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Home My WebLink About03-6273IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEESERS, INC. and LESTER S. MILLER, JR., Plaintiffs ( OL Civil Action No. 03 -!02'13 v. E.C. SNYDER, INC., Defendant PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: On behalf of the Plaintiffs, by and through their undersigned counsel, please issue a Writ of Summons upon the following Defendant, notifying the Defendant that an action has been commenced in Cumberland County, Pennsylvania, which the Defendant will be required to defend. Please return the writ of summons to the undersigned for service. Thank you. The name and address of the Defendant is as follows: E.C. SNYDER, INC. 250 South 180i Street P.O. Box 1833 Harrisburg PA 17105 C. Grainger Bo n I.D. # 15706 114 North Second Street Harrisburg PA 17101 717-238-9300 Attorney for Plaintiffs December 2, 2003 ?l v z D5Z ?yc c> 3 :w1 c.n ?fR IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEESERS, INC. and LESTER S. MILLER, JR., Plaintiffs Civil Action No. 03 _4.,?73 V. E.C. SNYDER, INC., Defendant WRIT OF SUMMONS TO: E.C. SNYDER, INC. You are notified that FEESERS, INC. and LESTER S. MILLER, JR., Plaintiffs have commenced an action against you. December 2, 2003 Curt Long, Prothonotary Deputy SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-06273 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FEESERS INC ET AL VS SNYDER E C INC R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: SNYDER E C INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within WRIT OF SUMMONS On January 6th , 2004 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Dauphin County 25.50 .00 62.50 01/06/2004 C GRAINGER BOWMAN Sworn and subscribed to before me this day of Av A.D. Pr h Prothono onota*ry So answers: R. Thomas Kline Sheriff of Cumberland County In The Court of Common Pleas of Cumberland County, Penaisylvania Feesers, Inc. and Lester S. Miller, Jr. vs. E.C. Snyder, Inc. No. 2003-6273 Civil Term Now, December 26 20 03 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. p 1115 Sheriff of Cumberland County, PA Affidavit of Service Now, within , 20, at o'clock M. served the upon at by handing to a and made known to Sworn and subscribed before me this _ day of 20, copy of the original So answers, Sheriff of COSTS SERVICE MILEAGE AFFIDAVIT the contents thereof. County, PA (9iftce of Q,*hprtff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania FEESERS INC & MILLER LESTER vs County of Dauphin EC SNYDER INC Sheriff's Return No. 3326-T - - -2003 OTHER COUNTY NO. 03 6273 AND NOW: December 26, 2003 at 1:05PM served the within WRIT OF SUMMONS EC SNYDER INC upon by personally handing to ALEN HINSON (PURCHASER IN CHARGE AT TIME 1 true attested copy(ies) of the original WRIT OF SUMMONS and making known to him/her the contents thereof at 250 SOUTH 18TH STREET HARRISBURG, PA 17105-0000 Sworn and subscribed to before me this 31ST day of DECEMBER, 2003 PROTHONOTARY So Answers, r A/c- Sherifo hin Pa. By eputy Sheriff Sheriff's Costs: $25.50 PD 12/29/2003 RCPT NO 186194 E TORO IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEESERS, INC. AND LESTER S. MILLER, JR., Plaintiffs V. E. C. SNYDER, INC., Defendant Civil Action No. 03-6273 Civil Term PRAECIPE TO CHANGE ADDRESS OF COUNSEL To the Prothonotary of Cumberland County: Please note the change of address of counsel for Feesers, Inc. and Lester S. Miller, Jr., Plaintiffs, as set forth below: C. Grainger Bowman, Esquire Kirkpatrick & Lockhart LLP 240 North Third Street Harrisburg, PA 17101-1507 0 C. Grainger Bo an Attorney I.D. No. 15706 Kirkpatrick & Lockhart LLP 240 North Third Street Harrisburg, PA 17101-1507 T: 717-231-5817 Dated: January 15, 2004 F: 717-231-4501 r- ° -= CJ fl r L N mm ,Y Ci7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEESERS, INC. AND LESTER S. MILLER, JR., Plaintiffs Civil Action No. 03-6273 Civil Term V. E.C. SNYDER, INC., Defendant NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by an 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 claim or relief requested by the plaintiffs. 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYER REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle PA 17013 717-249-3166 800-990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes pagmas, 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 per escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte do que si usted falla do tomar action como se describe anteriormente, el caso puede proceder sin usted y un fallo per cualquier suma de dinero reclamada en la demanda o cualquier otra reclamation o remedio solicidato por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adcional. Used puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEME LLEVAR ESTE DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROFEER INFORMACION SOBRE AGENCIAS QUE OFREZCEN SERVIOS LEGALES SIN CARGO O BAJO COSTS A PERSONAS QUE CUALIFICAN. LAWYER REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle PA 17013 717-249-3166 800-990-9108 C. Grainger Bowm , Esq. Identification No. 15706 Attorney for Plaintiffs Feesers, Inc. and Lester S. Miller, Jr. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEESERS, INC. AND LESTER S. MILLER, JR., Plaintiffs V. E.C. SNYDER, INC., Defendant Civil Action No. 03-6273 Civil Term COMPLAINT Plaintiffs Lester S. Miller, Jr. and Feesers, Inc., by and through their attorney C. Grainger Bowman, Esq., hereby files this complaint against E. C. Snyder, Inc., Defendant, and in support thereof avers as follows: 1. Your Plaintiff is Lester S. Miller, Jr. ("Miller"), an adult individual, who resides at Locust Point Road, Silver Spring Township, Cumberland County, Pennsylvania. Miller is a consumer. 2. Your second Plaintiff is Feesers, Inc. ("Feesers"), a corporation which is owned 100% by Miller. Feesers has its principal place of business at 5561 Grayson Road, Harrisburg PA. 3. Your Defendant is E. C. Snyder, Inc. ("Snyder"), a corporation, with offices at 250 South 18a' Street, Harrisburg PA. Snyder is a contractor furnishing services and installing millwork products for consumers, including Miller. 4. Snyder (by and through its representative Steven C. Smith) sent a proposal containing a price term of $33,859.00 to Miller for Snyder s furnishing of specified millwork to Miller's personal residence on Locust Point Road, Cumberland County, Pennsylvania. Snyder's proposal was dated September 13, 1995. Snyder's proposal was delivered to Bob Hunter (at Feesers address), because Snyder knew that Bob Hunter was acting as Miller's representative for the purchase of millwork on Miller's residence. On behalf of Miller, Bob Hunter accepted the Snyder proposal for Snyder to famish the specified millwork to Miller's residence. 6. Accordingly, in accordance with the Snyder proposal and the Miller acceptance, Miller and Snyder entered into an agreement ("Agreement") whereby Snyder agreed to furnish millwork for Miller's residence. 7. Specifically, the agreed-upon proposal provided that Snyder agreed to famish specified millwork windows at the agreed upon price to Miller at the Miller residence on Locust Point Road in Silver Spring Township. A true copy of the Agreement and a copy of the drawings are attached hereto and incorporated herein as Exhibit A. The Agreement required Snyder to famish windows to Miller in accordance with specifications for the windows. The specifications required Snyder to provide windows with millwork made of mahogany wood. 9. Mahogany wood is a high quality and dense wood, which has properties which guard against wood rot. The purpose of Miller specifying mahogany wood for the windows was to have a high quality wood product in the windows for his residence. 10. Snyder furnished windows to Miller. 2 11, Miller paid Snyder for the furnishing of the windows. 12. At the time of payment by Miller to Snyder, Miller believed that the windows actually furnished by Snyder to Miller were furnished by Snyder in accordance with the specifications. 13. To the contrary, and unbeknownst to Miller at the time, the windows actually furnished by Snyder were materially not consistent with the specifications. At the time of Snyder's furnishing of the windows, Snyder, or its agents and representatives, concealed the fact that the windows furnished to Miller were not made of mahogany. 14. Snyder furnished windows contrary to the specifications in the following particular. Snyder furnished windows made of pine wood, which did not have properties which guard against wood rot. 15. Snyder did not inform Miller, or any of Miller's representatives, that the windows were not in accordance with specification. 16. Snyder did not inform Miller, or any of Miller's representatives, that pine wood had been substituted by Snyder for mahogany wood. 17. Snyder made the substitution of pine wood without authority from Miller or anyone acting on Miller's behalf. 18. The pine wood in the windows that were originally furnished by Snyder did rot. Miller did not expect rotting to occur, because Miller had specified mahogany for his home's windows. It was only after the rotting took place that Miller learned that the windows were not made of mahogany wood. 19. Miller, through his representatives, brought the fact of the non-conforming wood windows to the attention of Snyder, by showing Snyder the rot. 20. On December 11, 2002, Snyder assured and represented to Miller that Snyder would replace the wood windows that did not conform to the specifications. Snyder set a tentative schedule for replacing the windows for February 2003. The representations and schedule were set forth in a writing dated December 11, 2002. A true copy of the writing is attached hereto and incorporated herein as Exhibit B. 21. This assurance and representation from Snyder to Miller constituted a warranty to Miller that Snyder would replace the windows and correct the problem created by Snyder's non-conformity with the millwork specifications. 22. In 2003, Snyder made some efforts to replace some windows, but Snyder's efforts were not sufficient because the windows continue to fail. Further, Snyder's efforts did not undertake to correct all of the "rotting" problems caused by Snyder's failure to conform to the specifications calling for mahogany wood. Further, on many occasions in 2003, Miller's representatives placed repeated calls to Snyder's representatives seeking the status of Snyder's plan of action to correct the non- conforming windows. The representatives of Snyder failed to return calls regarding Snyder's plan of action. Further, wooden mullion grillwork was removed by Snyder from the Miller residence, on the promise that the grillwork would be returned in two weeks' time, and the grillwork was not timely returned, contrary to the interests and demands of Miller. 23. In 2003, Snyder has repeatedly promised to Miller that Snyder would replace windows at the Miller residence in order to make the Snyder windows conform to the original specifications calling for mahogany wood, and Snyder has repeatedly failed to make good on his promises to Miller. Snyder's undertakings regarding these non- 4 conforming windows has been a history of failing to conform to the original contract specifications, a history of willfully ignoring the failing non-conforming wooden window systems, a history of failing to act promptly to solve the problem, a history of promising to Miller that Snyder would make good on the non-conforming windows by the delivery of conforming windows, and a history of engaging in a pattern of deception and delay in delivering the window systems to Miller, and a history of disregarding Snyder's own promises to correct. 24. Miller has been subjected to unfair trade practices and deceptive dealing by Snyder in the following particulars: a. Snyder has repeatedly failed to provide Miller with the windows as originally specified; b. Snyder has deceived Miller by concealment, in that Snyder's originally furnished windows were non-conforming, but were painted to cover their non- conformity; C. When Miller demonstrated that the windows were both non-conforming and failing, Snyder made promises to replace and correct and Snyder has failed to make good on its promises; d. Snyder has unreasonably and irresponsibly delayed and failed to reply to calls of Miller regarding the status of replacing the non-conforming windows; e. Snyder has unreasonably delayed in returning wooden mullion grillwork to the Miller residence, despite promises to promptly return the grillwork, causing Miller great annoyance and inconvenience; Snyder has engaged in a pattern of deception and delay notwithstanding repeated Snyder promises that Snyder would replace the failed windows with conforming windows. 25. Miller has fully performed all conditions precedent to the hinging of this action. COUNT ONE (Breach of Warranty) 26. The above paragraphs 1 through 25 are incorporated herein by reference. 27. Snyder has committed a series of material breaches of warranty of quality by not furnishing windows conforming to the express specifications that Miller required of Snyder. Specifically, the wooden windows were specified to be of mahogany wood material, and they were actually made of pine wood material (a non wood rot resistant material). The non-conformity was a material breach of warranty. 28. Notwithstanding that Snyder finally agreed and promised to Miller that the windows would be replaced because they were non-conforming, Snyder materially breached this warranty to Miller because Snyder did not cause all windows to conform. Snyder did not replace windows in a timely fashion, but instead made repeated promises of replacement that Snyder did not keep, or in the alternative, never intended to keep (based upon Snyder's non-responsiveness to Miller's repeated calls for correction). 29. Snyder materially breached its warranty to Miller by failing to keep to his schedule for replacement and by failing to act timely or responsibly to replace and correct the failing and deficient windows brought to Snyder's attention by Miller. 30. Snyder materially breached its warranty of quality to Miller by supplying pine wood windows that were defective, because they were susceptible to the wood rot. Wood rot, in fact, occurred to Miller's windows. 31. Snyder materially breached the implied warranty of good faith and fair dealing by supplying non-conforming materials to the Project, by dealing with Miller deceptively, and by not acting promptly to make good on Snyder's promise to replace and correct. 32. Miller has suffered or will suffer damages in excess of $35,000 in replacing non-conforming windows as a consequence of Snyder's breach. WHEREFORE, Miller and Feesers demand judgment in their favor and against Snyder in the sum in excess of $35,000, plus interest, costs, attorney's fees, and such other relief as the court shall grant. COUNT TWO (Fraud) 33. The above paragraphs 1 through 32 are incorporated herein by reference. 34. Snyder supplied pine wooden windows on the Miller residence, which Snyder knew did not conform to the specifications required for the Project. Alternatively, Snyder, by its own inexcusable failures and with reckless disregard for its customer Miller, should have known that the originally furnished pine wooden windows did not conform to the specifications required for the Project, and Snyder did not take immediate and timely steps to replace the windows when it was called upon to correct the window problem. Instead, with disregard for Miller, Snyder made repeated promises about correcting the problem, and then did not carry out the promises. 35. Snyder intentionally concealed or suppressed a material fact in the representations it made to Miller regarding the quality of the wood in the windows it supplied to the Miller residence. Snyder was under a duty to disclose the material fact of the non-conformity to Miller, and Snyder did not do so. 36. Snyder failed to respond and perform replacement of windows when correction was demanded by Miller. 37. The concealments and failures of Snyder worked to the detriment of Miller. 38. Snyder made false promises to Miller regarding the schedule of replacement and correction with the intent to defraud Miller, because Snyder did not carry out his promises, nor take reasonable steps to do so. 39. Miller was unaware of the falsity of the representations or of Snyder's concealment or false promises when they occurred, and Miller acted in justifiable reliance of the representations, concealments or false promises to Miller's detriment, that is to say, Mille suffered actual damages. 40. Based on the pattern of behavior of Snyder, it is believed and therefore averred that Snyder never intended to correct the windows to meet the specifications as Snyder had promised to do. 41. Snyder's conduct was knowing, willful and in bad faith, and warrants the imposition of punitive damages. WHEREFORE, Miller and Feesers demand judgment in their favor and against Snyder in the sum in excess of $35,000, plus interest, costs, attorney's fees, punitive damages, and such other relief as the court shall grant. COUNT THREE (Unfair Trade Practices) 42. The above paragraphs 1 through 41 are incorporated herein by reference. 43. At all times relevant to this Complaint, there existed in Pennsylvania the Unfair Trade Practices and Consumer Protection Law, 73 P. S. Sec. 201-1 et seq. (the "Law" 44. Snyder knowingly or recklessly gave Miller the false impression that Snyder would furnish mahogany wood windows for the Miller residence, and that these mahogany wood windows would be rot resistant. 45. When Miller learned of the non-conforming windows and informed Snyder, Snyder continued to deceive Miller by promising to provide conformity, but then failing to make the windows conform to the specifications. 46. Snyder knew that Miller would rely to Miller's detriment based upon Snyder's representations. 47. Based on the foregoing, Snyder engaged in fraudulent or deceptive conduct which created a likelihood of confusion and misunderstanding on the part of Miller, contrary to the Law. 48. Snyder's fraudulent or deceptive conduct proximately caused Milled to sustain damages. WHEREFORE, Miller demands judgment in its favor and against Snyder in the sum in excess of $35,000, plus interest, costs, statutory damages, attorney's fees, punitive damages, and such other relief as the court shall grant. C. Grainger Bo an, Esq. Identification No. 15706 3 Northfield Way Mechanicsburg PA 17050-1531 Attorney for Plaintiff Lester S. Miller Jr. December 26, 2003 10 DEC, -30'03(TUE) 15:05 FEESERS-JOHN TIGHE TEL:717 5587455 P,013 VERIFICATION I verify that the statements made in this Complaint are true and correct to the best of my knowledge, information, and belief. I understand that any false statements made are subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unswom falsification to authorities. Lester S. Miller Jr. 11 0 CERTIFICATE OF SERVICE I hereby certify that I have served the foregoing Complaint, together with Notice to Defend, upon the following party by U.S. mail, first class, postage prepaid, this date, as follows: E.C. Snyder, Inc. 250 South 18`h Street Harrisburg PA 17105 January LS. 2004 - 0? Ar, (&- - C. Grainger B an Estoblished 1911 ARCHITECTURAL WOOOWORK 00 BID PROPOSAL Quote N09428.8 TO: Fee$er$ Fr>odS 9/13/95 Ph- +564.4036 Fax 558.7458 RE; Lester XUler Res. -Nhllwork ATTN: Bob Hunter GENT- LE rvlE.-y: WE PROPOSE TO FURNISH THE NECESSARY MILLWORK TO COMPLETE THIS PROJECT Af;C;pRDIIrG TO THE PLqNS\'D SPECIFICATIONS NS OF THE ARCHI'CECT'S. DRAW I.NIGS DATED: N;A SPECIFICATION NOS.: 1 SECTIONS: To Match Existing As Req'd. ADDEND(nI NOS.: N/A FOR THE SUM OF: $33,859.00 FOR THE ABOVE PROJECT. PLUS SALES TAX AS PER AT1`ACHLi) SCOPb OF' WORK TERMS Price is flood for thirty days which then may Acce be subject for review pfanee of thiv propos.yl must be submitted ore ntion by written Nte ofpa?7nent allowed Purchase order No verbal approvals for chin Changes to work in des will be accepted, all No back Progress must be submitted and a approvals must be submitted in writing, y Id will be accepted without written notifi etioe in writin g before work can continue. 'R F APPRECI.4TE THE UPpURTUNI?yTU ANp IIUI'E TO FURNISH IT TO YOU IN P HE UTE YOUTHS MILLTI' t FUTURE. ORKF) F R THLS PRQIECT pit rr' ? THAN U G ? I ,ciiiii p ?EF $' i'S Zw C r levee C. smith " ssGl ?rZA11 So , (??.? EstimAtor ?;?ii k'2 a t3v r, /Op 11)1f I E, C, Snyder Inc. I -1- '9c lp tXT 0 01:07 H E C SM(DER. IIIC. izw Established 1911 SCOPE OF WORK RE: Lester Miller Res Millwork Bob Hunter 0 WOODWORK an 9/13/9.5 P. 3.'4 Included in bid G UOW x09428•S IN THIS ESTIMATE WE INCLUDE: 1 4 3 8 J (2) Exterior Vlahog. louvers w,/ casing (sent loose} and screen (2) Exterior.Vahog. Shutters to match (no hardware) All exterior- verticle grain, clear, all heart Redwood siding to match All exterior Mahog. trim, fascia, sills, brick mould, casing and mullion covers @ wi.ndow,3 and doors, soffit and large quater round to under soffit all to match NOTE : All items sent loose for field fitting and attachment (7) Double hung widow units w/ 1/2" clear annealed insulated glass NOTE : All trim to be sent loose to jobsite , for field fitting and attachment (3) Mahogany frames ® fixed door units (dadoed only) NOTE : All trim to be sent loose to jobsite , for field fitting and attachment (3) Mahogany doors w/ 1/2" clear tempered insulated glass NOTE . No fitting or prepping of doors for weatherstrip or weatherstrip (2) transom units w/ frames and 1/2" clear annealed insulated glass NOTE : Mahog. transoms are installed in same species frame sv/ same species wood stops and all trim sent loose for field fitting and attachment All W, fine interior base, chair rail, stools, extension jambs, casing and mullion covers @ doors and windows u.,,.. ,'.,x ?ztcrv o?su' .Y.ilerl S'ee ya ce Mn.enrCF.le. u :h 1 d:h S r. Page 2 Of 3 Embiished 1911 ARCHITECTURAL WOODWORK ard SCOPE OF WORK Excluded /frilly;. bid RE: Lester .Miller Res. Quote #09428•S 9/13/95 Millwork Bob Hunter WE DO NOT INCLUDE: Installation of millwork and/or wood doors Factorv finishing or painting of millwork, unless otherwise noted Me Cal louvers and hardware for wood doors Framing, furring, and blocking for the installation of millwork Insulation Tack-able surfaces, tac:kboards, and marker boards Handrail brackets for wood handrails Assembly, machining, and prehanging of wood doors in wood frames Sinks nor cutouts for sinks unless otherwise noted Wood shake shingles (UNLESS OTHERWISE NOTED) Page 3 of 3 5oum ^8rr 5creec / P.o, 0cx 1833 / Hcrrsocrg. PA 171C5 (717) 232.4133 • Fax: (717) 232-2189 OC7,12 '9'5"'09:27 MURRAY ASSOC fiaX NO 7172°L 4 1291 I I C caa N _ ob ?' x C m p 0 m r' a r 1 3 N I ? I D I ? f I Z c I .. ? T- ii t`• IAA 4 F ?4 ?I a N S Ir;llll P.1 ,, {a m 4!O" 8! Ifi/4 If7?8': a I r r,f OCT 12 '95 013:29 MURRAY ASSOC FAX NO 717 234 1201 P.3 d Qb b^ M rR *_0I, z,. b I I- I I I I I I I I i ? o r I T- I lr ? I m I I -n ? I it ti rt I H In W ors ? xUly ?x. I T. 0 M-a 114" -'r,44 a -P 8 'Ef rV0 A .`rn .. *ro a?- 3? ? ? N n ^/ u n u. - .4 OCT 12 '95 09:28 MUR IAY 11550C FA=X- NO 717 234 12011 rn m p r m0 m? T- r m n r Irn -P ? -D c1 T _T L r? II II I t I I I I II IN I I ?x I ;.u I I? II I II II I i II I I I I I io aF ??? u. A r %A n -vim ~ u A m n• n P L ` (1 0 3 u 9SCQCtthed 14 WDODWTMK Bob Hunter- I am respoudmg to your phone call on 12/9/02, regarding the replacement ofrotting 1xindows and or doors. I am sorry I was not able to got back to you immediately, forlunala:ly' for us .i am very busy. I would like to set up a time next week when I could meet someone at Lester Miller':; resirence, to see what needs to be replaced. At this time it looks like we shi idd be able to meet vour schedule of early Februury 2003. I'nope this letter satisfies your needs for now. Please let me know what dates and times would be good next week. C Sincerely, ter Z 1. Keith 12oher R? 12/11/02 F t 'Im"k "treat, PQ Box 1833, Harrisburg, PA 17105 V717-90J-3447 F717-232-2189 ?1YL+lR^L•?S'n?PYS?.Qr?m 11 C.r t `YI (? .; '-? i w?_ fSl r- N _' j'i7 U C? i ! --ca ? , ` ? _._ ? :` "? in ca a `-{ N -`? ?, -< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEESERS, INC., and LESTER S. MILLER, JR., Plaintiffs V. Civil Action No. 03-6273 E. C. SNYDER, INC., Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT Defendant, E. C. Snyder, Inc., by its undersigned attorneys, preliminarily objects to Plaintiffs' Complaint pursuant to Pa. R.C.P. 1028 as follows: 1. Plaintiffs, Feesers, Inc., and Lester S. Miller, Jr., initiated this action by filing a Writ of Summons on December 2, 2003. Subsequently, on or about January 15, 2004, a Complaint was filed and served. A true and correct copy of the Complaint is attached as Exhibit "A". 2. The complaint alleges, in summary, that Defendant entered into a contract with the Plaintiffs to provide windows, doors and other items of architectural millwork, and breached its contractual obligations under theories including breach of warranty, fraud and unfair trade practicer. FOR INSUFFICIENCY OF PLAINTIFF LESTER S. Two 3. Defendant incorporates by refe:fence the averments of Paragraphs 1 through 2 above, as if set forth herein at length. 4. Plaintiffs' Complaint names as Plaintiffs a corporation and an individual. 5. Exhibit A to Plaintiffs' Complaint shows that the contract on which the Complaint is based was entered into and signed by the corporation, Feesers, Inc., and not the individual, Lester S. Miller, Jr. 6. Defendant preliminarily objects on the grounds that Lester S. Miller, Jr., the individual Plaintiff, is not in privity with Defendant and has no cause of action against Defendant. WHEREFORE, Defendant respectfully requests this Court to grant its Preliminary Objection by way of demurrer and dismiss all counts of Plaintiffs' Complaint as to individual Plaintiff Lester S. Miller, Jr. PRELIMINARY OBJECTION FOR FAILURE TO STATE A CLAIM (Count Three) 7. Defendant incorporates by reference the averments of Paragraphs 1 through 6 above, as if set forth herein at length. 2 8. In the Complaint, Plaintiffs charge Defendant with violation of the Pennsylvania Unfair Trade Practices Act, 73 Pa. Stat. Ann. §201-1 et. seq. 9. Defendant preliminarily objects to Count Three of Plaintiffs' Complaint on the ground that it improperly states a claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Act, in that individual Plaintiff Lester S. Miller, Jr., is not a party to any contract with Defendant, as previously stated herein, and Feesers, Inc., is nowhere alleged in the Complaint to have been subjected to unfair trade practices and deceptive dealing by Defendant. WHEREFORE, Defendant respectfully requests this Court to grant its Preliminary objection by way of demurrer and dismiss Count Three of Plaintiffs' Complaint. Dated: h? 05--, -30 -- By: Respectfully submitted, y T. tRcGuire, Esquire ey I.D. #73617 las L. Casssel Attorney I.D. ##92895 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorneys for E. C. Snyder, Inc., Defendant 3 CERTIFICATE OF SERVICE I hereby certify that I have served the foregoing Preliminary objections upon the following party by U. S. Mail, first class, postage prepaid, this date: C. Grainger Bowman, Esquire Kirkpatrick & Lockhart LLP 240 North Third Street Harrisburg, PA 17101-1507 Date: -T 05-12/83079-1 4 t'? t .. ;; 2 c:? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEESERS, INC. AND LESTER S. MILLER, JR., Plaintiffs V. E. C. SNYDER, INC., Defendant CIVIL ACTION NO. 03-6273 CIVIL TERM JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and. a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or 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, GO TO OR TELEPHONE THE OFFICE; SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despuds de la notificaci6n de esta Demanda y Aviso radicando personalmente o per medio de un abogado una comparecencia escrita y radicando en la Corte per escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo per cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado per el demandante puede set dictado en contra suya 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, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLI; QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAR) COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 C. Grainger Bow& , Esquire PA Super. Ct. No. 15706 KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP 230 North Third Street Harrisburg, PA 17101-1507 T: 717-231-4500 F: 717-231-4501 Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEESERS, INC. AND LESTER S MILLER, JR., Plaintiffs CIVIL ACTION NO. 03-6273 CIVIL TERM V. E. C. SNYDER, INC., Defendant JURY TRIAL DEMANDED FIRST AMENDED COMPLAINT Plaintiffs Lester S. Miller, Jr. and Feesers, Inc., by and through their attorneys Kirkpatrick & Lockhart Nicholson Graham, hereby files this first amended complaint against E. C. Snyder, Inc., Defendant, and in support thereof avers as follows: Plaintiff Lester S. Miller, Jr. ("Miller"), an adult individual, resides at Locust Point Road, Silver Spring Township, Cumberland County, Pennsylvania. Miller is a consumer. 2. Plaintiff Feesers, Inc. ("Feesers"), a corporation which is owned 100% by Miller. Feesers has its principal place of business at 5561 Grayson Road, Harrisburg, Pennsylvania. Bob Hunter is employed full time by Feesers and often acts as an agent for Miller in Miller's personal business matters. 3. Defendant E. C. Snyder, Inc. ("Snyder"), a corporation, maintains offices at 250 South 18`h Street, Harrisburg, Pennsylvania. Snyder is a contractor furnishing services and installing millwork products for consumers, including Miller. 4. Snyder, by and through its representative Steven C. Smith, sent a proposal containing a price term of $33,859.00 to Miller for Snyder's furnishing of specified millwork to Millers' personal residence on Locust Point Road, Cumberland Country, Pennsylvania. Snyder's HA-154305 v2 proposal was dated September 13, 1995. Snyder's proposal was delivered to Bob Hunter (at Feesers' address), because Snyder knew that Bob Hunter was acting as Miller's representative for the purchase of millwork on Miller's residence. 5. As Miller's agent, and at Miller's direction, Bob Hunter accepted the Snyder proposal for Snyder to furnish the specified millwork to Miller's residence. Accordingly, in accordance with the Snyder proposal and the Miller acceptance, Miller and Snyder entered into an agreement ("Agreement") whereby Snyder agreed to furnish millwork for Miller's residence. The Agreement includes a. the bid proposal (pagel of 3) b. scope of work (page 2 of 3 and page 3 of 3) C. Snyder's shop drawings (the final 3 pages attached). A true copy of the Agreement as described above is attached hereto and incorporated herein as Exhibit A. Specifically, the Agreement provided that Snyder agreed to furnish specified millwork windows at the agreed upon price to Miller at the Miller residence on Locust Point Road in Silver Spring Township. 8. Snyder's shop drawings were based upon scaled drawings originally prepared for Miller by Murray Associates Architects (the "Murray Drawings"). The Murray Drawings clearly indicate the subject matter pertains to "Mr. and Mrs. Lester S. Miller Jr. - RD#1 Mechanicsburg, Pa." A true copy of the Murray Drawings, in reduced form, is attached hereto and incorporated herein as Exhibit B. 9. The Agreement required Snyder to furnish windows to Miller in accordance with specifications for the windows. The specifications required Snyder to provide windows with millwork made of mahogany wood. 10. Mahogany wood is a high quality and dense wood, which has properties which guard against wood rot. The purpose of Miller specifying mahogany wood for the windows was to have a high quality wood product in the windows for his residence. 11. Snyder furnished windows to Miller. 12. Miller paid Snyder for the furnishing of the windows. 13. At the time of payment by Miller to Snyder, Miller believed that the windows actually furnished by Snyder to Miller were furnished by Snyder in accordance with the specifications. 14. To the contrary, and unbeknownst to Miller at the time, the windows actually furnished by Snyder were materially not consistent with the specifications. At the time of Snyder's furnishing of the windows, Snyder, or its agents and representatives, concealed the fact that the windows furnished to Miller were not made of mahogany. 15. Snyder furnished windows contrary to the specifications in the following particular. Snyder furnished windows made of pine wood, which did not have properties which guard against wood rot. 16. Snyder did not inform Miller, or Miller's agent, or any other representatives of Miller that the windows were not in accordance with specification. 17. Snyder did not inform Miller, or Miller's agent, or any other representatives of Miller, that the pine wood had been substituted by Snyder for mahogany wood. 18. Snyder made the substitution of pine wood without authority from Miller or anyone acting on Miller's behalf. 19. The pine wood in the windows that were originally furnished by Snyder did rot. Miller did not expect rotting to occur, because Miller had specified mahogany for his home's windows. It was only after the rotting took place that Miller learned that the windows were not made of mahogany wood. 20. Miller, through his agent and representatives, brought the fact of the non- conforming wood windows to the attention of Snyder by showing Snyder the rot. 21. On December 11, 2002, Snyder assured and represented to Miller that Snyder would replace the wood windows that did not conform to the specifications. Snyder set a tentative schedule for replacing the windows for February 2003. The representations and schedule were set forth in a writing dated December 11, 2002. A true copy of the writing is attached hereto and incorporated herein as Exhibit C. 22. This assurance and representation from Snyder to Miller constituted a warranty to Miller that Snyder would replace the windows and correct the problem created by Snyder's non- conformity with the millwork specifications. 23. In 2003, Snyder made some efforts to replace some windows, but Snyder's efforts were not sufficient because the windows continue to fail. Further, Snyder's efforts did not undertake to correct all of the "rotting" problems caused by Snyder's failure to conform to the specifications calling for mahogany wood. 24. Further, on many occasions in 2003, Miller's agent and other representatives placed repeated calls to Snyder's representatives seeking the status of Snyder's plan of action to correct the non-conforming windows. The representatives of Snyder failed to return calls regarding Snyder's plan of action. 25. Additionally, wooden mullion grillwork was removed by Snyder from the Miller residence, on the promise that the grillwork would be returned in two weeks' time, and the grillwork was not timely returned, contrary to the interests and demands of Miller. 26. In 2003, Snyder repeatedly promised to Miller that Snyder would replace windows at the Miller residence in order to make the Snyder windows conform to the original specifications calling for mahogany wood, and Snyder repeatedly faiP.ed to make good on its promises to Miller. 27. Snyder's undertakings regarding these non-conforming windows has been a history of failing to conform to the original contract specifications, a history of willfully ignoring the failing non-conforming wooden window systems, a history of failing to act promptly to solve the problem, a history of promising to Miller that Snyder would make good on the non- conforming windows by the delivery of conforming windows, and a history of engaging in a pattern of deception and delay in delivering the window systems to Miller, and a history of disregarding Snyder's own promises to correct. 28. Miller has been subjected to unfair trade practices and deceptive dealing by Snyder in the following particulars: a. Snyder has repeatedly failed to provide Miller with the windows as originally specified; b. Snyder has deceived Miller by concealment, in that Snyder's originally furnished windows were non-confirming, but were painted to cover their non-conformity; C. When Miller demonstrated that the windows were both non-conforming and failing, Snyder made promises to replace and correct and Snyder has failed to make good on its promises; d. Snyder has unreasonably and irresponsibly delayed and failed to reply to calls of Miller regarding the status of replacing the non-conforming windows; 5 e. Snyder has unreasonably delayed in returning, wooden mullion grillwork to the Miller residence, despite promises to promptly return the grillwork, causing Miller great annoyance and inconvenience; f Snyder has engaged in a pattern of deception and delay notwithstanding repeated Snyder promises that Snyder would replace the failed windows with conforming windows. 29. Miller has fully performed all conditions precedent to the hinging of this action. ALTERNATIVE PLEADING (Third Party Intended Beneficiary) 30. Alternatively, Miller is a third party intended beneficiary of the Agreement negotiated by Feesers' employee, Bob Hunter, and Snyder. 31. To the extent the Agreement is deemed to be between Feesers and Snyder, Bob Hunter, at all times relevant, acted as an agent of Feesers and on behalf of and at the behest of Miller. 32. Miller was a disclosed principal because Snyder knew or should have known from the Murray Drawings in Exhibit B and Hunter's own representations that the Agreement was for work to be performed at the personal residence of Miller. 33. Accordingly, both Feesers and Snyder intended that the work performed under the Agreement would benefit Miller. Feesers intended to give the benefit of Snyder's performance to Miller. 34. The face of the Agreement in Exhibit A clearly refers to the work to be done as "Re: Lester Miller res. - Millwork." 35. Even if Snyder believed the Agreement was with Feesers, Snyder knew or should have known that Miller was the ultimate beneficiary of the Agreement. COUNT ONE (Breach of Warranty) 36. The above paragraphs 1 through 35 are incorporated herein by reference. 37. Snyder has committed a series of material breaches of warranty of quality by not furnishing windows conforming to the express specifications that Miller required of Snyder. Specifically, the wooden windows were specified to be of mahogany wood material, and they were actually made of pine wood material (a non wood rot resistant material). The non- conformity was a material breach of warranty. 38. Notwithstanding that Snyder finally agreed and promised to Miller that the windows would be replaced because they were non-conforming, Snyder materially breached this warranty to Miller because Snyder did not cause all windows to conform. Snyder did not replace windows in a timely fashion, but instead made repeated promises of replacement that Snyder did not keep, or in the alternative, never intended to keep (based upon Snyder's non-responsiveness to Miller's repeated calls for correction). 39. Snyder materially breached its warranty to Miller by failing to keep to his schedule for replacement and by failing to act timely or responsibly to replace and correct the failing and deficient windows brought to Snyder's attention by Miller. 40. Snyder materially breached its warranty of quality to Miller by supplying pine wood windows that were defective, because they were susceptible to wood rot. Wood rot, in fact, occurred to Miller's windows. 41. Snyder materially breached the implied warranty of good faith and fair dealing by supplying non-conforming materials to the Project, by dealing with Miller deceptively, and by not acting promptly to make good on Snyder's promise to replace and correct. 42. Miller has suffered or will suffer damages in excess of $35,000 in replacing non- conforming windows as a consequence of Snyder's breach. 7 WHEREFORE, Miller and Feesers demand judgment in their favor and against Snyder in the sum in excess of $35,000, plus interest, costs, attorney's fees, and such other relief as the Court shall grant. COUNT TWO (Fraud) 43. The above paragraphs 1 through 42 are incorporated herein by reference. 44. Snyder supplied pine wooden windows on the Miller residence, which Snyder knew or should have known did not conform to the specifications required for the Project. Alternatively, Snyder, by its own inexcusable failures and with reckless disregard for its customer Miller, knew or should have known that the originally furnished pine wooden windows did not conform to the specifications required for the Project, and Snyder did not take immediate and timely steps to replace the windows when it was called upon to correct the window problem. Instead, with disregard for Miller, Snyder made repeated promises about correcting the problem, and then did not carry out the promises. 45. Snyder intentionally concealed or suppressed a material fact in the representations it made to Miller regarding the quality of the wood in the windows it supplied to the Miller residence. Snyder was under a duty to disclose the material fact of the non-conformity to Miller, and Snyder did not do so. 46. Snyder failed to respond and perform replacement of windows when correction was demanded by Miller. 47. The concealments and failures of Snyder worked to the detriment of Miller. 48. Snyder made false promises to Miller regarding the schedule of replacement and correction with the intent to defraud Miller, because Snyder did not carry out his promises, nor take reasonable steps to do so. 49. Miller was unaware of the falsity of the representations or of Snyder's concealment or false promises when they occurred, and Miller acted in justifiable reliance of the representations, concealments or false promises to Miller's detriment, that is to say, Miller suffered actual damages. 50. Based on the pattern of behavior of Snyder, it is believed and therefore averred that Snyder never intended to correct the windows to meet the specifications as Snyder had promised to do. 51. Snyder's conduct was knowing, willful and in bad faith, and warrants the imposition of punitive damages. WHEREFORE, Miller and Feesers demand judgment in their favor and against Snyder in the sum in excess of $35,000, plus interest, costs, attorney's fees, punitive damages, and such other relief as the Court shall grant. COUNT THREE (Unfair Trade Practices) 52. The above paragraphs 1 through 51 are incorporated herein by reference. 53. At all times relevant to this Complaint there existed in. Pennsylvania the Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1 et seq. (the "Law"). 54. Snyder knowingly or recklessly gave Miller the false impression that Snyder would furnish mahogany wood windows for the Miller residence, and that these mahogany wood windows would be rot resistant. 55. When Miller learned of the non-conforming windows and informed Snyder, Snyder continued to deceive Miller by promising to provide conformity, but then failed to make the windows conform to the specifications. 56. Snyder knew or should have known that Miller would rely to Miller's detriment based upon Snyder's representations. 57. Based on the foregoing, Snyder engaged in fraudulent or deceptive conduct which created a likelihood of confusion and misunderstanding on the part of'Miller, contrary to the Law 58. Snyder's fraudulent or deceptive conduct proximately caused Miller to sustain damages. WHEREFORE, Miller demands judgment in his favor and against Snyder in the sum in excess of $35,000, plus interest, costs, statutory damages, attorney's fees, punitive damages, and such other relief as the Court shall grant. C. Grainger Bowen squire PA Super. Ct. No. 15706 KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP 240 North Third Street Harrisburg, PA 17101-1507 T: 717-231-4500 F: 717-231-4501 Attorneys for Plaintiffs Dated: February 14, 2005 10 r Q 9® Estnbltslled 1911 ARCHITECTURAL WOODWORK r+ BID PROPOSAL Quote 009428•S 9113185 TO- Feesers Foods RE: Lester Miller Res. Ph. 564.4635 Fax 558.7458 Nfillavork ATTN; Bob :Hunter GENTLE 141EN: WE PROPOSE TO FURNISH THE NECESSARY MILLWORKTO COMPLETE THIS PROJECT ACCORDING TO THE PLANS AND SPECIFICATIONS OF THE ARCHITECT'S. DRAWINGS DATED: NIA SPECIFICATION SECTIONS: To Match Existing As Rep'd. NOS.: 1 ADDENDU;&I NOS.: NIA FOR THE SUM OF: $339$59.00 PLUS SALES TAX FOR THE ABOVE PROJECT AS'PER ATTACHED SCOPP, OF WORK TERMS Price is ;cod for thirty days which then may be subject for review Acceptance of this proposal must be submitted by written purchace order No rntantinn of paymemt allowed No verbal approvals for changes will be accepted, all approvals must be submitted in writing. ++ Charges to work in progress must be submitted and approved in writing before work can continue. No back charges will be accepted without written notification. W'F, APPRECIATE THE OPPORTUNITY TO QUOTE YOU THE MILLW0RKFQfi THIS PRWECT ALVl) 60PE TO FURNISH IT TO YOU IN THE FUTURE. ( TH 9N U, EESkQ_S ?w C teven C. Zimith ?"?" ?? 5SG 1 1n rZ A So ?? ??c +? o Estimator E.C. Snyder Inc. sr3vrD? 'top '?C7 LIZ 195 01:07PI1 E C SNIDER, IIiC. fswbfisnaa 4951 P.3'4 IWa wooowoaK an SCOPE OF WORK Included in bid RE: Lester Miller Res. quote #o9423-S 9/13/95 Millwork 1.3ob Hunter IN THIS ESTIMATE WE INCLUDE: 1 (2) Lxterior _-Mahog. louvers w,i casing (sent loose) and screen i.2) Exterior Vahog. Shutters to match (no hardware) Ie All exterior verticle grain, clear all heart Redwood siding to match 4 All exterior Mahog. trim, fascia, sill;, brick mould, casing and mullion covers 9 windows and doors, soffit and large quater round to under soffit all to match NOTE : All items sent loose for field :Fitting and attachment 5 (7) Double hung widow units w/ 1!2" clear annealed insulated glass NOTE : All trim to be sent loose to jobsite , for field fitting and attachment G (3) Mahogany frames Q fixed door units (dadoed only) NOTE : All trim to be sent loose to jobsite , for field fitting and attachment 7 t3) Mahogany doors w/ 1/2" clear tempered insulated glass NOTE : No fitting or prepping of doors for weatherstrip or weatherstrip 8 (2) transom units w,, frames and 1/2" clear annealed insulated glass NOTE : Mahog. transoms are installed in same species frame w/ same species wood stops and all trim sent loose for field fitting and attachment 9 All W. Pine interior base, chair rail, stools, extension jambs, casing and mullion covers e^ doors and windows i+s arcs tend Ju4ad 8u tii c? Mo?.aricatr u?r rse.,d<. <?<r e Page 2 of 3 i Established 1911 ARCHIT[CNRAI WOODWORK an 49 SCOPE OF WORK Excluded Fran;. bid RE: Lester :Miller Res. Quote M09428•S 9/13/90 Millwork Bob Hunter WE DO NOT INCLUDE: Installation of millwork and/or wood doom Factory finishing or painting of millwork, unless otherwise .noted Xreial louvers and hardware for wood doors Framing, furring, and blocking for the installation of millwork Insulation Tack-able surfaces, tackboards, and marker boards Handrail brackets for wood handrails Assembly, machining, and prehanging of wood doors in wood frames Sinks nor cutouts for sinks unless otherwise noted Wood shake shingles (UNLESS OTHERWISE NOTED) !IY } G I Page 3 of 3 50urn "8m 5creec ! P.Q. 0rx 1.8-13 / Herrsourg, PA 171C5 i -1717) 232.4133 • Fax: (717) 232.2189 a ? 8/L I1 ut I Y C$, Z dy? 3N IMIJI Z•A W z ti3 w J X d iy I 1 8 •?s I I ` .' II I I ; i ,u IL I I ? V~t I rIN 1 I a _?? L + tI d I j o- I Q D II j 3CE W z I I w 3z F7 J W i v` ap e 3 , > ? =?'? e a 3 ? D 0 ?R r .?. I- na lp J - a I) TL TL ON X TO T- 4 I , UJ OOSSH A,Ua,' f w 2,2 :60 56. •zT 170 lT'? r u. 3 Z Q ?wW ?Q X LL? I l II I I (? u I l t? z I I uL ? I I I I I c` I I di I ? Il I' I I t I I I a, I. I I,a-,* P*A Qo W , J ?. tU V. J 11.1 Q 4 ?a. I,. t TR7i bR7 J. LJ. nN XH4 ')o.SH AHx.\rw A7!ro cc. 7r inn .41 1, 1 N Z w rJ aMr pp? d n? ulw it ?. n,. z . 3N ? Uv i 11 v 3W 9n W pN n 3? . Im =wi- i ?I ti' W F r t 44 w = uxi £ Q 3 ? _ c u? o- 2'd S? ?F 1 I I i i I? II II ul o I 1 4u, ? I I I I I { t it -I ? it __ I I w _ J- -I 0 z T 1 a. Q= u W d W J ?d - v U1 ?W ?KW W W ? Z0 u1 isi N :.. iZ021 GE2 LIL ON Xdj DOb_.7 ,lFiJbf1W 82:60 S6.1 2T 1J0 ?.??ms> r.?? W 7`21 U????'167J ?o,„e=- ?1 1 4 Zf U?-f'W L ih?l^SJW'ZW g7,^9ois-3a a1 ?ne.»'no?.iE y ,+o'._mv i it e I e I r J ,z? i._? I m6 0 z' s 3 q, a: ?, u ? nc; E g ? e 3 Fa k r c''' , 4 e? e s Ne v. fa U' d y ' Nle L .° J N? s 4 i OI,e No a- c: r 9SCO13 Ythod 19 ZMCC? WOODWORK Bob Huntcr, 1 atn cesponclinl; to your phone catl on 12!9/02, regarding the tepiacemdrt of* rotting windows and or doors. I am sorry I was not able to get back to you immediately, fortunately for Us I em very busy. I would like to set up a time next week when I could tnect someone of Lester Milj'er's resirence, to see what needs to be replaced. At this time it looks like; we should be able to meet your schedule of early February 2003_ I'nope this letter satisfies your needs for now. Please- let me know what dates and times would be good next week. $incere4y, ? ,r 11, Keith Rnher 52(11/02 d Jimpok" 06.5,trect, PQ Box 1813, Harrisburg, PA 17105 V71?-90i-3447 F ?17-232-2189 WM,Q MP er.cQm .1 02/04/2005 18:12 5615403959 LESTER MILLER PAGE 01 u[!,141VO io:ty r.+& dpig4 vi ne.u rAA nuU,w ??+?•?-- VC.?ION 1, Miller, in my individual capacity and as sole owner of Feesers, Inc., hereby verify that the f?regoing facts are true and correct to the best of my knowledge or information and belief. I un6erstand that this verification is made subject to the penalties of 18 Pa. C.S. 4 49D4 (relating to unswom falsifications to authorities). Date:/ Lester S. Miller HA-1 SCVJ5 vY CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing First Amended Complaint on the following via United States mail, first class postage pre-paid, the 14th day of February, 2005. Jeffrey T. McGuire, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 HA-154687 vI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEESERS, INC., and LESTER S MILLER, JR. Plaintiffs V. E. C. SNYDER, INC., Defendant CIVIL ACTION NO. 03-6273 NOTICE TO PLEAD TO: Feesers, Inc., and Lester S. Miller c/o C. Grainger Bowman, Esq. Kirkpatrick & Lockhart, LLP 240 North Third Street Harrisburg, PA 17101-1507 YOU ARE HEREBY NOTIFIED, that Preliminary Objections set forth herein contain averments against you to which you are required to respond within twenty (20) days after service thereof. Failure by you to do so may constitute an admission. By: Date: ?j - - CALDWELL & KEARNS Douglas L. Cassel, Esquire Attorney I.D. # 92895 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorneys for Defendant E.C. Snyder, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEESERS, INC., and LESTER S. MILLER, JR., Plaintiffs CIVIL ACTION NO. 03-6273 V. E.C. SNYDER, INC., Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' FIRST AMENDED COMPLAINT AND NOW, comes Defendant, E.C. Snyder, Inc., by and through its attorneys, Caldwell & Kearns, and files the within Preliminary Objections to Plaintiffs' First Amended Complaint; and in support thereof, avers as follows: Plaintiffs, Feesers, Inc., and Lester S. Miller, Jr„ initiated this action by filing a Writ of Summons on December 2, 2003. 2. Subsequently, on or about January 15, 2004, a Complaint was filed and served. On or about January 28, 2005, Defendant, E.C. Snyder, Inc., filed Preliminary Objections to Plaintiffs' Complaint. 4. In response to Defendant's Preliminary Objections, on or about February 14, 2005, Plaintiffs filed a First Amended Complaint. A true and correct copy of Plaintiffs' First Amended Complaint is attached as Exhibit "A." The First Amended Complaint alleges, in summary, that Defendant entered into a contract with the Plaintiffs to provide windows, doors and other items of architectural millwork, and breached its contractual obligations under theories including breach of warranty, fraud and unfair trade practices. PRELIMINARY OBJECTION FOR FAILURE TO STATE A CLAIM (Count Three) 6. Defendant incorporates by reference the averments of Paragraphs 1 through 5 above, as if set forth herein at length. 7. In the First Amended Complaint, Plaintiffs charge Defendant with violation of the Pennsylvania Unfair Trade Practices Act, 73 Pa. C.S. §201-1 et seq. S. Defendant preliminary objects to Count Three of Plaintiffs' First Amended Complaint on the ground that it improperly states a claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Act, in that individual Plaintiff Lester S. Miller, Jr., is not a party to any contract with Defendant, as previously stated herein. Defendant preliminary objects to Count Three of Plaintiffs' First Amended Complaint on the ground that it improperly states a claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Act, in that the Act does not provide for third party beneficiaries to maintain a cause of action for violation of the Act. 10. Plaintiff Lester S. Miller, Jr., was not a party to the contract, and thus was not a person who purchased or leased goods or services for personal, family or household purposes. WHEREFORE, Defendant E.C. Snyder, Inc., respectfully requests that this Honorable Court SUSTAIN its Preliminary Objections to Plaintiffs' First Amended Complaint by way of demurrer and dismiss Count Three of Plaintiffs' Complaint. Respectfully submitted, CALDWELL & KEARNS i By: Jeffrey,T McGuire, Esquire Attorney I.D. No. 73617 Douglas L. Cassel, Esquire Attorney I.D. No. 92895 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorneys for Defendant E.C. Dated: - 3A S Snyder, Inc. 05-12/85252 CERTIFICATE OF SERVICE I hereby certify that I have served the foregoing Preliminary Objections upon the following party by U.S. Mail, first class, postage prepaid, this date: C. Grainger Bowman, Esquire Kirkpatrick & Lockhart, LLP 240 North Third Street Harrisburg, PA 17101-1507 Date: CALDWELL & KEARNS 44?? L 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEESERS, INC. AND LESTER S MILLER, JR., CIVIL ACTION NO. 03-6273 Plaintiffs V. E. C. SNYDER, INC., Defendant JURY TRIAL DEMANDED PLAINTIFFS' FIRST AMENDED COMPLAINT Plaintiffs Lester S. Miller, Jr. and Feesers, Inc., by and through Kirkpatrick & Lockhart Nicholson Graham, pursuant to Defendant's files this Answer to Defendant's Preliminary Objections to First Amended support thereof avers as follows: 1. Paragraph 1 through Paragraph 4 is a correct restatement of the of the case. 2. Denied. The First Amended Complaint does not need to be sur Paragraph 5, and it speaks for itself. 3. Paragraph 6 does not require a response. TERM and in history in HA-156345 vl 4. Paragraph 7 is correct that Plaintiffs charge Defendant with a violation) of the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 Pa. C. S. Sec. f 01-1 et seq. 5. Paragraphs 8 and 9 are Defendant's contentions, not facts, and they conclusions of law. all of which are denied. 6. Paragraph 10 is a conclusion of law, which is denied. WHEREFORE, Plaintiffs request that Defendant's Preliminary Objections be and Defendant be required to plead to Plaintiffs' First Amended 0 C. Grainger Bownr ad, squi PA Super. Ct. No. 157 6 KIRKPATRICK & LO KH NICHOLSON GRAHAM 240 North Third Street Harrisburg, PA 17101-1507 T: 717-231-4500 F: 717-231-4501 Attorneys for Plaintiffs Dated: March 25, 2005 -2- CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing, to Defendant's Preliminary Objections to Plaintiffs' First Amended Complaint on the via United States mail, first class postage pre-paid, on the 25th day of March, 2005. Jeffrey T. McGuire, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 C. Grainger Answer HA-156345 vl _„ ,,i ? ':1 ? '.J ri __. ?JJ 1 ? I C.'1 l.i PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption tnust be stated in full) FEESERS, INC. and LESTER S. MILLER, JR. (Plaintiff) vs. E. C. SNYDER, INC. (Defendant) No. 03-6273 July Term I. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Defendant -- Identify counsel who will argue cases (a) for plaintiff: C Grainger Bowman __-_--? (Name and Address) 240 North Third Street Harrisburg, PA 17101 (b) for defendant: Jeffrey T McGuire (Name and Address) 3631 North Front Street Harrisburg, PA 17110 I will notify all parties in writing within two days that this case has been listed for argument 4. Argument Court Date: Sure J sl e .a ?• _ Pnnl your name _E-C. Sny-der-,-Inc- Attorney for Date ;?? ``: i f.= ?^? , FEESERS, INC. AND LESTER S. MILLER, JR., PLAINTIFFS V. E.C. SNYDER, INC., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 03-6273 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFFS' FIRST AMENDED COMPLAINT ORDER OF COURT AND NOW, this IS _day of July, 2005, the preliminary objections of defendant to plaintiffs' first amended complaint, ARE DISMISSED. ,5 Grainger Bowman, Esquire For Plaintiffs Xffrey T. McGuire, Esquire For Defendant :sal 1 'Y o? £Q :? IIN 8 ! HT SON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL COVER SHEET FEESERS, INC. and LESTER S. MILLER, JR., Plaintiffs vs. : NO. 03-6273 E. C. SNYDER, INC. Defendant : Defendant's Answer with New Matter Caldwell & Kearns Jeffrey T. McGuire, Esquire Attorney ID# 73617 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 mcuire a clldwellke earns. co in Attorney for Defendant, E. C. Snyder, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEESERS, INC. AND LESTER S. MILLER, JR., Plaintiffs VS. E.C. SNYDER, INC., Defendant. CIVIL ACTION NO. NO. 03-6273 CIVIL TERM NOTICE TO PLEAD TO: Feesers, Inc. and Lester S. Miller, Jr. c/o: C. Grainger Bowman, Esquire Kirkpatrick & Lockhart Nicholason Graham LLP Payne Shoemaker Building 240 North Third Street Harrisburg, PA 17101-1507 YOU ARE HEREBY NOTIFIED that the New Matter set forth herein contains averments against you to which you are required to respond within twenty (20) days after service thereof. Failure by you to do so may constitute an admission. Date: September 20, 2005 92387 CALDWELL & KEARNS By: &Z" Fie cGuire, Esquire y .D. #73617 orth Front Street Harrisburg PA 17110 (717) 232-7661 Attorney for Defendant, E.C. Snyder, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEESERS, INC. AND LESTER S. MILLER, JR., Plaintiffs VS. E.C. SNYDER, INC., Defendant. CIVIL ACTION NO. NO. 03-6273 CIVIL TERM ANSWER WITH NEW MATTER AND NOW, comes the Defendant, E.C. Snyder, Inc., by and through its attorneys, Caldwell & Kearns, and files the within Answer with New Matter; and in support thereof, avers as follows: Admitted only to the extent that the first Plaintiff identified in the caption to this action is Lester S. Miller, Jr. ("Miller"). Answering Defendant is without knowledge or information to form a belief as to the truthfulness of the remainder of the said averment. 2. Admitted only to the extent that the second Plaintiff identified in the caption to this action is Feesers, Inc. ("Feesers"). Answering Defendant is without knowledge or information to form a belief as to the truthfulness of the remainder of the said averment. 3. Admitted, upon information and belief. 4. Admitted in part, Denied in part. It is admitted that Snyder sent a proposal containing a price term of $33,859.00 to Miller for Snyder's furnishing of specified millwork to Miller's personal residence and that the proposal was dated September 13, 1995. The remainder of the paragraph is denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of the remainder of paragraph 4 and the same is thereby denied with strict proof demanded at time of trial. 5. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 5 and the same are thereby denied with strict proof demanded at time of trial. 6. Denied. The document referenced in this paragraph speaks for itself, and any attempts by Plaintiffs to characterize or interpret the same are specifically denied with strict proof thereof demanded at time of trial. Denied. The document referenced in this paragraph speaks for itself, and any attempts by Plaintiffs to characterize or interpret the same are specifically denied with strict proof thereof demanded at time of trial. 8. Denied. The document referenced in this paragraph speaks for itself, and any attempts by Plaintiffs to characterize or interpret the same are specifically denied with strict proof thereof demanded at time of trial. 9. Denied. The document referenced in this paragraph speaks for itself, and any attempts by Plaintiffs to characterize or interpret the same are specifically denied with strict proof thereof demanded at time of trial. 10. After reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 10 and the same are thereby denied with strict proof demanded at time of trial. 11. Admitted, upon information and belief. 12. Admitted, upon information and belief. 13. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 13 and the same are thereby denied with strict proof demanded at time of trial. 14. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 14 and the same are thereby denied with strict proof demanded at time of trial. By way of further answer, Answering Defendant specifically denies any concealment of facts with strict proof thereof demanded at time of trial. 15. Admitted in part. Denied in part. It is admitted that Answering Defendant originally furnished windows made of pine wood. The remainder of this paragraph is denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of this portion of Paragraph 15 and the same are thereby denied with strict proof demanded at time of trial . 16 Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 16 and the same are thereby denied with strict proof demanded at time of trial. 17. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 17 and the same are thereby denied with strict proof demanded at time of trial . 18. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 18 and the same are thereby denied with strict proof demanded at time of trial. 19. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 19 and the same are thereby denied with strict proof demanded at time of trial. By way of further answer, it is specifically denied that all of the pine windows originally furnished did rot and strict proof thereof is demanded at time of trial. 20. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 20 and the same are thereby denied with strict proof demanded at time of trial. 21. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 21 and the same are thereby denied with strict proof demanded at time of trial. By way of further answer, the document referenced in this paragraph speaks for itself, and any attempts by Plaintiffs to characterize or interpret the same are specifically denied with strict proof thereof demanded at time of trial. 22. Denied. The allegations of paragraph 22 contain conclusions of law to which no response is deemed necessary. 23. Admitted in part. Denied in part. It is admitted that Answering Defendant made some efforts to replace some windows. The remainder of Paragraph 23 is denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient 4 as to form a belief as to the truthfulness of the averments of the second portion of Paragraph 23 and the same are thereby denied with strict proof demanded at time of trial. 24. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 24 and the same are thereby denied with strict proof thereof demanded at time of trial. 25. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 25 and the same are thereby denied with strict proof thereof demanded at time of trial. 26. Denied. It is specifically denied that Answering Defendant repeatedly failed to make good on its promises to Miller and strict proof thereof is demanded at time of trial. To the contrary, Answering Defendant made efforts to replace some of the rotting windows and have made it clear to Miller that they are prepared to replace any additional window which shows signs of rot. 27. Denied. The allegations set forth in Paragraph 27 are specifically denied and strict proof thereof is demanded at time of trial. 28. Denied. The allegations of Paragraph 28 contain conclusions of law to which no response is deemed necessary. By way of further answer, the averments of fact set forth in sub paragraphs (a)-(f) are specifically denied with strict proof demanded at time of trial. 29. Denied. After reasonable investigation, Answering Defendant is without sufficient information to determine the truth or accuracy of the averments of this paragraph, and the same are hereby denied with strict proof thereof demanded at time of trial. ALTERNATIVE PLEADING (Third Party Intended Beneficiary) 30. Denied. The allegations of Paragraph 30 contain conclusions of law to which no response is deemed necessary. 31. Denied. After reasonable investigation, Answering Defendant is without sufficient information to determine the truth or accuracy of the averments of this paragraph, and the same are hereby denied with strict proof thereof demanded at time of trial. By way of further answer, the document referenced in this paragraph speaks for itself, and any attempts by Plaintiffs to characterize or interpret the same are specifically denied with strict proof thereof demanded at time of trial. 32. Denied. The allegations of paragraph 32 contain conclusions of law to which no response is deemed necessary. By way of further answer, Answering Defendant is without sufficient information to determine the truth or accuracy of the averments of this paragraph, and the same are hereby denied with strict proof thereof demanded at time of trial 33. Denied. After reasonable investigation, Answering Defendant is without sufficient information to determine the truth or accuracy of the averments of this paragraph, and the same are hereby denied with strict proof thereof demanded at time of trial. 34. Denied. The document referenced in paragraph 34 speaks for itself, and any attempts by Plaintiffs to characterize or interpret the same are specifically denied with strict proof thereof demanded at time of trial. 35. Denied. After reasonable investigation, Answering Defendant is without sufficient information to determine the truth or accuracy of the averments of this paragraph, and the same are hereby denied with strict proof thereof demanded at time of trial. COUNT ONE (Breach of Warranty) 36. Plaintiffs incorporate the above paragraphs 1 through 35 herein by reference. 37. Denied. Paragraph 37 is a legal conclusion to which no answer is required. To the extent an answer is required, after reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 37 and the same are thereby denied with strict proof thereof demanded at time of trial. 38. Denied. Paragraph 38 is a legal conclusion to which no answer is required. To the extent an answer is required, after reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 38 and the same are thereby denied with strict proof thereof demanded at time of trial. 39. Denied. Paragraph 39 is a legal conclusion to which no answer is required. To the extent an answer is required, after reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 39 and the same are thereby denied with strict proof thereof demanded at time of trial. 40. Denied. Paragraph 40 is a legal conclusion to which no answer is required. To the extent an answer is required, after reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 40 and the same are thereby denied with strict proof thereof demanded at time of trial. 41. Denied. Paragraph 41 is a legal conclusion to which no answer is required. To the extent an answer is required, after reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 41 and the same are thereby denied with strict proof thereof demanded at time of trial. 42. Denied. Paragraph 42 is a legal conclusion to which no answer is required. To the extent an answer is required, after reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 42 and the same are thereby denied with strict proof thereof demanded at time of trial. COUNT TWO (Fraud) 43. Plaintiffs incorporate the above paragraphs 1 through 42 herein by reference. 44. Admitted in part. Denied in part. It is admitted that Answering Defendant supplied pine wood windows. The remainder of Paragraph 44 is denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient as to form a belief as to the truthfulness of the averments of Paragraph 44 and the same are thereby denied with strict proof demanded at time of trial. By way of further answer, it is specifically denied that Answering Defendant acted in reckless disregard for its customer Miller. Additionally, it is specifically denied that Answering Defendant did not carry out their promises. Instead, Answering Defendant has already began replacing any rotted windows with mahogany wood and are prepared to replace any additional windows that show signs of rot. Strict proof of Plaintiffs' averments in this paragraph are demanded at time of trial. 45. Denied. Paragraph 45 is a legal conclusion to which no answer is required. To the extent an answer is required, Answering Defendant specifically denies any intentional concealment or suppression of a material fact in its representation to Miller regarding the quality of the wood in the windows it supplied to the Miller residence and strict proof thereof is demanded at time of trial. 46. Denied. It is specifically denied that Snyder failed to respond and perform in the replacement of windows. To the contrary, Answering Defendant has already begun to replace the rotted windows of the Miller residence and is prepared to replace any additional windows that show signs of rot. Strict proof of Plaintiffs' averment is demanded at time of trial. 47. Denied. After reasonable investigation, Answering Defendant is without sufficient information to determine the truth or accuracy of the averments of this paragraph, and the same are hereby denied with strict proof thereof demanded at time of trial. 48. Denied. The averments of this paragraph are specifically denied with strict proof thereof demanded at time of trial. By way of further answer, it is specifically denied that Answering Defendant did not take reasonable steps to replace the rotted windows and strict proof thereof is demanded at time of trial. To the contrary, Answering Defendant has already begun to replace the rotted windows of the Miller residence and is prepared to replace any additional windows that show signs of rot. 49. Denied. After reasonable investigation, Answering Defendant is without sufficient information to determine the truth or accuracy of the averments of this paragraph, and the same are hereby denied with strict proof thereof demanded at time of trial. 50. Denied. It is specifically denied that Answering Defendant never intended to correct the windows. To the contrary, Answering Defendant have cooperated with Plaintiffs requests and have already began to replace any rotted windows with mahogany windows. Strict proof of Plaintiffs' averment is demanded at time of trial. 51. Denied. Paragraph 51 is a legal conclusion to which no answer is required. To the extent an answer is required, Answering Defendant specifically denies that their conduct was knowing, willful and in bad faith and strict proof thereof is demanded at time of trial. To the contrary, Answering Defendant has cooperated in the replacement of the rotted windows and are prepared to replace any additional windows showing sings of rot. COUNT THREE (Unfair Trade Practices) 52. Plaintiffs incorporate the above paragraphs 1 through 51 herein by reference. 53. Admitted, upon information and belief. 54. Denied. It is specifically denied that Answering Defendant knowingly or recklessly gave Miller the false impression that Answering Defendant would furnish mahogany wood windows and strict proof thereof is demanded at time of trial. 55. Denied. The averments of this paragraph are specifically denied. 56. Denied. The averments of this paragraph are specifically denied. 57. Denied. Paragraph 57 is a legal conclusion to which no answer is required. To the extent that an answer is required, Answering Defendant specifically denies the averments of this paragraph with strict proof thereof demanded at time of trial. 58. Denied. Paragraph 58 is a legal conclusion to which no answer is required. To the extent that an answer is required, Answering Defendant specifically denies the averments of this paragraph with strict proof thereof demanded at time of trial. NEW MATTER 59. Answering Defendant incorporates by reference its answers to paragraphs (1) through (58) of Plaintiff's Complaint. 10 60. Plaintiff's causes of action may be barred in whole or in part by Parol Evidence Rule. 61. Plaintiff's causes of action may be barred in whole or in part by the applicable statute of limitations. 62. Plaintiff's causes of action may be barred in whole or in part by the doctrine of accord and satisfaction. 63. Plaintiff's causes of action maybe barred in whole or in part by the doctrine of release. 64. Plaintiff's causes of action may be barred in whole or in part by waiver and/or estoppel. 65. Plaintiff's causes of action may be barred in whole or in part by the Statute of Frauds. 66. Plaintiff's causes of action may be barred in whole or in part by the failure to state an action upon which relief may be granted. 67. Plaintiff's causes of action may be barred in whole or in part by the doctrine of economic loss. 68. Plaintiff's ability to recover damages may be barred due to their failure to mitigate damages. 69. If the Plaintiff sustained damages as alleged in his Complaint, which damages are strictly denied, then the damages were caused by the acts or omissions of entities or individuals over which Answering Defendant had no control, or legal duty to control. 11 WHEREFORE Defendant E.C. Snyder, Inc., respectfully requests this Honorable Court to enter judgment in its favor and against all others. Date: By: submitted: McGuire, Esquire I.D. # 73617 CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 717-232-7661 Attorney for Defendant E.C. Snyder 12 VERIFICATION The undersigned, Robert L. Fackler, hereby verifies that the facts set forth in the foregoing document are true and correct to the best of his knowledge, information and belief and further states that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Robert L. Fackler on behalf of E.C. Snyder, Inc. CERTIFICATE OF SERVICE AND NOW, this 201h day of September 2005, I hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: C. Grainger Bowman, Esquire Kirkpatrick & Lockhart Nicholson Graham LLP Payne Shoemaker Building 240 North Third Street Harrisburg, PA 17101-1507 CALDWELL & KEARNS By: 0512/91754 ?? CJ? i ] ?{ -?` ( ?y T ri-y ?: ij ...r1 j?Ii ?1 1 ? ? t.• ^ ? ?- YY ??, ?? ..--3 ??'? _. rn ?? r.l =-4 - ? ,- rx` Y T IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEESERS, INC. AND LESTER S. MILLER,JR., CIVIL ACTION NO. 03-6273 CIVIL TERM Plaintiffs V. JURY TRIAL DEMANDED E.C. SNYDER, INC., Defendant AMENDED ENTRY OF APPEARANCE Effective August 22, 2005, the address of Kirkpatrick & Lockhart Nicholson Graham LLP and the counsel listed below is: 17 North Second Street, 18th Floor Harrisburg, PA 17101-1507 Our telephone numbers will remain the same. Dated: c l_ /- 3 q4 -? KIRKPATRICK & LOCKHART NI CH SON GRAHAM L C. Grainger Bowkiu? 17 North Second Street, 18th Floor Harrisburg, PA 17101-1507 T: 717-231-5817 F: 717-231-4501 Attorney for Plaintiffs HA-164512 vI CERTIFICATE OF SERVICE I hereby certify that on September 30, 2005, I served a true and correct copy of the foregoing Amended Entry of Appearance via United States first class mail, postage prepaid, addressed as follows: Jeffrey T. McGuire, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 PA'- By: C. Grainger Bo HA-164512 v I ?? C_? ? n ?` .-? ?`? n? r ? yr ' ? ? ? , ? i c`2 ...? _? _? ,, Ga _t -.< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEESERS, INC. AND LESTER S MILLER, JR., CIVIL ACTION NO. 03-6273 CIVIL TERM Plaintiffs V. JURY TRIAL DEMANDED E.C. SNYDER, INC., Defendant PLAINTIFFS' REPLY TO DEFENDANT'S NEW MATTER Plaintiffs Feesers, Inc. and Lester S. Miller, Jr., by and through their attorneys Kirkpatrick & Lockhart Nicholson Graham, pursuant to Defendant's Notice to Plead, hereby file this Reply to Defendant's New Matter, and in support thereof aver as follows: Plaintiffs incorporate the allegations of paragraphs 1 through 58 of their First Amended Complaint as if fully set forth herein. 60. Denied. The allegations of paragraph 60 state a conclusion of law as to which no response is necessary. 61. Denied. The allegations of paragraph 61 state a conclusion of law as to which no response is necessary. 62. Denied. The allegations of paragraph 62 state a conclusion of law as to which no response is necessary. 63. Denied. The allegations of paragraph 63 state a conclusion of law as to which no response is necessary. HA-164490 v I 64, Denied. The allegations of paragraph 64 state a conclusion of law as to which no response is necessary. 65. Denied. The allegations of paragraph 65 state a conclusion of law as to which no response is necessary. 66. Denied. The allegations of paragraph 66 state a conclusion of law as to which no response is necessary. 67. Denied. The allegations of paragraph 67 state a conclusion of law as to which no response is necessary. 68. Denied. The allegations of paragraph 68 state a conclusion of law as to which no response is necessary. 69. Denied. The allegations of paragraph 68 state a conclusion of law as to which no response is necessary. WHEREFORE, Plaintiffs demand judgment in their favor and against Defendant in the sum in excess of $35,000, plus interest, costs, statutory damages, attorney's fees, punitive damages, and such other relief as the Court deems appropriate. 04--? - - C. rainger 13w an, Esquire PA Supreme Ct. No. 15706 KIRKPATRICK & LOCKHART NICHOLSON GRAHAM, LLP 17 North Second Street, 18th Floor Harrisburg, PA 17101-1507 T: 717-231-5817 F: 717-231-4501 Attorney for Plaintiffs Dated: -2- CERTIFICATE OF SERVICE I hereby certify that on September 30, 2005, I served a true and correct copy of the foregoing Plaintiffs' Reply to Defendant's New Matter via United States first class mail, postage .prepaid, addressed as follows: Jeffrey T. McGuire, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 By: C. Grainger Bowm HA-164490, I r? ? C? `--? _._ "n ? ?? '? c? -n c? ??} ,, ?{ Gi '-??C ? : _r ? "j ': i ?`? ?- ? ?_ rn .7i _ ? r .. ? s- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEESERS, INC. AND LESTER S. MILLER, JR., Plaintiffs CIVIL ACTION NO. 03-6273 CIVIL TERM JURY TRIAL DEMANDED V. E. C. SNYDER, INC., Defendant WITHDRAWAL OF APPEARANCE Please withdraw the appearance of Joseph A. Harmon as counsel for Plaintiffs, Feesers, Inc. and Lester S. Miller, Jr. in the above-captioned matter. The entry of appearance of C. Grainger Bowman remains unchanged. Respectfully submitted, KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP Dated: October 4, 2005 l° rainger Bowman, Esquire A /Supreme Ct. No. 15706 Joseph A. Harmon, Esquire PA Supreme Ct. No. 89577 17 North Second Street, 18`' Floor Harrisburg, PA 17101-1507 T: 717-231-4500 F: 717-231-4501 Attorneys for Plaintiffs HA-164665 v1 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing document on the following via United States mail, first class postage pre-paid, the 4th day of October 2005. Jeffrey T. McGuire, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 Z7 Joseph A. Harmon ? r T -n 1'r 'rn : n L. ? ,. FYI ? ` J J PRAECIPE FOR LISTING CASE FOR TRW. (Must be typewritten and submitted in dapHeate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ® for JURY trial at the next term of civil court. ? for trial witbout a jury. CAPTION OF CASE (ea lre caption naW be stated in fuel) (check one) ® Civil Action -Law FESTERS INC, arid ? Appeal fiom arbitration LESTER S. HILLER, JR. ? (other) (Plaintiff) VS. The trial Hst will be called on L 1 oZ oZ o u E . C . SNYDER, INC. and Trials commence on t 1 ? a 0 u O M4, *- (Defendant) Preb ials w1R be held on oZ q . c? v vs. (Briefs are due S days before pretriais No. 03-6273 Civil Term Jury Trial Demanded Indicate the attorney who will try case for the party who files this praecipe: C. Grainger Bowman, Esquire, K&L Gates LLP, 17 N. 2nd St., 18th Floor, Harrisburg, PA 17101-1507 Indicate trial counsel for other parties if known: for E. C. Snyder, Inc. Jeffrey T. McGuire, Esquire, Caldwell & Kearns, 3631 N. Front Street, narrisourg, j This case is ready for trial. Date: September , 2008 Signed: ` f Print Name: C. Grainger Attorney for: Plaintiffs 4 0 0 ?t ?. ? -moo t .C. C ) FEESERS INC. and LESTER S. MILLER, JR. vs Case No. 03-6273 Civil E. C. SNYUER, INC. Statement of Intention to Proceed To the Court: Plaintif f s intends to proceed with the above captioned matter. case has 56-m lis-M or tnal urEng ThFinal week of November 17, 2008. Call of the trial list will be October 21, 2008. Pre-trials will be held on October 29, 2008. Print Name C. Grainger Bowman Sign Name Date: September 18, 2008 Attorney for Plaintiffs Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. " C Q ?? rr7 crs t*a w FEESERS, INC., AND LESTER S. #14 IN THE COURT OF COMMON PLEAS OF MILLER, JR., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v CIVIL ACTION - LAW E. C. SNYDER, INC., Defendant 03-6273 CIVIL TERM IN RE: CALL OF CIVIL TRIAL LIST ORDER OF COURT AND NOW, this 21st day of October, 2008, upon consideration of the call of the civil trial list, and this case having been called for trial by counsel for Plaintiffs, C. Grainger Bowman, Esquire, and counsel for the Defendant, Jeffrey T. McGuire, Esquire, having indicated that he does not believe the case is ready for trial because of outstanding discovery issues, the case will not be stricken from the trial list, and the issue of whether it should remain on the list for trial is deferred to the pretrial conference judge. It is noted that counsel for the Plaintiff, due to a conflict, has requested a special scheduling of the pretrial conference, and counsel are requested to contact the Court Administrator with regard to that issue. By the Court, 0 1 :E 114J ! C. 11.3 " 2'u 0Z `lC. Grainger Bowman, Esquire 114 North Second Street Harrisburg, PA 17101 For Plaintiffs Jeffrey T. McGuire, Esquire 250 South 18th Street P.O. Box 1833 Harrisburg, PA 17105 For Defendant Court Administrator mae ?ol?Y <<kcECC m?ir t LC td?zz?og FEESERS, INC., and LESTER S. IN THE COURT OF COMMON PLEAS OF MILLER, JR., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW VS. NO. 03-6273 CIVIL E. C. SNYDER, INC., Defendant JURY TRIAL DEMANDED ORDER AND NOW, this 2 q' day of October, 2008, at the request of counsel for the defendant, trial herein is continued and the matter stricken from the November 2008 trial list. This order is entered without prejudice to either party to relist the matter for a future trial term. BY THE COURT, C. Grainger Bowman, Esquire For the Plaintiffs Jeffrey T. Bowman, Esquire For the Defendant Court Administrator - o x 6y :rlm r ??.. ,,f- ?'? - ?`. ?SYF4? ? _ J}x. ?- ti ? 4 CA PRAECIPE FOR LISTING CASE FOR TRIAL ,all AUG -I PM 1: (Must be typewritten and submitted in triplicate) .,UMRLA1D I?U i TO THE PROTHONOTARY OF CUMBERLAND COUNTY PENNSYLVA' "1Ps'sL?d ?d a 1 Please list the following case: Q for JURY trial at the next term of civil court. ? for trial without a jury. Q,b Ui? CAPTION OF CASE (entire caption must be stated in full) FEESERS, INC. and LESTER S. MILLER, JR. vs. E.C. SNYDER,INC. (other) The trial list will be called on Aug. 23, 2011 and Trials commence on Sept. 19, 2011 vs. (Plaintiff) (Defendant) Pretrials will be held on Sept. 7, 2011 (Briefs are due S days before pretrials No. 03-6273 Civil Indicate the attorney who will try case for the party who files this praecipe: C. Grainger Bowman, Esq., K&L Gates, LLP, 17 N. Second St., Harrisburg, PA 17101 Indicate trial counsel for other parties if known: Jeffrey T. McGuire, Esq., Caldwell & Kearns, 3631 N. Front St., Harrirbttrg, PA 17101. This case is ready for trial. Signed: " 2zf ---` Print Name: C. Grainger Bo man Date: August 1, 2011 Plaintiffs Attorney for: (check one) X? Civil Action - Law ? Appeal from arbitration Tenn Served upon Attorney for Defendant 8/1/11. FEESERS, INC., AND LESTER S. MILLER, JR., Plaintiffs v E.C. SNYDER, INC., Defendant #6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW c-3 e ? -03 = rn cv M co) NO. 03-6273 CIVIL TERRA te r - ? IN RE: CASE STRICKEN FROM LIST ..{} --z rJ ORDER OF COURT AND NOW, this 23rd day of August, 2011, upon m c? rJ -r, consideration of the call of the civil trial list in the I/ above-captioned matter at No. 03-6273 Civil Term, and counsel for the Plaintiff in the person of C. Grainger Bowman, Esquire, and counsel for Defendant in the person of Jeffrey T. McGuire, Esquire, having indicated that this case should be stricken from the trial list at this time and will be relisted by counsel for the December trial term of court, the case is stricken from the trial list. Pursuant to an agreement of counsel, this continuance shall be charged to the Defendant for purposes of delay damages. By the Court, C. Grainger Bowman, Esquire 17 N. Second Street k Floor 18 f s M - Harrisburg, PA 17011 Wr' 9/ For Plaintiffs 10 Jeffrey T. McGuire, Esquire 3631 N. Front Street Harrisburg, PA 17110 For Defendant Court Administrator - in bae :mae CA FEESERS, INC., AND LESTER S. MILLER, JR., Plaintiffs v E.C. SNYDER, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA,,, C CIVIL ACTION - LAW am o -c x= -<> N 03-6273 CIVIL TERM C IN RE: CASE STRICKEN FROM LIST C:) ORDER OF COURT AND NOW, this 8th day of November, 2011, upon k' 9 consideration of the call of the civil trial list, and pursuant to a request of the Defendant, as relayed by Plaintiffs' counsel, C. Grainger Bowman, Esquire, this case is stricken from the trial list to permit the Defendant to conduct further discovery proceedings. Counsel are directed to relist the case at such time as they deem it appropriate. ? C. Grainger Bowman, Esquire 17 N. Second Street Floor 18 Harrisburg, PA 17101 For Plaintiffs ? Jeffrey T. McGuire, Esquire 3631 N. Front Street Harrisburg, PA 17110 For Defendant Court Administrator -in le O?Ied yes M Cop it 1,14 Q :mae By the Court, FILED-OFFICE. a,. E PROTHONOTARY 2012 JAN -5 AM 11: 31 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA FEESERS, INC. AND LESTER S. MILLER, JR., Plaintiffs V. E.C. SNYDER, INC., NO. 03-6273 CIVIL TERM JURY TRIAL DEMANDED Defendant PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: The parties identified below hereby praecipe this Court to have this action marked settled, discontinued and ended, with prejudice. On behalf of FEESERS, INC., Plaintiff On behalf of LESTER S. MILLER, JR., Plaintiff C. rainger Bo , Esquire K&L Gates LLP 17 North Second Street, 18'h Floor Harrisburg, PA 17101-1507 T: (717) 2 4500 Dated: r 012 C. Grainger Bo , Esquire K&L Gates LLP 17 North Second Street, 18th Floor Harrisburg, PA 17101-1507 T: (717)23;'-A500 Dated: - k 3l 2_ HA-264469 v I CERTIFICATE OF SERVICE I hereby certify that on January 4, 2012, I served a true and correct copy of the foregoing Praecipe to Settle, Discontinue and End via United States first class mail, postage prepaid, addressed as follows: Jeffrey T. McGuire, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 C. Grainger B an SA-264469 v 1