeburn, Esquire, as his arbitrauor, and defendant has
selected Ron Turo, Esquire, as his arbitrator. Neither counsel
have objection to the other counsel's arbitrator. These
arbitrators are directed to pick a third arbitrator and proceed
to arbitrate in accordance with the underlying contract in this
action.
By the Court,
/aul Taneff, Esquire
4219 Derry Street
Harrisburg, Pa. 17111
For the Plaintiffs
~arold S. Irwin, III, Esquire
For the Defendant
:mtf