Loading...
HomeMy WebLinkAbout08-0423PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D.# 16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR THE PLAINTIFF WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG P.O. BOX 5001 WESTFIELD CENTER, OH 44251-5001: Plaintiff I certify this is a true and correct c y of the B: Paul M. Schofield, Jr. COURT OF COMMON PLEAS CUMBERLAND COUNTY VS. STRICKLAND BROTHERS NO.. CONSTRUCTION, LLC. 621 CREEK ROAD CARLISLE, PA 17013 Defendant : 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 Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 AVISO Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las pa inas siguientes, usted tiene (20) dias de plazo a partir de la fecha de la demanda y la notification. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte sus defensas o sus objeciones a las demandas encontra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notification o por cualgier queja o alivio qua espedido an la peticion de demanda. Usted puede perder dinero, sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE PARA PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE USTED PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 PAUL F. D-EMILIO, ESQUIRE ATTORNEY I.D.# 16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR THE PLAINTIFF WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG P.O. BOX 5001 WESTFIELD CENTER, OH 44251-5001: Plaintiff VS. STRICKLAND BROTHERS CONSTRUCTION, LLC. 621 CREEK ROAD CARLISLE, PA 17013 Defendant is is a true and py of the original , Jr. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.. d?,' q?-3 ov-1+esN NOTICE UNDER THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. §1601 (AS AMENDED) THE PENNSYLVANIA UNFAIR TRADE PRACTICES ACT AND CONSUMER PROTECTION LAW, 73 PA.CON.STAT.ANN. §201, ET. SEQ. ("THE ACTS") INASMUCH AS THE ACTS MAY APPLY, PLEASE BE ADVISED THAT THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE COMPLAINT The Plaintiff, Westfield Insurance Company, by its attorney Paul F. D'Emilio, Esquire, bring this action upon a cause whereof the following is a statement: 1. The Plaintiff, Westfield Insurance Company, is a Corporation authorized to do business in the Commonwealth of Pennsylvania, having an office at P.O. Box 5001, Westfield, OH 44251-5001. Plaintiff brings this action as subrogee of Craig Seig, herein the ("Insured") under a policy of insurance issued by Plaintiff. 2. Defendant, Strickland Brothers Construction LLC, is a corporation organized and existing under the laws of the Pennsylvania, doing business in the Commonwealth of Pennsylvania, with its principal place of business at 621 Creek Road, Butler, PA 16001. 3. On or before January 20, 2006, the Insured contracted with the Defendant to construct the foundation, framing, roofing and siding of a residence being built on Lot 6 on Longs Gap Road, Carlisle, PA. Thereafter, Defendant, started work on the site. 4. Plaintiff is not aware if the agreement is oral or in writing and if in writing, the writing is not in Plaintiffs possession but a copy is in possession of the Defendant. 5. The residence under construction consisted of a one story ranch structure with an attached garage with a roof ridge running right to left. 6. On January 20, 2006, the Defendant installed pre-engineered roof trusses constructed from 2x4 lumber on the Insured's residence. The trusses on the gabled ends above were covered with wooden sheathing. 7. The trusses were not installed with any field installed wood bracing elements. 8. On July 21, 2006, the trusses collapsed during a period of wind gusts in the area. 9. The sheathed left side gable end truss toppled out and away from the structure. 10. The sheathed right side gable end truss toppled into the structure. 11. Plaintiff avers that as a result of the incident, the property of the Insured was damaged, the reasonable costs of repair thereto being Eighteen Thousand Five Hundered Sixty Nine and 61/100 ($18,569.61) Dollars plus the insured's deductible of Five Hundred ($500.00) Dollars for a total of Nineteen Thousand and Sixty Nine and 61/100 ($10,069.61) Dollars. A true and correct copy of the accounting of the damaged is attached hereto, made a part hereof and marked Exhibit "A." COUNT I - BREACH OF CONTRACT 12. Plaintiff Westfield Insurance Company incorporates all of the allegations contained 3 in paragraphs 1 through 11 inclusive of this Complaint as fully as though same were herein and set forth at length. 13. Defendant breached the terms of their contract in that they: a. did not properly secure or brace the roof trusses; b. did not properly install the roof trusses; C. failed to observe the process to insure the proper installation of the roof trusses; and d. failed to adequately brace and secure the trusses against possible wind damage. COUNT II - BREACH OF WARRANTY 14. Plaintiff, Westfield Insurance Company incorporates all of the allegations contained in paragraphs 1 through 13 inclusive of this Complaint as fully as though same were herein and set forth at length. 15. Defendants expressly and implicitly promised, covenanted and warranted that their aforesaid roof truss system, including all related components, would be merchantable, safe, free of hazards and fit for this particular use and purpose for which it was intended. 16. Plaintiffs Insured relied, to theirdetriment, upon the aforesaid promises, covenants, warranties and other representations. 17. Defendants, by their aforesaid conduct, breached and/or violated their warranty and covenant that the roof truss system was fit for the particular purpose for which it was intended thereby causing damage to Insured, as a result whereof Defendant is liable to Plaintiff's Insured for their damages. 18. Defendants, by their aforesaid conduct, breached and/or violated their warranty and covenant that the roof system was fit for the particular purpose for which it was intended thereby causing damage to Insured, as a result whereof Defendant is liable to 4 Plaintiffs Insured for their damages. 19. Defendants have been given timely notice of their aforesaid breach of warranty. COUNT III - NEGLIGENCE 20. Plaintiff, Westfield Insurance Company incorporates all of the allegations contained in paragraphs 1 through 19 inclusive of this Complaint as fully as though same were herein and set forth at length. 21. Defendants, by and through their agents, servants and employees were negligent in that they: a. carelessly and negligently failing to provide a safe roof trusses to its customers; b. carelessly and negligently failing to adequately check and inspect said roof trusses for signs of defects; C. carelessly and negligently allowed or permitted the trusses and sheathed gable ends to exert undue force upon the truss connections thereby damaging Insured's property; d. carelessly and negligently failed to warn Insured of hazards associated with said roof truss and sheathed gable end; e. failing to insure that the roof truss and sheathed gable end was properly secured; and f. failed to use that degree of care, skill foresight and caution required by the Laws of the Commonwealth of Pennsylvania relating to the installation of the roof trusses and sheathed gable ends. WHEREFORE, Plaintiff demands judgment against the Defendants upon each count in an amount not in excess of Twenty Five Thousand and 00/100 ($25,000.00) 5 dollars together with costs of suit. Date: /- (?- ?r' entfil cation No.: 81894 e-mail address: pauls@demiliolaw.com Paul F. D'Emilio, Esquire Identification No.: 16654 e-mail address: pauld@demiliolaw.com 905 W. Sproul Road, Suite 105 Springfield, PA 19064 Telephone No.: 610-338-0338 VERIFICATION I, Paul M. Schofield, Jr., Esquire certify that I am the attorney for the Plaintiff, Westfield Insurance Company, in the above-captioned matter, do hereby verify that the facts contained in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. The representative of the Plaintiff was outside this jurisdiction and was not able to verify the complaint within the time required by the Rules and Laws of this Commonwealth. DATE: ' 7' Y 7 Exhibit A Adjuster Summary claim# HOPI 859048102 Claim Rep. Westfield Insurance Greg Snyder P.O. Box 3010 Phone (800) 732-0050 Lancaster, PA 17604 January26, 2006 Fax (717) 558-8288 Phone (800) 732-0050 6764 Fax (717) 569-6303 Insured Name Seig, Craig Loss Address Lot # 6 Longs Gap Rd, Carlisle, PA 17013 Phone Number Policy # HOPI859048 Other Phone Ins Claim # HOPI 839048-012106 Ias Company Westfield Insurance Date of Loss 1/21/2006 Coverage - Building Exterior Remove Truss, 6/12 Pitdk 30' Re pL Cost r. ACV OP RD Replace Tress, &12 Pitch, 30' 26 EA @ $29.80 26 EA @ $204 33 $774.80 $0.00 $774 .80 Remove Truss, 6/12 Pitch, 32' . 6 EA @ $30 65 85,312.58 $0.00 $3,312.58 Replace Truss, 6/12 Pitch, 32' . 6 EA @ $214 88 $193.90 $0.00 $183.90 Remove Truss, 6/12 Pitch, 40' . 16 EA aj $30 65 $1,289.28 $0.00 $1,28928 Replace 17rusa, 6112 Pitch,.40' . 16 EA @ 3265 04 $490.40 $0.00 $490.40 Special Crane Rental . 12 HR @ 375 00 $4,240,64 $0.00 34,240.64 Special clean up ? Removed . 12 HR @ $25 72 $900.,00 $ooo $900-00 . Coverage - Building Totals $308.64 $0.00 $308.64 $13,500.24 $0.00 $13,50824 Summary 1wimate Totals 6 % Tax Total With Tax Less Deductible Applied (5500.00 Maximum) Net Claim RepL Cost Deer. ACV $13,500.24 $0.00 $13,500.24 $493.68 $0.00 $493.68 $13,993.92 $0.00 $.13,993.92 ($500.00) ($500.00) A copy of this document does not co 513,493.92 50.00 513,493.92 ??y ?Pm? n a settlement of this claim no above figures are seihject to insuepnce Accepted by Price Database Legend All prices from TCD05DI 101. Adjuster Summary (MS/B 0120) Claim # HOPI 85904810210 Ian 26, 2006 J&A- 27. 200.6_ 1:55PM FLOOR Tau s$" OW I I IIM L& M UR 3497 8 hftrA Tra% Yod4 PA NO. 0999 P. 2 PXM 1 rbOne 717-7794M7 TOM p me 14M.7194M Fox 717.7790487 174= 2001127106 aame 030008 . CRAIG RMAAA(EMENTS SEMM CRAIG SE10 CARI.FffiI E, PA 116 WtKOWS7'RR CARDEN A"$ . vows P.O.. - CARUKEI PA 1t? 413 Amwr or?ts: O . 1RaAli: C. Q, D. Mgm; P17) NNO1C1lDATE I9RttS717) UMM lltftd: CRAIG OTY TM !'AM vim rm" CA . OETAU rk TOM N 02 37O4i0 7 2FLYCi10pR D 2 64 17x01-00 7J00 O D-1400 iPLYOIIRDER Woo 5 71 X6.0400 T 00+Ia 0i 2 TIA MAW T wig." i TO IS OpOp 3? 6CA160RS T1C 4640M sii O410pi L-4 lk! mim 1 T1D 454m 1.00 OP•100t 1 t1E ?ODOO 7AD 041006 t T1a 484WW T 00 OO?tOOi " . QAOI.H- 1710 C9QSFII?G io.loae i T10G re O40o 7.00 io.lo.ei ciMLE • M(r po *m 3 12 X14M tJ? 0410-00 i T3 IT 4M oIl 4"m lkDO "left if Ift !!-0400 WON t T7a =!-0400 00480 f00 0 im" 6`ABIQ. TMA'?3 . I TO 12.0440 won 7 00-tom RAMB- 71N'OOIOihRV. 25 pw" mum 1 Ll OWN 7- L1 iP020UV)D RS10rOWFaRTMM Y10 : 1 IA ON &W UA 1 O040L 3WlADOMWD6l: MR E TRM T"a 2 000 0.00 U 2 PAI M =N LADOM I0" oip FOR TRlMN0130 u oaao+Io - u' Mm"MLAOoeft 10'vwpm RTRM T4G ' F, YC' PB TRUSS Jan. 21. 2006 1:56PM YC . PB TRUSS Imm go , 0 Zs' \. TOP Cbad LWO LW 90.0 Po lro Chad vmdLad 7.W MP O.u«sChad UnLwd OAD Pdf BvNWCHKdO$WLsrd MAD Fop TUM LO A 47A0 P9F WE AM EM" YOUR wima " YORK Paym"' m 6AAI 61 171. jAA ov G10 Y006 07: 51 FROM 17177328577 FAX NO, Fulmer Construction Services, Inc. 223 N. Low% Point VA Mechanicsburg. PA 17050 BILL TO cmk us 116 Vuwhcgr ( wftApm m ds Coriicle, PA 17013 PAGE 02 Feb. 20 2006 06:SVM PI Invoice DAM 1*?OICEO? 2/i6R006 G6-3801 TERi?,{$ Do on rwei c 0?(Pi70N ?? lROV1Q8 L.Aa03i ?Np u'QVIPMC;NI'NLtCLS3AttY TO x&AM THE DAMmi -0 Vu m AND S'TRAX*M-N WALLS. 00 CRAM LMM(D HRS @$33." 183.4 MVM I48(1it. MA7EkR AND EQWMUW NCCI-=P.Y TO 3C1' AND l• 0& ?7WNBWR00F7RU53E8. 0.0 I?MATMU4 , 5o3.a 1ADM (k4 M8 @ S33." 256.0c PRO M LABOR MATMUAL AND R0U1PmKNTNF ARy To FRAME 2,772.a ROOF. 0.00 PAY' Pox Mole 7671 )big q._ / ?,.? , 732- l?axs Total MECHANICAL DEPT5t PROJECT 0642 AMOUNT 000 18:3.00 1,947.00 0.00 503.o0 256.00 2.772.00 0.00 2.934.00 RECEIVED TIME FEB.22. 7:55AM PRINT TIME FEB.22, 7:57AM UW 11/ 2006 07:51 1717737' '77 MECHANICAL DEP"-`. PAGE 03 RjTotteigff Construction; Services, Inc. P .O. Box 164 New Mngstown, PA, 17072 BILL TO Greg ai9 -- i ' Wlnchestar Gorden Apts. Carpe. PA 1701,3 Phone: 717-697-3192 Pals: 717-697-3193 Invoice DATE INVOICE NO. 2/7/2006 i5B3 RECEIVED TIME FE8.22. 7:55AM PRINT TIME FEB.22. 7:57AM $18,569.61 RECEIVED OF Westfeld Insurance ("Company" herein), Westfield Center, Ohio, the sum of ($18,569.61) being in full settlement of all claims and demands for loss and damage, arising on the 21st day of January, 2006, to the Dwelling insured by Policy No. HOP1859048 issued on a Homeowners Policy at the Gunn-Mowery Agency of said Company, and in consideration of such payment, the undersigned hereby assigns and transfers to the said Company each and all claims and demands against any other person, firm, property or corporation, arising from or connected with such loss and damage, and the said Company is hereby subrogated in the place of and to the claims and demands of the undersigned, against said person, firm, property or corporation, in the premises, to the extent of the amount above named, and the said Company is hereby authorized and empowered to sue, compromise or settle in My name or otherwise to the extent of the money paid as aforesaid. The undersigned covenants that Craig Se has not released or discharged any such claim or demand against such other party and that Craia_ Seio will furnish to said Company any and all papers and information in his possession, necessary for the proper prosecution of such claim. The undersigned further states that the,claim for the property insured has been paid or repaired to the undersigned's satisfaction. Company is authorized by undersigned.to pay upon undersigned's behalf, the sum of Eighteen Thousand Five Hundred. Sixty Nine and 61/100 Dollars. ($18 5_ . 69,61,1, being the amount due from Company for said damage to my dwelling. :05/10;006 09:28 7177328208 HERRE BROS INC. PAGE 02 .. lp 01gFWU OW Rapp eT L- . MIS -- . _ day of W%A . Insured Signatum V 5 at LA Insured (Print Name) VVltnesses: Signed in my presence and does de2mfl1Qd ah Individual's Signature Name of Corporation Signature of Officer of Corporation ?S 19.089.e7 Entire Loss r-vp. w.wwrr r s00.Qg lift lble ,?? 18,569,61 Insurance Loss Attach repair statements or supporting documents. E RECEIVED TIME MAY. 10. 9:26AM PRINT TIME MAY. 10 1 ?9.35AW 'OI '?vw LAW OFFICES OF PAUL F. D-EMILIO, LLC 905 WEST SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 FAX (610) 338-0303 Paul F. D'Emilio Paul M. Schofield, Jr. ALSO ADMITTED IN N.J. January 17, 2008 Prothonotary's Office Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: Westfield Insurance Company a/s/o Selig v.Strickland Brothers Dear Sir/Madam: Please find enclosed herewith the following in the above entitled matter: 1. One (1) copy of the Complaint in civil action; 2. Check in the amount of $78.50 payable to the Cumberland County Prothonotary; 3. Check in the sum of $100.00 Sheriff of Cumberland County; 4. One (1) Order for Service for the Sheriff of Cumberland County; Please accept the original for filing and forward one (1) time stamped copy to the undersigned in the enclosed self-addressed stamped envelope. Also, kindly forward one (1) time stamped copy of the Complaint in Civil Action and Order for Service and check in the sum of $100.00 to the Sheriff of Cumberland County. Thank you for your assistance and cooperation in this matter. Very truly yours, Paul M. Schofield, Jr., Esquire PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) V5. (Plaintiff) (Defendant) No. Civil 19 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to capplaint, etc.): 2. Identify counsel who will argue case: (a) for plaintiff: Address: (b) for defendant: Address: 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) Dated: Attorney for r'l c-.:a 1.:7 c7 9` J W ? A 3 r 0 C SHERIFF'S RETURN - REGULAR CASE NO: 2008-00423 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WESTFIELD INSURANCE COMPANY VS STRICKLAND BROTHERS CONSTRUCTI MARK CONKLIN , Sheriff or Deputy heriff of Cumberland County,Pennsylvania, who being duly swo n according to law, says, the within COMPLAINT & NOTICE was ser ed upon STRICKLAND BROTHERS CONSTRUCTION LLC the DEFENDANT, at 0900:00 HOURS, on the 23rd day of January 2008 at 623 CREEK ROAD CARLISLE, PA 17013 by Nandi BREE HARVEY, SECRETARY, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE to together with and at the same time directing Her attention to tl?e contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 4.80 Affidavit 00 _ Surcharge 10.00 R. Thomas Kline .00 32.80 01/24/2008 PAUL E'EMILIO Sworn and Subscibed to By: before me this day De u y e I of A.D. Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Defendant WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-423 CIVIL TERM CIVIL ACTION - LAW NOTICE TO PLEAD TO: Westfield Insurance Company, Plaintiff Paul M. Schofield, Jr., Esquire, Attorney for Plaintiff 905 West Sproul Road Suite 105 Springfield, PA 19064 You are hereby notified to file a written response to the enclosed Answer with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, Date: ,Attorney I.D. # 780Y4 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Defendant Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Defendant WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-423 CIVIL TERM CIVIL ACTION - LAW DEFENDANT'S ANSWER WITH NEW MATTER AND NOW, comes Defendant, Strickland Brothers Construction, LLC by and through its attorney, Mark W. Allshouse, Esquire, who respectfully files the following Answer With New Matter to Plaintiff's Complaint and Joinder of Additional Defendant Craig Seig and in support thereof avers as follows: 1. Admitted in part. It is admitted upon information and belief as to Plaintiff's ability to conduct business in Pennsylvania and address. By way of further response, after reasonable investigation, Plaintiff is without belief or knowledge as to the remaining averments in paragraph I of Plaintiff's Complaint. 2. Denied. To the contrary, the principle place of business of Strickland Brothers Construction, LLC is 623 Creek Road, Carlisle, PA 17013. 3. Denied. To the contrary, Plaintiff and Defendant entered into a written agreement for the construction of a residential home to be located on Lot 6, Longs Gap Road, Carlisle, Pennsylvania. By way of further response, Defendant was responsible for the construction of the home with the understanding that Craig Seig would be performing certain parts of the construction on his own including, but not limited to excavating the foundation. 4. After reasonable investigation, Defendant is without knowledge or belief as to what Plaintiff may or may not be aware of in set forth in paragraph 4 of Plaintiff's Complaint. By way of further response, the agreement between Defendant and Plaintiff's insured was in writing and is in the possession of both Defendant and Plaintiff's insured, Craig Seig. 5. Admitted. 6. Admitted. 7. Denied. To the contrary, all trusses and gable ends were installed on site with proper wood bracing to secure them and in compliance with general construction industry standards. 8. Denied as stated. By way of further response, on July 21, 2006 the prefabricated and properly installed truss system collapsed during a period of severe and excessive wind gusts up to and exceeding 45 miles per hour which occurred on site. 9. Admitted. 10. Admitted. 11. Denied. Paragraph 11 is a conclusion of law to which no response is necessary. By way of further response, after reasonable investigation, Defendant is without belief or knowledge as to the accuracy of the averment contained in paragraph 11 of Plaintiff s Complaint or the exhibit attached thereto as Exhibit "A". Count I - Breach of Contract 12. Paragraph 12 is a paragraph of incorporation which no response is necessary. In the event a response is required, paragraph 12 is specifically denied. 13. Denied. Paragraph 13 is a conclusion of law to which no response is necessary. By way of further response, Defendant did not breach the terms of the contract. (a) Denied. Defendant properly secured all trusses as they were set in compliance with general construction industry standards. (b) Denied. All roof trusses were properly installed by Defendants in compliance with general construction industry standards. (c) Denied. To the contrary, Defendants were the individuals installing the roof trusses and, therefore, observed the entire process of proper installation which process was in compliance with general construction industry standards. (d) Denied. To the contrary, Defendant placed all adequate bracing and secured the trusses pursuant to industry standard to ensure against normal weather conditions. By way of further response, the intense gusts and winds which caused the collapse of the trusses do not constitute normal weather conditions, but instead, constitute extreme weather conditions. Count II - Breach of Warranty 14. Paragraph 14 is a paragraph of incorporation which no response is necessary. In the event a response is required, paragraph 14 is specifically denied. 15. Denied. Paragraph 15 is a conclusion of law to which no response is necessary. By way of further response, the truss system attached to the house was not Defendant's truss system, but was a purchased truss system from York PB Truss. By way of further response, Defendant provided no warranty for the structural integrity of the truss system. By way of further response, said warranty would have been provided by York PB Truss. 16. Denied. Paragraph 16 is a conclusion of law to which no response is necessary. By way of further response, Defendant provided no promises, covenants, warranties or other representations as to the quality of the truss system. 17. Denied. Paragraph 17 is a conclusion of law to which no response is necessary. By way of further response, Defendant provided no warranty as to the truss system and its use for fit for a particular purpose. The truss system was a pre-purchased, pre-built truss system from York PB Truss. 18. Denied. Paragraph 18 is a conclusion of law to which no response is necessary. By way of further response, Defendant made no covenant or warranty with regard to the truss system. 19. Denied. Paragraph 19 is a conclusion of law to which no response is necessary. By way of further response, Defendant provided no warranty, but was notified of the collapse of the trusses. Count III - Negligence 20. Paragraph 20 is a paragraph of incorporation which no response is necessary. In the event a response is required, paragraph 20 is specifically denied. 21. Denied. Paragraph 21 is a conclusion of law to which no response is necessary. (a) Denied. Paragraph 21(a) is a conclusion of law to which no response is necessary. By way of further response, there is no evidence, nor facts plead, that in any way relate to the safety of the truss system to the damages alleged by Plaintiff. By way of further response, the truss system installed on the house by Defendant was not constructed, nor any warranty or promise of safety provided by Defendant. (b) Denied. Paragraph 21(b) is a conclusion of law to which no response is necessary. By way of further response, Defendants personally installed the roof trusses, securing all braces for normal weather conditions and performing all checks and inspections for any signs of defects prior to installation. By way of further response, had defects been detected, Defendant would have rejected the delivery of the pre-built trusses from York PB Truss. (c) Denied. Paragraph 21(c) is a conclusion of law to which no response is necessary. By way of further response, Defendant has no ability to control the severe wind gusts that caused the collapse of the truss system. (d) Denied. Paragraph 21(d) is a conclusion of law to which no response is necessary. By way of further response, Defendant had no obligation or necessity to warn the insured. By way of further response, no allegation has been made that the roof trusses presented any hazard to Plaintiff or its insured, or that they were unsafe. (e) Denied. Paragraph 21(e) is a conclusion of law to which no response is necessary. To the contrary, Defendant properly secured and braced the roof trusses as they were set in compliance with general construction industry standards. (f) Denied. Paragraph 21(f) is a conclusion of law to which no response is necessary. By way of further response, there are no laws in the Commonwealth of Pennsylvania relating to the installation of roof trusses or gable ends. By way of further response, Defendant installed and braced the roof trusses and gable ends pursuant to construction industry standard. By way of further response, the gable ends of the trusses came pre-built and had sheeting already installed as is normal and customary. By way of further response, Defendant has no ability to control what amount of force wind can place upon a building. By way of further response, the amount of force created by 45 mile per hour winds exceeded normal weather conditions over which Defendant has no control. WHEREFORE, Defendant respectfully requests this Honorable Court to enter judgment in favor of Defendant and dismiss Plaintiff's Complaint with prejudice. NEW MATTER 22. Defendant hereby incorporates their responses in paragraphs 1 through 21 to Plaintiff's Complaint by reference as if set forth at length herein. 23. Defendant is the Plaintiff in a pending civil action in the Court of Common Pleas of Cumberland County against Plaintiff's insured, Craig Seig for failure to pay for work performed which includes a claim for failure to pay for the roof trusses which are the subject matter of Plaintiff's Complaint. 24. Defendant has already paid for one set of roof trusses and Plaintiff has no ability to require or collect payment for a second set. 25. Plaintiff has issued an insurance check to their insured, Craig Seig who has failed to pay Defendant. 26. Plaintiff's right of reimbursement is through their insured, Craig Seig who has a fully-constructed home, including trusses for which he has never paid. 27. Plaintiff's cause of action is not valid as Defendant, Strickland Brothers Construction, LLC, has never been paid for the truss system and Plaintiff has no right to collect payment for a second truss system from Defendant. 28. Plaintiff's right of subrogation is limited to the rights to collect held by their insured. 29. Plaintiff's insured was required by written agreement to bear the risk of loss during construction for damage caused by weather conditions such as those described within Plaintiff's Complaint. 30. Because Plaintiff's insured was required to bear the risk of loss and insure against said loss, Plaintiff's insured has no cause of action for loss against Defendant, nor does Plaintiff. 31. Defendant's properly inspected, installed and braced the roof trusses pursuant to construction industry standard. 32. The cause of collapse of the roof trusses was not due to any fault or negligence on the part of Defendant, but was as a result of severe wind gusts which snapped and broke the existing bracing. 33. The wind gusts were so severe that one gable end of the house was carried a distance of approximately 50 (fifty) feet from the constructed residence. 34. Simultaneously with the filing of this Answer with New Matter, Defendant has filed a Complaint in the Court of Common Pleas of Cumberland County joining Plaintiffs insured, Craig Seig as an additional defendant to this action as liable to Defendant for the cause of action arising out of the occurrence upon which Plaintiffs cause of action is based pursuant to Pennsylvania Rule of Civil Procedure 2252. WHEREFORE, Defendant respectfully requests this Honorable Court to enter judgment in favor of Defendant and against Plaintiff. Date: a? Respectfully submitted, u?. k W. Allshouse Esquire ttorney I.D. # 78014 4 33 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Defendant Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Defendant WESTFIELD INSURANCE COMPANY IN THE COURT OF COMMON PLEAS AS SUBROGEE OF CRAIG SEIG, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff ; V. NO. 08-423 CIVIL TERM STRICKLAND BROTHERS CONSTRUCTION, LLC, : CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, as follows: Paul M. Schofield, Jr., Esquire 905 West Sproul Road Suite 105 Springfield, PA 19064 Date: d Respectfully submitted, M k Allshouse, squire orney I.D. # 7801 33 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Defendant WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-423 CIVIL TERM CIVIL ACTION - LAW VERIFICATION We, M. Jeffrey Strickland and Matthew G. Strickland, members of Strickland Brothers Construction, LLC, being authorized to do so, verify that the statements in the foregoing document are true and correct to the best of our knowledge, information and belief under penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: pq/Ioq/y Date: oI/,/14 ? STRICKLAND BROTHERS CONSTRUCTION, LLC By By: Matthew G. Strickland, r ? e` r f : ; q l „:? y C? Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Defendant WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant v CRAIG SEIG, Additional Defendant NO. 08-423 CIVIL TERM CIVIL ACTION - LAW NOTICE TO PLEAD TO: Craig Seig, Additional Defendant c/o John H. Pietrzak, Esquire REAGER & ADLER 2331 Market Street Camp Hill, PA 17011-4642 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 Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Date: a V/14( 1orn k W.Allshouse, E uire ey ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Defendant WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant v CRAIG SEIG, Additional Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-423 CIVIL TERM CIVIL ACTION - LAW COMPLAINT JOINING ADDITIONAL DEFENDANT CRAIG SEIG PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 2229 AND NOW, comes the Defendant, Strickland Brothers Construction, LLC, by and through its attorney, Mark W. Allshouse, Esquire and respectfully files this Complaint joining Additional Defendant, Craig Seig pursuant to PA. R.C.P. 2229 and in support thereof avers as follows: 1. Defendant, Strickland Brothers Construction, LLC, is a Pennsylvania limited liability company having a business address of 623 Creek Road, Carlisle, Cumberland County, Pennsylvania 17013. 2. Additional Defendant, Craig Seig, is an adult individual having a current address of 116 Winchester Garden Apartments, Carlisle, Cumberland County, Pennsylvania 17013. 3. On or about May 5, 2006 Defendant filed an independent action in the Court of Common Pleas of Cumberland County captioned Strickland Brothers Construction. LLC v. Craig Seim, docket number 06-2532 Civil Term. Pleadings in that action are complete. 4. Thereafter, on January 18, 2007, Plaintiff in the above-referenced matter filed a Complaint against Defendant, Strickland Brothers Construction, LLC regarding reimbursement for loss for payment by Plaintiff under an insurance policy. 5. The alleged loss arose out of the same series of occurrences and relates directly to a common question of law or fact affecting the rights to relief of Plaintiff against Defendant, Strickland Brothers Construction, LLC, as those which form the basis of the prior action between Defendant Craig Seig as previously referenced. 6. Plaintiff in the above-captioned matter is seeking damages arising from a collapse of roof trusses during the construction of a residential home by Defendant for Additional Defendant. 7. It is believed and, therefore, averred that Additional Defendant, Craig Seig is individually liable to Defendants or jointly liable with Defendant for the relief sought by Plaintiff in this matter based upon Additional Defendant's contractual obligation to insure for losses occurring during construction. A true and correct copy of the contract is attached hereto and made a part hereof marked as Exhibit "A". 8. It is believed and, therefore, averred that Additional Defendant, Craig Seig is liable to Defendant for non-payment for materials, including the roof trusses, per the contract in the amount of Thirty-six Thousand Five Hundred Six and 76/100 Dollars ($36,506.76). 9. Plaintiff's ability to collect from Defendant is directly related to the contractual relationship existing between Defendant and Additional Defendant and the legal liabilities and obligations between them. 10. If Defendant is liable to Plaintiff, Defendant believes and, therefore, avers that Additional Defendant is individually liable to Defendant for such amount as set forth in the allegations contained in Plaintiff's Complaint captioned Strickland Brothers Construction, LLC 2 v. Craig Seig, docket number 06-2532 Civil Term, which averments are incorporated herein as if set forth at length. 11. Plaintiff is seeking damages in the amount of Nineteen Thousand Sixty-nine and 61/100 Dollars ($19,069.61). 12. Additional Defendant is either liable to Defendant, or jointly and severally liable to Defendant, for the amount sought by Plaintiff. 13. As a result of Additional Defendant's liability to Defendant, Defendant is seeking judgment against Additional Defendant in an amount not less than Nineteen Thousand Sixty-nine and 61/100 Dollars ($19,069.61) nor more than that amount set forth in its prior Complaint as referenced herein. WHEREFORE, Defendant respectfully requests this Honorable Court to enter judgment in favor of Defendant and against Additional Defendant in an amount not less than Nineteen Thousand Sixty-nine and 61/100 Dollars ($19,069.61). Respectfully submitted, Date:11/6/ag M k W. Allshouse, E /quire A on: ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Defendant 3 Exhibit "A" STRICKLAND BROTHERS CONSTRUCTION. LLC Strickland Brothers Construction, LLC New Home Construction cost to be built on vacant lot on Longs Gap Road House Plan 99812 "The Brownstone" 2046 square foot ranch with the addition of square footage to be gained by adding 2' to the left and right sides of house. Foundation to be the same size as finished house. 611 sq. ft (two car) garage. Design specifications and standards 9 foot poured concrete foundation walls TJI Truss Joist silent floor system 2x6 exterior construction Electric will be according to municipal code. 350 connections. Aker tubs and showers to be selected by homebuyer. Strickland Brothers Construction uses Pex-tubing for plumbing supplies and a Manabloc system. Two exterior hydrants are standard for this plan. Moen plumbing fixtures are standard Anderson maintenance free vinyl windows Therma-tru steel entry doors STRICKLAND BROTHERS CONSTRUCTION UX Maintenance-free vinyl siding (choice ol'beaded or dutch lap: color to be picked by homebuyer) Full face of house to be stone (choice of colors and styles to be picked by homebuyer) Shutters and shutter boxes supplied by Strickland Brothers Construction on front of house only (shutter colors to be picked by homebuyer) Elk 30-year architectural shingles Fridgidaire (with 10 year warranty) propane fired furnace with buried propane tank Electric hot water heater Central air conditioning I311co entry steps and doors leading to basement Seamless gutters and downspouts 51200.00 light fixture allowance $12500.00 floor covering allowance $16500.00 kitchen/bath cabinets and kitchen/bath top allowance Appliance package includes a ceramic smooth top electric range, side by side refrigerator with icemaker, microwave above the range, and a 3-cycle dishwasher Vinyl front porch posts Cost of construction: $253,000.00 Thank you for choosing Strickland Brothers Construction. STRICKI,AND BROTHERS CONSTRUC' IION, L.LC Homebuyer will be responsible for maintaining all applicable insurances during the phase of construction. Homebuyer will be responsible to assume PPL/North Middleton Authority charges during the phase of construction. Strickland Brothers Construction, LLC will set up all utilities and will notify homebuyer when the time is right to switch into their name. Homebuyer will be responsible for reimbursement of 1 " water line to be installed by Strickland Brothers Construction for future Municipal water. Homebuyer will be responsible to apply for credit with Aero Energy or Shipley Energy for Propane tank. WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-423 CIVIL TERM CIVIL ACTION - LAW VERIFICATION We, M. Jeffrey Strickland and Matthew G. Strickland, members of Strickland Brothers Construction, LLC, being authorized to do so, verify that the statements in the foregoing document are true and correct to the best of our knowledge, information and belief under penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: Date: ??*?""' STRICKLAND BROTHERS CONSTRUCTION, LLC -0. al By: M. J ,cAtrickland, member By: Matthew G. Strickland, 1 ? e Mark W. Allshouse, Esquire Attorney 1D # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Defendant WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant v CRAIG SEIG, Additional Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-423 CIVIL TERM : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, as follows: Paul M. Schofield, Jr., Esquire 905 West Sproul Road Suite 105 Springfield, PA 19064 John H. Pietrzak, Esquire REAGER & ADLER 2331 Market Street Camp Hill, PA 17011-4642 Respectfully submitted, Dateo24?al()X k W. Allshouse, squire ttorney I.D. # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Defendant t e 4? 'er C STRICKLAND BROTHERS CONSTRUCTION, LLC, PLAINTIFF V. CRAIG SEIG, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2532 CIVIL WESTFILED INSURANCE COMPANY IN THE COURT OF COMMON PLEAS OF AS SUBROGEE OF CRAIG SEIG CUMBERLAND COUNTY, PENNSYLVANIA P.O. BOX 5001 WESTFIELD CENTER, OH 44251-5001: PLAINTIFF V. STRICKLAND BROTHERS CONSTRUCTION, LLC., 621 CREEK ROAD CARLISLE, PA 17013 DEFENDANT NO. 08-0423 CIVIL ORDER OF COURT AND NOW, this 12th day of February, 2008, the Court having been advised that another suit has been filed by Westfield Insurance Company which may need to be consolidated with the above captioned matter, IT IS HEREBY ORDERED AND DIRECTED that this Court's previous order of January 23, 2008, requiring that the parties file pre-trial memorandum with the Court on or before February 13, 2008, is RESCINDED. IT IS FURTHER ORDERED AND DIRECTED that a status conference on this case to include counsel representing Westfield Insurance Company will be held on Tuesday, April 29, 2008 at 3:30 p.m. in chambers of Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, 'R\ -?, ?AA M. L. Ebert, Jr., VI VAIArNN"zid 6 0 WV 6 ! 033 BDOZ AdVIO N&JUUrf 3H1.30 30L`U--G31U 4-- .//Mark W. Allshouse, Esquire Attorney for Plaintiff John H. Pietrzak, Esquire Attorney for Defendant ,/Paul M. Schofield, Jr., Esquire Attorney for Westfield Insurance Company Court Administrator . SAS 11ploc- bas e-'Optcs m a c Lcc?- I a?ralos WESTFIELD INSURANCE COMPANY IN THE COURT OF COMMON PLEAS AS SUBROGEE OF CRAIG SEIG, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant v CRAIG SEIG, Additional Defendant NO. 08-423 CIVIL TERM CIVIL ACTION - LAW ACCEPTANCE OF SERVICE I, John H. Pietrzak, Esquire, accept service of the Complaint Joining Additional Defendant Craig Seig Pursuant to Pennsylvania Rule of Civil Procedure 2229 on behalf of Craig Seig regarding the above-referenced action. Date: ?1,2JICX Jo)fil H. Pietrzak, Esquir6 AGER & ADLER 2331 Market Street Camp Hill, PA 17011-4642 (717) 763-1383 a ? 4 ` ?? ?? ? ?? ?' ?`; .fi: t'.,, arr. ,.? ? ?' ca ?' :?a -,? t i ?'? WESTFIELD INSURANCE COMPANY : IN THE COURT OF COMMON PLEAS AS SUBROGEE OF CRAIG SEIG, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION -LAW V. STRICKLAND BROTHERS NO. 08-423 CIVIL TERM CONSTRUCTION, LLC, ; Defendant v. CRAIG SEIG, Additional Defendant NOTICE TO PLEAD To: Strickland Brothers Construction, LLC: YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER AND COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Date: March 7, 2008 Respectfully submitted, REAGER & ADLER, P.C ,Lie lJoh. Pietrzak, Esquire A mey I.D. No. 79538 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011-4642 Telephone: (717) 763-1383 Attorneys for Additional Defendant REAGER & ADLER, P.C. BY: JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: JJpietrzakgReagerAdlerPC.com BY: THOMAS O. WILLIAMS Attorney I.D. No. 67987 Email: Twilliams@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Craig Seig WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION -LAW V. STRICKLAND BROTHERS NO. 08-423 CIVIL TERM CONSTRUCTION, LLC, ; Defendant V. CRAIG SEIG, Additional Defendant ANSWER AND NEW MATTER OF CRAIG SEIG ADDITIONAL DEFENDANT TO THE COMPLAINT JOINING ADDITIONAL DEFENDANT FILED BY STRICKLAND BROTHERS CONSTRUCTION LLC 1. Admitted. 2. Admitted in part. By way of clarification, Additional Defendant Craig Seig's address is 1250 Longs Gap Rd., Carlisle, PA 17013. 3. Admitted. 4. It is admitted that Plaintiff filed a Complaint in subrogation against Defendant Strickland Brothers Construction, LLC (hereinafter "SBC"). Additional Defendant denies Defendant SBC's characterization of Plaintiff's Complaint as the Complaint is a document that speaks for itself. 5. This paragraph contains a legal conclusion to which no response is required. 6. Denied as stated. Plaintiff's claim is stated in its Complaint, which speaks for itself. To the extent further answer is required, Plaintiff's claim is for subrogation of an insurance payment made to Additional Defendant Craig Seig for damages sustained when the truss system constructed by Defendant SBC fell down. 7. This paragraph contains a legal conclusion to which no response is required. To the extent that this paragraph contains factual averments, such averments are denied. It is denied that Additional Defendant is individually liable to Defendant SBC or jointly liable with Defendant SBC for the relief sought by Plaintiff. It is further denied that Additional Defendant was obligated to provide insurance coverage for Defendant SBC in any manner whatsoever. It is admitted that Defendant SBC has attached a document as Exhibit "A" that it contends is a contract between Defendant SBC and Additional Defendant. Additional Defendant notes that this document is different than the contract Defendant SBC attached to its Complaint against Craig Seig at docket number 06-2532. Additional Defendant denies that the document Defendant SBC has attached as Exhibit "A" is the contract between the parties because this document does not reflect the proper scope of work or payment terms that the parties agreed upon. 8. This paragraph contains a legal conclusion to which no response is required. To the extent that this paragraph contains factual averments, such averments are denied. Additional Defendant denies Defendant SBC's averments in this paragraph relating to non-payment for materials as such averments go beyond the subject matter of Plaintiff's Complaint and are therefore irrelevant and immaterial to this action. By way of further answer, Additional Defendant has paid Defendant SBC for all work performed by SBC in a workmanlike manner. Additional Defendant does not owe Defendant SBC $36,506.76 or any amount. 9. This paragraph contains a legal conclusion to which no response is required. To the extent that this paragraph contains factual averments, such averments are denied. 10. This paragraph contains a legal conclusion to which no response is required. To the extent that this paragraph contains factual averments, such averments are denied. Additional Defendant denies Defendant SBC's averments in this paragraph relating Defendant SBC's separate action against Craig Seig to the extent that such averments go beyond the subject matter of Plaintiff's Complaint and are therefore irrelevant and immaterial to this action. By way of further answer, Additional Defendant denies that it is individually liable to Defendant SBC for any amount, and incorporates its Answer to Defendant SBC's Complaint at docket number 06- 2532 inasmuch as Defendant SBC has incorporated its Complaint against Craig Seig into its Complaint to Join Additional Defendants. 11. Denied as stated. Plaintiff's claim is set forth in its Complaint, which speaks for itself. 12. Denied. Additional Defendant denies that it is liable to Defendant SBC or jointly and severally liable to Defendant SBC, for any amount sought by Plaintiff. 13. Additional Defendant denies that it is liable to Defendant SBC for any amount. WHEREFORE, Additional Defendant Craig Seig requests this Honorable Court to enter judgment in its favor and against Defendant Strickland Brothers Construction, LLC, together with costs and any other recovery deemed appropriate. NEW MATTER 14. Additional Defendant incorporates herein by reference the averments of paragraphs 1 through 13 above as if set forth fully herein. 15. Defendant SBC's claim is barred by the doctrines of waiver and estoppel. 16. Defendant SBC's claim is barred by the doctrine of laches. 17. Defendant SBC's claim is barred by the doctrines of accord and satisfaction, justification and/or payment. 18. Defendant SBC's complaint fails to state a cause of action for which relief can be granted. WHEREFORE, Additional Defendant Craig Seig requests this Honorable Court to enter judgment in its favor and against Defendant Strickland Brothers Construction, LLC, together with costs and any other recovery deemed appropriate. Respectfully submitted, REAGER & ADLER, P.C. Date: March 7, 2008 John. Pietrzak, Esquire Att ey I.D. No. 79538 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011-464 Telephone: (717) 763-1383 Attorneys for Additional Defendant VERIFICATION I, JOHN H. PIETRZAK, ESQUIRE, being duly sworn according to law, depose and state that I am the attorney for Additional Defendant Craig Seig, and I make this verification on his behalf; and that said Additional Defendant is unavailable and unable to make this verification on his own behalf within the time allotted for filing of this pleading and the facts set forth in the foregoing pleading are true and correct to the best of counsel's knowledge, information and belief. This verification is made pursuant to Pa. R.C.P. 1024 and is based on interviews, conferences, reports, records and other investigatory material in the file. REAGER & ADLER, P.C. Date: March 7, 2008 By: _ Y'f, JO H. PIE , ESQUIRE CERTIFICATE OF SERVICE AND NOW, this 7th day of March, 2008, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. Mail, postage prepaid and addressed as follows: Mark W. Allshouse, Esq. 4833 Spring Road Shermans Dale, PA 17090 Paul M. Schofield, Jr., Esquire Law Office of Paul F. D'Emilio, LLC 905 West Sproul road Suite 105 Springfield, PA 19064 kzc?-- JOP? H. P RZAK, ESQUIRE ?, N 0 {??? f' r. ?? ? ? g's r_ .. : ? C?' ?? ??f .??y„j ':. . ?"' ? ? r"n ?? ? `]? ( `? ? .l t 3 • • ?! Mark W. Allshouse, Esquire Attorney 1D # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Defendant WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant CRAIG SEIG, v Additional Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-423 CIVIL TERM CIVIL ACTION - LAW DEFENDANT'S REPLY TO ADDITIONAL DEFENDANT'S NEW MATTER AND NOW, comes the Defendant, Strickland Brothers Construction, LLC, by and through its attorney, Mark W. Allshouse, Esquire and respectfully files the following Reply to Additional Defendant's New Matter: 14. Paragraph 14 is a paragraph of incorporation to which no response is necessary. In the event a response is deemed necessary, it is denied. 15. The averment in paragraph 15 is a conclusion of law to which no response is necessary. In the event a response is deemed necessary, it is denied. 16. The averment in paragraph 16 is a conclusion of law to which no response is necessary. In the event a response is deemed necessary, it is denied. 17. The averment in paragraph 17 is a conclusion of law to which no response is necessary. In the event a response is deemed necessary, it is denied. Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Defendant STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 06-2532 Civil Term CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, as follows: Date: 3//s/0 r John H. Pietrzak, Esquire REAGER & ADLER 2331 Market Street Camp Hill, PA 17011-4642 Paul M. Schofield, Jr., Esquire 905 West Sproul Road Suite 105 Springfield, PA 19064 ark W. Allshouse, squire Attorney ID # 780 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Defendant N_ A ?X r -n Ca STRICKLAND BROTHERS CONSTRUCTION, LLC, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CRAIG SEIG, DEFENDANT NO. 06-2532 CIVIL WESTFILED INSURANCE COMPANY IN THE COURT OF COMMON PLEAS OF AS SUBROGEE OF CRAIG SEIG CUMBERLAND COUNTY, PENNSYLVANIA P.O. BOX 5001 WESTFIELD CENTER, OH 44251-5001 PLAINTIFF V. STRICKLAND BROTHERS CONSTRUCTION, LLC., 621 CREEK ROAD CARLISLE, PA 17013 DEFENDANT NO. 08-0423 CIVIL ORDER OF COURT AND NOW, this 29th day of April, 2008, after status conference with counsel and it appearing that all parties agree to consolidation of these cases for trial, IT IS HEREBY ORDERED AND DIRECTED that: A. All Discovery in these cases will be completed on or before July 30, 2008; B. Pre-Trial Motions in this matter shall be filed and the Motions set down for argument on or before August 14, 2008; Argument of any Pre-Trial Motions will be held at Argument Court on September 3, 2008; C. All parties will file a Pre-Trial Memorandum with the Court on or before September 25, 2008, in the following format: 1. A concise statement of factual issues to be decided at trial. II. A list of witnesses the party intends to call at trial along with a concise statement of their anticipated testimony. III. A list of all exhibits each party anticipates presenting at trial. €I I :C d OE ?Jv BBDI ?ps F IV. A statement of any legal issues each party anticipates being raised at trial along with copies of any cases which may be relevant to resolution of the stated issue. V. An estimate of the anticipated time needed for the party to present its case. D. Trial of this matter will be held at 9:00 a.m. on Friday, October 3, 2008, in Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. ? Mark W. Allshouse, Esquire //Attorney for Plaintiff ?John H. Pietrzak, Esquire Attorney for Defendant ---Paul M. Schofield, Jr., Esquire Attorney for Westfield Insurance Company Court Administrator bas 00 pI ES' M.-a r LCL M. L. Ebert, Jr., 2 By the Court, STRICKLAND BROTHERS CONSTRUCTION, LLC, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CRAIG SEIG, DEFENDANT NO. 06-2532 CIVIL WESTFILED INSURANCE COMPANY IN THE COURT OF COMMON PLEAS OF AS SUBROGEE OF CRAIG SEIG CUMBERLAND COUNTY, PENNSYLVANIA P.O. BOX 5001 ; WESTFIELD CENTER, OH 44251-5001: PLAINTIFF V. STRICKLAND BROTHERS CONSTRUCTION, LLC., 621 CREEK ROAD CARLISLE, PA 17013 DEFENDANT NO. 08-0423 CIVIL ORDER OF COURT AND NOW, this 6th day of October, 2008, after the first day of testimony in the Non-Jury Trial in this matter, it appears that possibly 2 more days will be needed, IT IS HEREBY ORDERED AND DIRECTED that the continuation of the Non-Jury Trial will be held on Wednesday, February 18, 2009, at 9:00 a.m. and Friday, February 20, 2009, at 9:00 a.m. in Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, ark W. Allshouse, Esquire Attorney for Plaintiff Ahn H. Pietrzak, Esquire Attorney for Defendant .,4d*aul M. Schofield, Jr., Esquire Attorney for Westfield Insurance Company Court Administrator _ bAs I vib ar bas A?l X"A' I - M. L. Ebert, Jr., J. A '6 S :01 WV 9- 190 BUZ M ' ? 1 t1? STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2532 CIVIL TERM CRAIG SEIG, V. Defendant WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff CIVIL ACTION - LAW IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-0423 CIVIL TERM V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant : CIVIL ACTION - LAW IN RE: NON-JURY TRIAL ORDER OF COURT _f AND NOW, this 1St day of April, 2010, after nonjury trial in the above captioned matter, the verdict of the Court is as follows: L On Strickland Brothers Construction, LLC's claim of breach of contract by Seig (Plaintiff's Complaint, Count I) the Court finds in favor of Seig and against Strickland Brothers Construction, LLC. 2. On Strickland Brothers Construction, LLC's claim of unjust enrichment (Plaintiff's Complaint, Count II) the Court finds in favor of Strickland Brothers Construction, LLC and against Seig and awards the amount of $12,907.77. 3. On Seig's claim of breach of contract by Strickland Brothers Construction, LLC, (Defendant's Counterclaim, Count I) the Court finds in favor of Seig and against Strickland Brothers Construction, LLC, and awards damages in the amount of $500.00. 4. On. Seig's claim of the violation 73 Pa.C.S.A. §201-2(4)(xvi) of the Unfair Trade Practices and Consumer Protection Law, (Defendant's Counterclaim Count II), the Court finds in favor of Strickland Brothers Construction, LLC, and against Seig. 5. On Westfield's claims of (1) breach of contract, (Westfield's Complaint, Count I), (2) breach of warranty, (Westfield's Complaint, Count II), and (3) negligence (Westfield's Complaint, Count III), the Court finds in favor of Westfield and against Strickland Brothers Constriction, LLC, and awards damages in the amount of $18,569.61. By the Court, V M. L. Ebert, Jr., J. Mark W. Allshouse, Esq. Attorney for Strickland Brothers Construction, LLC Paul M. Schofield, Jr., Esq. Paul F. D'Emilio, Esq. Attorneys for Westfield Insurance Company as Subrogee of Craig Seig ../John Pietrzak, Esquire Attorney for Craig Seig (26 ?S rn? c l?c,? 2 STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2532 CIVIL TERM V. CRAIG SEIG, Defendant WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff : CIVIL ACTION - LAW IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-0423 CIVIL TERM V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant : CIVIL ACTION - LAW IN RE: NON-JURY TRIAL OPINION and ORDER OF COURT Ebert, J., April 1, 2010 - FINDINGS OF FACTS Strickland Brothers Construction, LLC (hereinafter SBC) is a corporation organized and existing under the laws of Pennsylvania, doing business in Pennsylvania, with its principle place of business at 623 Creek Road, Carlisle, PA 17013. Morris Jeffrey Strickland (hereinafter J. Strickland) is a fifty percent owner of SBC.' Matthew Gordon Strickland (hereinafter M. Strickland) is the other fifty percent owner.2 Craig Seig (hereinafter Seig) owns Lot No. 6, Longs Gap Road, Carlisle, PA.3 Westfield Insurance Company (hereinafter Westfield), subrogee ' Notes of Testimony, Oct. 3, 2008, p. 5 (hereinafter N.T. Day 1 at ?. ' N.T. Day 1 at 5. 3 Notes of Testimony, Feb 18, 2009, p. 8 (hereinafter N.T. Day 2 at 3 of Seig, is a corporation authorized to do business in Pennsylvania, having an office at P.O. Box 5001, Westfield, OH 44251-5001. On September 11, 2005, Seig met J. Strickland and reviewed the plans and proposals for construction of a residential home on Lot No. 6 along Longs Gap Road in North Middleton Township. They discussed what each party's scope of work would be.4 SBC's scope of work generally included pouring the foundation, laying the deck, framing of the interior and exterior walls, finishing the exterior with siding and constructing the roof.' Construction of the roof in this case consisted of installing pre-engineered roof trusses supplied by PB Truss Inc., laying 4 x 8 sheets of oriented strand board (O.S.B.) over the roof trusses, laying tar paper over the OSB, and then installing 30 year architectural shingles.b Seig's scope of work included the excavation, all interior work, and the installation of exterior doors and windows. During the meeting Seig was advised that both J. Strickland and M. Strickland would be taking vacation during November of 2005.8 On September 26, 2005, settlement on the construction loan from Commerce Bank to Craig Seig was completed.9 Additionally, even though Seig has maintained that he was serving as the general contractor of this project, he allowed Plaintiff's Exhibit No. 1 to be presented to the bank in order to give the impression to the bank that he had hired a general contractor. Seig's motive for doing this is clear. It was necessary because banks were reluctant to grant constriction loans directly to property owners who had not hired legitimate recognized 4 Stip. of Facts at 1, N.T. Day 1 at 8, N.T. Day 2 at 9. 5 N.T. Day 2 at 11. 6 Plaintiff's Exhibits 1, 3. 7 N.T. Day 2 at 10. s Stip. of Facts at 1. 9 Stip. of Facts at 1. 4 contractors. 10 This explains why Seig went through with the closing utilizing Plaintiff's Exhibit No. 1 even though he felt that he was between a "rock and a hard place."" At settlement, J. Strickland stated that the house would be under roof by Christmas of 2005 and completed within six months. 12 The Court finds that the December 25 date was a reasonable estimate, but one which could be easily impacted by factors such as weather and completion of excavation. There is no signed document that specified when the house would be under roof 13 The Construction Loan Agreement between Seig and Commerce Bank set April 26, 2006, as the time limit for the completion of the project. 14 April 26, 2006, was six months plus an additional thirty-day grace period from the date of settlement. 15 The end loan interest rate was locked in until April 26, 2006.16 SBC maintains that they never agreed to finish the home in six months and that they normally recommend a twelve month term for construction. 17 The Court does not find this credible. Clearly, when J. Strickland went to the construction loan closing, he signed a "Guarantee of Completion and Performance" which said that the project would be "substantially completed within the time limits set forth in the construction loan agreement." The construction loan agreement signed by Seig at the same closing clearly indicates at page 4 "borrower (emphasis added) agrees to complete the project for purposes of final payment to the general contractor on or before April 26, 2006, regardless of the reason for any delay."18 10 N.T. Day 1 at 7. 11 N.T. Day 2 at 12. 12 N.T. Day 1 at 169. 13 N.T. Day 1 at 176. 14 N.T. Day 1 at 165. 15 N.T. Day 1 at 165. 16 N.T. Day 1 at 169. 17 Plaintiff's Ex. 15. is Def. Ex. 4, N.T. Day 1 at 163-164. 5 SBC was to be paid for their work from the draw schedule established by the Construction Loan Agreement.19 The previously agreed upon breakdown of the scope of work was not reflected in any contract signed by both parties. 20 SBC has consistently maintained that the document presented to the Court as Plaintiff's Exhibit No. 1 constitutes a "construction agreement" which was in essence the contract between SBC and Seig to construct the home in question. The Court having examined the document and the context in which it was utilized finds that this was not a written construction contract. In reality, SBC provided this document to Seig in order to establish for the bank the general specifications of the house being built and the cost of construction. 21 Plaintiff's Exhibit No. 1 lists the construction cost as $253,000.00. Commerce Bank provided a construction loan for $250,000.00 and Seig provided the additional $3,000.00 as evidenced in Defendant's Exhibit No. 8, the "Advance Schedule," to cover the total construction cost of $253,000.00 reflected in Plaintiff's Exhibit No. 1. SBC had scheduled Peifer Construction (hereinafter PC) to pour the footers for the foundation on October 11, 2005. Seig was responsible for excavation of the hole in which the foundation footers and concrete basement walls were to be built. However, Seig's excavator, Mike Neidig (hereinafter Neidig), did not even start excavation until October 17, 2005, and completed the excavation on October 19, 2005.22 Consequently, since the hole was not even dug by the time PC's footer crew arrived on October 11, 2005, to begin pouring the footers, PC rescheduled this work for their next available date which was not until November 16, 2005. The footers were completed on November 19, 2005. On November 29, 2005, PC began to pour the concrete basement walls which were completed on December 1, 2005. Consequently, the Court finds that at least one month of construction time was lost as a result of Seig not having the 19 N.T. Day 2 at 12. 20 N.T. Day 2 at 12, N.T. Day 2 at 16. 2' N.T. Day 2 at 14 -15. 22 Stip. of Facts at 1, N.T. Day 2 at 80, N.T. Day 2 at 20. 6 basement excavation completed prior to PC's first scheduled date for the pouring of the footers which was October 11, 2005. A question arose as to who was responsible to backfill the foundation. Seig states that SBC told him they would backfill the foundation free of charge. Later, after the basement walls were finished, he says M. Strickland told him that SBC's excavator was unable to do the job. Seig immediately arranged for and paid Neidig to backfill the foundation. 2' Backfilling was completed on December 19, 2005.24 This Court finds that Seig was responsible for "excavation." In this type of construction, excavation includes not only digging the hole but backfilling the foundation. However, this dispute is of little moment in this case. SBC always charged Seig for anything done in the constriction of this home. There is no evidence whatsoever that SBC would have gratuitously done the backfilling of this foundation for free. Accordingly, whether Seig paid to backfill the foundation or would have been charged by SBC for backfilling, the money still would have come out of the account created by the Commerce Bank construction loan. The Court does find that in the construction industry, it is customary to allow the concrete basement walls to cure before backfilling and framing begins. Again backfilling was completed on December 19, 2005, and that was the date that SBC had the lumber for the framing delivered to the site and set the steel I-beam and lolly columns necessary to support the deck. Thus the period of time between December 1 and December 19, 2005, was not a period of unexplained delay which can be attributed to SBC.25 Snowfall prevented SBC from pouring the concrete floor in the basement.26 Instead SBC proceeded with the construction of the deck and the exterior and interior walls.27 The Court 1`3 N.T. Day 2 at 11, 24 - 26. - N.T. Day 2 at 25. 25 Plaintiff's Ex. 3, 4, and 15, N.T. Day 1 at 22. 26 N.T. Day 2 at 27 -28. 7 finds that SBC proceeded with constructing the deck and the walls so that the roof could be completed thereby making the rough framing watertight and allowing all the inside work to proceed. Pouring the final concrete basement floor was definitely something that could have been completed at a later date and did not in any way delay construction of this home. In essence, Seig's shoveling and melting of the snow between Christmas and New Year 2005 was totally unnecessary. On January 20, 2006, the walls were complete and ready for SBC set the roof trusses. 28 This Court finds that SBC provided insufficient temporary bracing for the roof truss system, and did not meet industry standards regarding the type of bracing that was required for these trusses. 29 Per industry standards, a complete temporary bracing system for the roof truss system should have secured the first truss with adequate ground bracing. As additional trusses are set longitudinal and diagonal bracing are required.30 This Court finds that SBC failed to provide sufficient ground bracing of the sheathed gable end trusses and clearly insufficient longitudinal and diagonal bracing for this roof truss system. Given the size of the gable end trusses, and the fact that they were delivered to the home site with the external plywood sheeting already installed, they presented a very large solid surface (similar to a giant sail) which would be especially vulnerable to high winds. 31 As a direct result of this insufficient bracing by SBC, the roof truss system collapsed on January 21, 2006, during a period of wind gusts which may have reached 32-45 miles per hour.32 Had the bracing on the truss system been correctly installed, the trusses would have been able to 27 N.T. Day 2 at 28. 1-8 Stip. of Facts at 1. 29 N.T. Day 2 at 170. 30 N.T. Day 2 at 170-171. 31 Def. Ex, 26, N.-F. Day 2 at 178. 32 Def. Ex. 23 8 withstand such wind force. 33 Clearly, SBC as an experienced construction firm should have anticipated that bad weather in the winter often comes with higher winds requiring more than minimal bracing. The sheathed front gable end truss toppled inward, the sheathed rear truss and the sheathed left end truss toppled out away from the home. 34 The trusses between both gable ends collapsed in a similar orientation as the gable ends. 35 The collapse caused damage to both the roof trusses and some framed walls. 36 The Court finds that the trusses shown in Defendant's Exhibit No. 11 were damaged such that they were not suitable for reuse. 37 Accordingly, an entire new set of trusses was ordered and installed by Fulmer Construction Services. R. J. Potteiger Construction Services Inc. removed the first set of damaged trusses. 38 Westfield was the insurance company Seig selected to insure the construction project as required by Commerce Bank as a condition of their granting Seig the construction loan. 39 All told, Westfield paid Craig Seig $18,569.61 as settlement for the claim associated with the collapsed damaged trusses. Additionally, Craig Seig had a $500.00 deductible on this policy for a total damage claim of $19,069.61.40 After collapse of the trusses, uncertainty reigned with regard to completion of the project. According to J. Strickland, SBC contacted Seig and advised him to call his insurance company in order to determine how to proceed. SBC did tell Seig that they would reset the trusses that weren't damaged, order new ones to replace the damaged trusses and proceed with the project. 33 Def. Ex. 26, N.T. Day 2 at 181. 34 Def. Ex. 26. 32 Def. Ex. 26. 36 Def. Ex. 11, N.T. Day 2 at 46. " Def. Ex. 11, N.T. Day 2 at 187-188. 38 Def. Ex. 16, N.T. Day 2 at 46. 39 Def. Ex. 4, N.T. Day 2 at 148-149. " Def. Ex. 15 9 SBC indicated that they could "fix it" and that it would take about a week.41 Seig never returned any of SBC's calls after January 21, 2006. Having viewed the damage to his home, Seig naturally lost confidence in the construction ability of SBC. On January 26, 2006, Seig's attorney sent SBC a letter terminating the construction contract with SBC. Seig claimed untimely performance and defective workmanship. Seig requested an accounting of the first $37,000.00 draw made on the construction loan, and advised SBC if they wanted payment beyond the initial $37,000.00 draw they would be required to provide documentation of all materials and manpower used.42 The Court finds that Seig did legitimately terminate the construction contract based on SBC's defective workmanship in setting and bracing the roof trusses. Seig has not proven his claim of untimely performance. Westfield, as the insurer, paid for all materials, to include a new set of trusses and the labor to remove the old trusses and set new trusses.43 Again, the total payment was $19,069.61 which included Seig's $500.00 deductible. SBC was not invited back on site and did not perform any work after the January 26, 2006, notice of termination.44 Interestingly, an examination of the invoices relating to the damaged trusses provides the Court with some insight on how long it took to repair the damage. The new trusses from PBS Truss, Inc. were scheduled for delivery to the site on February 2, 2006. Fulmer Construction Services' invoice which includes the labor for resetting the trusses is dated 2/16/06. R.J. Potteiger Construction Services provided "roof materials" for Seig's home by invoice dated February 7, 2006. While R.J. Potteiger Construction Services final invoice for removal of the first set of damaged roof trusses is not dated until April 6, 2006, it is apparent to this Court that having the damaged roof trusses 41 N.T. Day 2 at 41. 42 Def. Ex. 14 43 N.T. Day 2 at 157-158. 44 Stip. of Facts, Para. #12. 10 on the home site would not have in any way delayed the project. Accordingly, the Court finds that the roof on Seig's home was completed on or about February 16, 2006, approximately 27 days from the collapse of the first set of trusses.45 After terminating SBC from the project, Seig proceeded finishing the house on his own. As he has maintained throughout the course of this proceeding, he did in fact become the general contractor of this construction project. Seig testified that he had no agreement with Commerce Bank which allowed them to control who would be the builder after he terminated SBC.46 Seig indicated that he along with this father, brother-in-law and a friend of his father's did a lot of the work.47 Additionally, Seig hired other subcontractors to complete the home and they were paid from the Commerce Bank draw schedule.48 Seig maintains that he did not complete the house by March 26, 2006.49 Gethen Wilson, mortgage originator with Commerce Bank, attempted to explain the March 26 date as the date the house was to be completed. She stated April 26, 2006 was simply a date which represented an additional 30 day grace period which she always included in construction agreements. Be that as it may, this Court finds that the only stated "completion date" contained in the construction loan agreement was April 26, 2006.50 Based on this, Seig, as general contractor, had a period of three months from January 26, 2006, to April 26, 2006, to complete his home. All of this has significance for only one purpose, that being Craig Seig's claim that he is owed damages in excess of $70,000.00 as a result of additional interest payments he will have to pay as a result of Commerce Bank increasing his locked in mortgage rate from 5.375% to 4' Def. Ex. 16. 46 N.T. Day 2 at 73. 47 N.T. Day 2 at 70. 48 N.T. Day 2 at 73-74. 49 N.T. Day 2 at 20. so plaintiff's Ex. 2, N.T. Day 1 at 165. 11 6.375% by their letter dated May 12, 2006.51 Two points are of interest here. First, Commerce Bank obviously didn't consider the completion date to be March 26, 2006, or they would have advised Seig of the new interest rate much earlier. Second, Seig specifically testified that after the roof truss system collapsed, he talked with Commerce Bank the next morning and "the bank told me to terminate the Strickland Brothers."52 The Court notes that unlike the negotiations that preceded approval for the construction loan, Commerce Bank no longer required Seig to have a separate general contractor to complete his home. Clearly Commerce Bank's interest in completing Seig's home was nil. Their motive for this attitude is obvious. They were the ones who would benefit from the increased interest rate if completion of the home was delayed. The Court finds that SBC will not be held responsible for the final delay, and accordingly SBC will not be required to pay damages for the extra interest the Defendant claims he now has to pay. Seig's own delay in completing the excavation caused at least one month delay in the construction. This delay dictated that the roof truss system would have to be installed in January. Accordingly, subtracting one month from the final completion date would have brought the project's completion within the final April 26, 2006, deadline. This Court finds that this home could have been completed by April 26, 2006, even given the truss collapse and that the final delay is not attributable to SBC. SBC received the first construction draw from Commerce Bank in the amount of $37,500.00.53 SBC used $31,282.77 to pay its subcontractors and retained the remaining $6,217.23.'4 SBC also claimed $540.00 for the rental of a trash pump to Seig which he utilized in pumping out his basement. SBC owned the pump and allowed Seig to use it. It wasn't until after Seig terminated SBC, that SBC decided to charge Seig for the pump rental. Accordingly, " Def. Ex. 5. 52 N.T. Day 2 at 43. 53 Stip. of Facts at 12. 54 Stip. of Facts at 2. 12 the Court finds that Seig never agreed to pay for the rental of the pump nor was payment for use of this pump ever anticipated by either party. Accordingly, the $540.00 claim for the pump rental is denied. At issue then is the legitimate amount of money owed to SBC for its framing of the home prior to the roof truss collapse. Clearly from the record, SBC was not keeping a daily log of its man hours expended on this project. J. Strickland admits that he did not keep a daily log and only created the compilation of hours after being terminated and told by Seig's attorney to provide such an accounting. SBC claims that they spent 505 man hours on the project. In examining Plaintiff's Exhibit No. 4, this amount of hours includes 50 hours for setting the trusses which eventually collapsed. Obviously, given SBC's defective workmanship in setting the trusses they cannot claim reimbursement for these hours. Accordingly, SBC's total claim for hours is 455 hours. Seig on the other hand utilizing a construction program on his computer calculated that given the amount of work done, SBC would have only expended 348 hours. SBC claims labor costs at $45 an hour based on the rate they normally charge other people for odd jobs that are done on an hourly basis. 55 Seig maintains that the labor costs should be $33 an hour because SBC is a nonunion firm and he claims that only union builders would get $45 an hour. Seig's approach is not persuasive. In essence he admits "builders" do get $45 an hour and since there was no agreed upon hourly rate, the Court finds that SBC's use of the rate they normally charge people for hourly projects is reasonable. Accordingly, the Court will compute the labor costs at $45 an hour. ss N.T. Day 1 at 41. 13 Again, SBC admits that its written logs of the hours found in Plaintiff's Exhibit No. 4 "weren't meant to be the gospel truth of every day."56 In examining Plaintiff's Exhibit No. 4, the Court finds that SBC's claim of 60 man hours to set the I-beams and lolly columns and laying out the sill plate is exaggerated. The Court finds that this work should have been completed in no more than 30 man hours. The remainder of the time allocated to lay the floor joists, sheet the deck, frame the exterior and interior walls, and sheet the outside walls does appear reasonable. Thus subtracting the time spent on setting the trusses (50 hours), and the over estimated time for setting the I-beams and laying the sill plates (30 hours) reduces SBC's claimed labor hours to 525. In essence, this is within 77 hours of Seig's own estimate. Again, basically considering a 5 man crew which generally worked 10 hour days brings the 2 estimates to within a difference of only 1 %2 days. The Court does find from its examination of the photographs and video tapes of the project (Defendant's Exhibits 11, 12, 17) that SBC did frame the home in a workmanlike manner. Thus the value of the labor expended by SBC up to the setting of the trusses is 425 hours at $45 an hour for a total of $19,125.00. It is interesting to note that SBC's attorney in his proposed settlement letter dated February 1, 2006, requested $23,265.00 for "design and framing labor." Equally important is the fact that the fax from Seig's attorney to Seig dated February 2, 2006, indicates "the amount requested is probably pretty close to what you thought SBC was owed. ,57 (emphasis added) DISCUSSION This case presents the not uncommon scenario of a property owner with some construction experience choosing to serve as his own general contractor in the construction of his personal home. Having made the decision to serve as his own general contractor, he needed to 56 N.T. Day 1 at 35. 57 Plaintiff's Ex. 15. 14 find another contractor to do what in the trade is referred to as the "rough framing." This basically consists of laying the foundation, putting on the floor deck, framing the outside and inside walls, and putting on the roof. Seig then wanted to control the completion of the inside work such as dry walling, plumbing, heating, painting, flooring, and carpeting etc. In seeking such a contractor he found that most contractors did not want to perform just rough framing and preferred to build the entire home themselves. 58 SBC maintains that it was the "General Contractor," and that it was simply going to utilize the subcontractors named by Seig to perform the tasks necessary to finish the house. This appears unlikely in that nothing in the record suggests that SBC even talked to any of the subcontractors for electric, plumbing, HVAC, insulation, etc. Without such bids and agreements, it would be impossible for SBC to know the final cost of the project. However, resolution of the issue as to who really was the "General Contractor" is not necessary to resolve this case given the fact that SBC was legitimately terminated as Seig's contractor even before the "rough framing" was complete. In any regard, the various causes of action to be decided by the Court in this case are as follows: 1. SBC's claim of breach of contract by Seig (Plaintiff's Complaint, Count I). 2. SBC's claim of unjust enrichment (Plaintiff's Complaint, Count II). 3. Seig's claim of breach of contract (Defendant's Counterclaim, Count I). 4. Seig's claim of violation § 201-2(4)(xvi) of The Unfair Practices and Consumer Protection Law (UPCPL) (Defendant's Counterclaim, Count II). 5. Westfield's claim of breach of contract (Westfield's Complaint, Count I). 6. Westfield's claim of breach of warranty (Westfield's Complaint, Count II). 58 N.T. Day 2 at 8, 9. 15 7. Westfield's claim of negligence (Westfield's Complaint, Count III). Based on these causes of action, each party claims damages against the other. The Court will now discuss the causes of action seriatim. L Breach of Contract All parties have claimed in essence that the other breached the construction contract. "A breach of contract claim in Pennsylvania requires three elements: (1) the existence of a contract (2) a breach of a duty imposed by the contract and (3) resulting damages." J.F. Walker Co., Inc. v. Excalibur Oil Group Inc., 792 A.2d 1269, 1272 (Pa. Super. 2002), citing Williams v. Nationwide Mut. Ins. Co., 750 A.2d 881, 884 (Pa. Super. 2000). Contrary to SBC's pleadings, the Court agrees with Defendant Seig that there never was a written construction contract agreed to by the parties. This, however, is not fatal to a breach of contract claim. "In cases involving contracts wholly or partially composed of oral communications, the precise content of which are not of record, Courts must look to the surrounding circumstance and course of dealing between the parties in order to ascertain their intent". Refuge Mamt. Sys. v. Consol Recycl Sys., 671 A.2D 1140 (Pa. Super. 1996). An agreement is a valid and binding contract if the parties have manifested intent to be bound by the agreement's terms, the terms are sufficiently definite, and there is consideration. Johnston the Florist Inc. v. TEDCO Connt Corp., 657 A.2d 511 (Pa. Super. 1995). There is no doubt that there was an oral contract between SBC and Craig Seig that at a minimum SBC would construct the rough frame of a ranch home pursuant to house plan No. 9812 entitled "The Brownstone" on Seig's property on Longs Gap Road. This would include building the basement walls, the floor deck, the outside and inside stud walls and the roof, complete with shingles. Here SBC had completed the foundation for the house and was 16 performing the framing. Seig was adequately satisfied with SBC's performance such that he did not object to SBC taking the initial draw of $37,500.00. This Court finds that SBC did breach this contract to frame the home. SBC had a duty imposed by the contract to install in a workmanlike manner a safe and secure roof truss system. SBC breached this duty by not installing sufficient temporary bracing during installation of the roof trusses. As a direct result of this breach, the roof truss system collapsed during a period of wind gusts. This collapse caused damage to Seig's property. The damage consisted of the broken roof trusses and some additional, relatively minor damage to the framed walls of the home. Damages for defective performance of a building contract are determined by the reasonable cost of correcting the defects. Fetzer v. Vishneski, 582 A.2d 23 (Pa.Super. 1990). Here the damage cost $19,069.61 to repair and equals the sum paid by Westfield on the insurance claim ($18,569.61) plus Seig's $500.00 deductible. In regard to Seig's additional claims of SBC's supposedly deficient work, we find for SBC. Basically, Seig claims that SBC improperly framed the rough openings for certain windows and doors, improperly framed the tub space in the small bathroom, and failed to align the knockout holes in the floor truss joists. Additionally, Seig complained about the way the sill plate was attached to the steel I-beam and some additional concrete work that was needed to complete the front porch. In examining Defendant's Exhibit Number 22, Seig claims these various "deficiencies" resulted in damages amounting to $8,824.54. In a bench trial it is the duty of the trial Judge to judge credibility of witnesses and to weigh their testimony. Weir b Gasper v. Estate of Ciao, 556 A.2d 819 (Pa. 1989). In any case, the finder of fact is entitled to weigh the evidence presented and assess its credibility. The finder of fact is free to believe all, part or none of the evidence presented. Smith v. Smith, 904 A.2d 15 (Pa.Super. 2006). Here, the Court finds that the defects claimed by Seig are typical minor problems that a contractor would routinely 17 correct. This Court finds as fact that the additional damages claimed by Seig are not supported by the evidence and in any regard, did not require $8,824.54 worth of repairs. See, Pittsburgh Const. Co. v. Griffith, 834 A.2d 572 (Pa.Super. 2003). Accordingly, this claim is denied. Although SBC made statements to Seig at settlement that the house would be under roof by Christmas of 2005, SBC is not responsible for the delay in the construction and failure to meet that date. Seig was responsible for scheduling the excavation. Seig was aware when hiring SBC, that J. and M. Strickland would both be taking vacation during November. The delay of the excavation. by Seig resulted in the rescheduling and a subsequent delay in the pouring of the footers and walls. That delay coupled with the agreed upon vacation of J. and M. Strickland, caused the delay in the construction of the house and meant that it could not be under roof by Christmas of 2005 as previously planned. The failure to meet the April 26, 2006 date set by the Construction Loan Agreement that resulted in a higher end loan rate must be born by Seig. R Unfair Trade Practices and Consumer Protection Law Seig has filed a counterclaim against SBC for violation of the Unfair Trade Practices and Consumer Protection Law. Specifically Seig maintains that SBC violated §201-2(4)(xvi) of the UTPCPL. That section reads as follows: (xvi) Making repairs, improvements or replacements on tangible real or personal property, of a nature or quality inferior to or below the standard of that agreed to in writing; (emphasis added) 73 Pa.C.S.A. §201-2(4)(xvi). Interestingly, in his answer to SBC's complaint, Seig basically maintains that there never was any written agreement with SBC. However, for the purposes of satisfying the writing requirement for his UTPCPL violation counterclaim, he maintains that Plaintiff's Exhibit #1 is the writing in which SBC agreed to construct the home in a manner which would not be inferior to or below the standard normally expected in such work. 18 As previously stated the work that SBC did on Seig's home up to the point of setting the roof truss system was satisfactory and done in a good and workmanlike manner. As discussed in other portions of this opinion, SBC was under a duty and did warrant that it would construct Seig's home in a reasonable workmanlike manner which would be fit for habitation as a residential dwelling. However with regard to this counterclaim, under the UTPCPL, the "standard" must be agreed to in writing. Goldstein v. Bison Bede Ltd., 2009 WL 2710235 (E.D. Pa. 2009). See also, Com. v. Burns, 663 A.2d 308 at 311 (Pa.Cmwlth. 1995). An examination of Plaintiff's Exhibit #1 does have a section designated "Design specifications and standards " Close examination of this portion of the exhibit however says absolutely nothing about the roof truss system. The only thing mentioned which even applies to the roof is that SBC would utilize "Elk 30-year architectural shingles." This Court finds that to prove a violation of §201-2(4)(xvi) of the UTPCPL utilizing Plaintiff's Exhibit #1 as the "writing," would require, for example that SBC used 2 x 4 lumber in the exterior construction, rather than the standard stated in the document which called for 2 x 6 lumber for exterior construction. In any regard, the Court finds there was no "standard" agreed to in writing, and accordingly, Defendant Seig cannot recover for this counterclaim under the UTPCPL. III. Breach of Warranty Westfield, who insured this construction project and is the subrogee of Seig, maintains that SBC breached their warranty that they would construct the roof truss system in a workmanlike, merchantable manner, and that the truss system would be fit for the purpose of supporting the finished roof. In Pennsylvania, the Courts have recognized that a builder, when contracting with a landowner to construct a residential home on the owner's land, impliedly warrants that the structure will be erected in workmanlike manner. Groff v. Pete Kingsley Bldg 19 Inc., 543 A.2d 128 (Pa. Super. 1988), In re Gordon Urmson Builder & Sons Inc., 295 B.R. 546 (US Bkrtcy. W.D. Pa. 2003). The Court finds that SBC, at a minimum, impliedly warranted that their construction work, including construction of the roof truss system, would be done in a workmanlike manner and fit for the purpose for which it was intended. SBC, as a home construction company, knew the particular purpose for which the roof truss system was intended. Seig, as the buyer, relied on the skill and judgment of SBC to construct the roof truss system, in a manner such that it would support the home's roof and not fall down. SBC breached this warranty. The temporary bracing was clearly insufficient and did not meet with industry standards. Due to this insufficient bracing, the roof truss system collapsed. Without question this truss system was not constructed in a workmanlike manner. The breach of this warranty resulted in a loss to Westfield in the amount of 518,569.61. IV. Negligence Westfield has filed a claim for negligence. "The prima facie elements of a negligence cause of action are: (1) a duty or obligation recognized by law; (2) a breach of the duty; (3) causal connection between the actor's breach of the duty and the resulting injury; and (4) actual loss or damage suffered by complainant." Cooper v. Frankford Health Care System Inc., 960 A.2d 134 (Pa. Super. 2008). This Court finds that SBC acted negligently in that they failed to properly install a safe roof truss system for Seig. SBC had both a duty and an obligation during the construction phase to properly brace the roof truss system in an adequate manner. SBC breached that duty by disregarding the industry standards and using clearly insufficient bracing for this roof truss system especially given that it was constructed during the winter season. As a direct result of this insufficient bracing, the roof truss system collapsed during a period of wind gusts. This collapse caused damage to Seig's property, which included the fallen and broken 20 roof trusses and some minor damage to the framed walls of the home. This damage resulted in an actual financial loss to Westfield in the amount of $18,569.61. Therefore, this Court finds that SBC acted negligently because they had a duty to properly brace and construct the roof truss system, they breached that duty by providing insufficient bracing, and the breach of the duty resulted in damage to Seig's property, and an actual financial loss to both Seig and Westfield. V. Unjust Enrichment "To sustain a claim of unjust enrichment, a claimant must show that the party against whom recovery is sought either "wrongfully secured or passively received a benefit that it would be unconscionable for her to retain." Roman Mosaic & Tile Co., Inc. v. Vollrath, 313 A.2d 305, 307 (Pa. Super. 1973). "In order to recover, there must be both (1) an enrichment, and (2) an injustice resulting if recovery for the enrichment is denied." Torchia on Behalf of Torchia v. Torchia, 499 A.2d 581, 582-83 (Pa. Super. 1985). SBC contends that Seig was unjustly enriched by the labor SBC expended in framing Seig's home before Seig terminated the contract. This Court finds that Seig was unjustly enriched. Seig has passively received a benefit that would be unconscionable for him to retain. Generally speaking the doctrine of unjust enrichment is inapplicable when the relationship between the parties is founded on a written agreement or express contract. Roman Mosaic & Tile Co., Inc. v. Vollrath, 313 A.2d 305, at 307 (Pa. Super. 1973). In this case, the Court has found that initially there was an express oral agreement between Seig and SBC. However the law does recognize that "where a party justifiably refuses to perform on the ground that his remaining duties of performance have been discharged by the other party's breach, the party in breach is entitled to restitution for any benefit that he has conferred by way of part performance or reliance in excess of the loss that he caused by his own breach." Restatement, 21 2°d, contracts §374. The illustrations provided in §374 of the restatement are remarkably similar to the fact scenario presented here. In this case, SBC orally agreed to frame Seig's house. Seig agreed to pay for this work. Because SBC breached the contract by failing to properly brace the roof trusses causing their collapse and damage, Seig was justified in terminating the construction contract. SBC has been held responsible for the loss caused by his own breach in that it must pay Westfield $18,569.61 and Craig Seig his $500.00 deductible on the Westfield policy for the total damages caused by SBC of $19,069.61. This Court has determined that SBC expended 425 hours of labor at a value of $19,125.00. From this sum, the amount of $6,217.23, the amount SBC retained from the initial $37,500.00 construction draw, must be deducted. Accordingly, the Court awards SBC the sum of $12,907.77 on its unjust enrichment claim. Accordingly the following order is entered: ORDER OF COURT AND NOW, this I" day of April, 2010, after nonjury trial in the above captioned matter, the verdict of the Court is as follows: 1. On Strickland Brothers Construction, LLC's claim of breach of contract by Seig (Plaintiffs Complaint, Count I) the Court finds in favor of Seig and against Strickland Brothers Construction, LLC. 2. On Strickland Brothers Construction, LLC's claim of unjust enrichment (Plaintiff's Complaint, Count II) the Court finds in favor of Strickland Brothers Construction, LLC and against Seig and awards the amount of $12,907.77. 22 3. On Seig's claim of breach of contract by Strickland Brothers Construction, LLC, (Defendant's Counterclaim, Count I) the Court finds in favor of Seig and against Strickland Brothers Constriction, LLC, and awards damages in the amount of $500.00. 4. On Seig's claim of the violation 73 Pa.C.S.A. §201-2(4)(xvi) of the Unfair Trade Practices and Consumer Protection Law, (Defendant's Counterclaim Count II), the Court finds in favor of Strickland Brothers Construction, LLC, and against Seig. 5. On Westfield's claims of (1) breach of contract, (Westfield's Complaint, Count I), (2) breach of warranty, (Westfield's Complaint, Count II), and (3) negligence (Westfield's Complaint, Count III), the Court finds in favor of Westfield and against Strickland Brothers Construction, LLC, and awards damages in the amount of 518,569.61. By the Court, ??l ?AA M. L. Ebert, Jr., J. Mark W. Allshouse, Esq. Attorney for Strickland Brothers Construction, LLC Paul M. Schofield, Jr., Esq. Paul F. D'Emilio, Esq. Attorneys for Westfield Insurance Company as Subrogee of Craig Seig John Pietrzak, Esquire Attorney for Craig Seig 23 Fri FG-t t-fiICE OF " PP,MHC+K,7ARy Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff 2010 APR 15 PM 2: 41 CUMBEF"ILMD COUNTY PEWMAN 'IS STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 06-2532 Civil Term : CIVIL ACTION- LAW WESTFIELD INSURANCE COMPANY IN THE COURT OF COMMON PLEAS AS SUBROGEE OF CRAIG SEIG, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant NO. 08-0423 Civil Term CIVIL ACTION -LAW MOTION FOR POST-TRIAL RELIEF REQUESTING MODIFICATION OF DECISION AND NOW comes Plaintiff, Strickland Brothers Construction, LLC by and through its attorney, Mark W. Allshouse, Esquire and respectfully files this Motion for Post-Trial Relief Requesting Modification of Decision pursuant to Pennsylvania Rule of Civil Procedure 227.1. 1. Plaintiff, through its counsel, received notice of the filing of a Decision of the Court of Common Pleas of Cumberland County by Honorable Judge M.L. Ebert, Jr., Decision dated April 1, 2010 via first class mail received by the undersigned on Tuesday, April 6, 2010. Therefore, this Motion for Post-Trial Relief is being filed within ten (10) days of the notice of the Decision in this non jury trial matter. 1 2. Plaintiff's Motion for Post-Trial Relief is based upon the evidence and exhibits presented by Plaintiff at trial and set forth in their Findings of Fact and Conclusions of Law submitted to the trial Court prior to its written Decision. 3. The purpose of this Motion is to request the Court to change paragraph 2 of the Court's Decision as to Strickland Brothers Construction, LLC's claim of unjust enrichment (Plaintiff's Complaint, Count II) for the cost of materials. 4. In paragraph 2 the Court found in favor of Strickland Brothers Construction, LLC and against Seig in the amount of Twelve Thousand Nine Hundred Two and 77/100 Dollars ($12,907.77) which amount, according to the Court's Decision, was based upon the Court's determination as to the "legitimate amount of money owed to SBC for its framing of the home prior to the roof truss collapse". (Paragraph 1, page 13 of the Court's Decision). 5. Strickland Brothers Construction, LLC is not seeking a modification of the $12,907.77 amount awarded from the Court representing Strickland Brothers Construction, LLC's labor costs. 6. However, Plaintiff is requesting a modification in the amount awarded for Unjust Enrichment to Plaintiff because the Court's Decision fails to address either affirmatively or negatively Strickland Brothers Construction, LLC's request for an award in unjust enrichment for the materials purchased and services rendered and utilized in Defendant Craig Seig's home from Strickland Brothers Construction, LLC for which no payment or reimbursement was received. 7. The Court correctly found in its Decision that Strickland Brothers Construction, LLC received the first bank draw in the amount of Thirty-seven Thousand Five Hundred Dollars ($37,500) and used Thirty-one Thousand Two Hundred Eighty-two and 77/100 Dollars ($31,282.77) to pay its subcontractors and retained the remaining Six Thousand Two Hundred Seventeen and 23/100 Dollars ($6,217.23). (Last paragraph, page 12 of the Court's Decision). 8. The Court further found that "thus the value of the labor expended by SBC up to and setting of the trusses is 425 at $45 an hour for a total of $19,125." (Court's Decision, third paragraph page 14). Thereafter, the Court credited Strickland Brothers Construction, LLC for the amount retained from the first draw in determining its final award of unjust enrichment of $12,907.77 for its labor. The Decision does not address Strickland Brothers Construction, LLC's additional unreimbursed material costs. 9. Evidence was presented at trial and post-trial that, among other expenses, Strickland Brothers Construction, LLC paid for the trusses from York PB Truss and the crane to set those trusses from its own business funds and that payment for those materials was not made from any portion of the first draw received from Commerce Bank or any other reimbursement. 10. The evidence presented to the Court in support of this proposition is as follows: a. Stipulation of Fact Nos. 15 and 16 which set forth the amount used from the first draw and the specific subcontractors paid, which do not include York PB Truss. b. Stipulation of Fact No. 17 which provides a clear inference that Craig Seig did not make a claim against Strickland Brothers Construction, LLC for the first set of trusses hung on the property because he did not pay for them. A copy of the Stipulations of Fact are attached hereto and made a part hereof as Exhibit "A". The first page of Plaintiff's Exhibit P3, being a breakdown of costs incurred by Strickland Brothers Construction, LLC and its calculation as to the amount that it was due. That breakdown clearly separates materials and subcontractor costs from labor costs. Subtracting out the subcontractors and materials paid from the first draw, leaves a deficit representing subcontractors and materials which have not been addressed in the Court's Decision. For example, from that Exhibit, Strickland Brothers Construction, LLC paid on March 4, 2006 to York PB Truss the amount of Nine Thousand Seven Hundred Fifty-eight and 16/100 Dollars ($9,758.16) after the date of the collapse and termination of the agreement by the parties. A copy of the first page of Plaintiff s Exhibit P3 is attached hereto and made a part hereto as if set forth length for the Court's reference as Exhibit "B". d. Verbal evidence was received by this Court and acknowledged in its Decision that no further draws were received by Strickland Brothers Construction, LLC after the initial draw or after Seig terminated the contract. Plaintiff s Exhibit 15 (a copy of which is attached hereto as Exhibit "C") being the facsimile which the Court references in the bottom of paragraph 2 page 14 of its Decision which indicates in the third paragraph that Defendant Seig is offering the return of the trusses for which Strickland Brothers Construction, LLC paid. Moreover, the final paragraph of that facsimile is a clear acknowledgement by Seig that Strickland Brothers Construction, LLC is responsible for payment of the initial set of trusses which collapsed on January 21, 2006. f. Plaintiff s Finding of Fact and Conclusion of Law No. 22 indicates to the Court that Plaintiff has expended Ten Thousand Eight Hundred Ninety and 04/100 Dollars ($10,890.04) in materials for the construction of Craig Seig's home which amount does not include Plaintiff s labor and is supported by Exhibits P3 and P4 presented at trial. 4 g. Plaintiff's Finding of Fact No. 64 is consistent with the testimony and exhibits set forth herein and states that payment of the original truss materials which collapsed on January 21, 2006 were made by Plaintiff Strickland Brothers Construction, LLC for which they have not been reimbursed or otherwise compensated. A copy of the excerpted relevant Findings of Fact are attached hereto and made a part hereof for the Court's reference as Exhibit "D". 11. The result of the Court's Decision as it now exists is as follows: Strickland Brothers Construction, LLC, being found negligent and an award for damages to Westfield for the payment and re-setting of the second set of trusses, has caused Plaintiff to incur and be liable for twice the damages (paying for two sets of trusses and installation) for a single act of negligence. 12. The result of the current Decision is that Strickland Brothers Construction, LLC is required to pay for two sets of trusses for a single act of negligence, is not in direct correlation to the damages suffered and is more than compensatory. 13. As subrogee, Westfield stands in the shoes of Craig Seig, both having legally suffered the same damage and the same loss of a single set of trusses. 14. Defendant Craig Seig and his insurance carrier did not suffer two separate damages and, as such, should not receive separate damages for a single act of negligence. 15. Moreover, the result of the Decision, which requires Strickland Brothers Construction, LLC to pay for both the initial set of trusses and the second set of trusses, is that Defendant Craig Seig has neither paid the insurance company nor Strickland Brothers Construction, LLC for the trusses currently existing on his home. In effect, he has received free trusses while Strickland Brothers Construction, LLC has been caused to pay for both. 16. Had Strickland Brothers Construction, LLC completed the work and received the amount due under the contract, a portion of the amount due for the materials provided would have been payment for one set of trusses and Strickland Brothers Construction, LLC would have recouped the value of one set of trusses for which it now must pay. 17. As a result of the Court's Decision, Craig Seig has been unjustly enriched in that he has retained the use, benefit and value of a set of trusses for which he has not paid. 18. It is believed this was not the Court's intended result as it is contrary to justice and equity. 19. Plaintiff respectfully requests this Court to reevaluate and reconsider its award of unjust enrichment and to award Plaintiff the additional amount of materials expended toward the purchase and installation of the original set of trusses and construction on Seig's home, for which no reimbursement has been received, in the amount of $10,890.04. WHEREFORE, Plaintiff respectfully requests this Honorable Court to modify its award of unjust enrichment and to award Plaintiff the amount of $10,890.04 along with any additional relief the Court may deem just and appropriate. Respectfully submitted, Date: 05// o Park W. Allshous?, Esquire Attorney I.D. # 78 14 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff Exhibit "A" STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff CRAIG SEIG, v_ Defendant WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-2532 CIVIL TERM IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-0423 CIVIL TERM STIPULATIONS OF FACT L On September 11, 2005, Jeff Strickland and Craig Seig met at Jeff Strickland's house to review plans and proposals for construction of a residential home at Lot No. 6, Longs Gap Road, Carlisle, Pennsylvania and to discuss the scope of each party's work. 2_ During their meeting on September 11, 2005, Craig Seig was advised that both Jeff Strickland and Matthew Strickland would be taking vacation during November 2005. 3. On September 26, 2005, settlement on the construction. loan to Craig Seig from Commerce Bank was completed. 4. Craig Seig was responsible for the scheduling of, and retained control over, the excavation of the foundation for the home through his excavator, Mike Neidig. 5. On November 16, 2005, Peifer Construction began pouring the footers for the foundation. 6. On November 19, 2005, the footers were complete- 7. On November 29, 2005, Peifer Construction began to pour the walls. 8. On December 1, 2005, walls were finished by Peifer Construction. 9. Trusses were set by Strickland Brothers Construction, LLC on January 20, 2006. 10_ The trusses fell on January 21, 2006. The cause of the collapse is in dispute. 11. The trusses fell at or around 1:00 p.m. to 2:00 p.m. on January 21, 2006. 12_ Strickland Brothers was not invited back on site and did not perform. any work after the January 26, 2006 notice of termination. 13. Craig Seig's father videotaped the hanging of the trusses on the home. The videotape is now unavailable for use at trial because it was inadvertently erased. 14. Strickland Bros. received the first construction draw in the amount of $37,500.00. 15. Strickland Bros. used $31,282.77 from the first construction draw to pay its subcontractors, leaving a balance of $6,217.23, which Strickland Bros. retained. 16_ Strickland Bros. paid the following subcontractors from the first construction draw: Peifer Const. $5,966.09 Peifer Const. $15,170.79 Trout Foundation $336.96 Clouse $1,291.05 Myers $7,326.07 Myers $906.17 Myers $202.99 Myers $82.65 17. Craig Seig is not seeking recovery from Strickland Bros. for the $16,284.00 cost stated in Paragraph 45 of his Counterclaim, for having another contractor purchase and set the second set of trusses. Exhibit "B" Register: Craig custom From 01/01/2006 through 04/17/2006 Sorted by: Date, Type, Number/Ref Date Ref. Payee Strickland Brothers Construction, LLC Account Memo 01/06/2006 2274 Clouse Crane Servic... Orrstown Bank [split] 01/06/2006 2275 Peiter Construction, ... Orrstown Bank 01!06/2006 2276 Trout Foundation Sp... Orrstown Bank 01/17/2006 2290 John N. Myers & Son Orrstown Bank [split] 02105/2006 2310 John H. Myers & Son Orrstawm Bank [split] 02/05/2006 2317 Clouse Crane Servic.__ Orrstown Bank [split] 02/08/2006 2323 Wickes Lumber Orrstown Bank [split] 03/04/2006 2352 York PB Truss, Inc Orrstown Bank In 14 7426 say 4/ 17/2006 Decrease C Increase Balance 1,291.05 1,291.05 21,136.88 22,427.93 336.96 22,764.89 8.517.88 31.282.77 2,291.00 33,573.77 866.55 34,440.32 543.28 34,983.60 9,758.16 44,741.76 " yV7zll. 7G * 27 -1 ?P5 °`' so.N 1.<r- ,0,29"1 Ar 37, S00. '' -?Ar 3v5aG.7G Page 1 Exhibit "C" 02117V2006 15:19 17177326577 02/02/2008 16:18 PAZ 717 730 ,68 FACSIMILE MECHANICAL DEPT50:t READER & A.DLER To: Crag Seig, Fax: (?17)732-9208 Re: Respontselsettlement proposal from SAC Pages: 45 jncluft this cover sheet. Date: PAGE 04 ?001 Attached please lid a letter ftm SBC's astorney. He has included doma=M Sion showing the allocation of the original $37,500 draw, showing a credit due to you.on that draw of $6,217.23. Also included are tmpaid invoicc,% including ono for the ttussea. SBC attacked an invoice fbr their &wing costs, including time far setting the trusses. SWs invoice does not break the total tune down w show how much time was iavolved in the ttuse wo& PIm- se review the documcntadion and go over it with Commerce Bank if necessstyf Let me know bow you and/or Commerce Bank want to respond. I placed a call to SRC's ana mey and requested to know whether SBC wanted the ttusscs_ I a tao called your insw2 mcc comp=y to make sere they didn't have a problem with you disposing of the trusses or SBC taking View. I have not received a call back ftom either SBC's lawyer or the insutaace company 3k The $400 charged so far for Iagal fees included the initial review of decurnews and drafting of the termination latter to SBC. If you would like us to follow up on this seta email proposal from SBC, we uri31 geed to bill you at the hourly rates set forth in ow retainer letter. From ray brief review of the attached letter and documents, If you subtract out ft amount path for the trusses and the likely amouw of time to set the trusses, the amount requester) is probably pretty close to what you thought SBC was owed. Please advise haw you would like to proceed. Please C4 Jvlm Piet zak at (717) 763-1383 if there is sooty problem in izxasadaftsr. The tntoeagatios cant cee to tuts triellaeslanAe s? tr?asrpdttM Ay as ?tosuey, use pr4rHa?ed clad to>,t?Aaiisyiobeaidea cab for tes one oltbe iMMdaaf ereaRtty naneedt skore. Ytehe t+eauaer oitbls maylat?ela awtthe irtenAiOdaaaripiefftyen ame peacDy aocified ttwlt cry Aston, dt>n?iatsion er eepyrraa of this coaaaana+dasiob If saaid?y Dtot??ikd. trllafo e?ouopaicetlon has ban r Kved in tmr, ptaare iW=fttatyatoti r ys by tdspMn4 nlitet ff tae r, and ae talc ens oalstatst ?s5ugc m us At the Owe WS" via the U.S. Pond Sallee (we WM anlmbase Dosanpa),' Thank yon. From tbG desk of.., Jobe H. Pietrzak Esquire Reager & Adler, PC 2331 Market Street C" EM, FA 17011 717-763-1383 Fax: 717-730-7366 RECEIVED TINE FEB. 17. 3,21PM Exhibit "D" 17. A bank account was established in the name of Strickland Brothers Construction, LLC for the purpose of receiving construction draws from Commerce Bank- 18. Payment for materials and labor for the construction of the house was to be made by Strickland Brothers Construction, LLC to the respective subcontractors, including Seig and his subcontractors. 19- Strickland Brothers Construction, LLC received the initial draw in the amount of $37,500. (Stipulation # 14.) 20. From the initial draw, Strickland Brothers Construction, LLC paid subcontractors for materials and labor provided for the construction of the home in the amount of $31,282-77 leaving a $6,217-23 balance on the first draw to Defendant. (Stipulation # 16.) 21- Strickland Brothers have not retained any additional monies nor have they been paid any additional monies by Seig, despite request. 22. Strickland Brothers have actually paid $48,390.04 out of pocket for materials and labor actually used or provided in construction of Defendant's home, leaving a deficit of $10,890.04, which amount does not include Plaintiffs labor for framing in the amount of $22,725.00_ (See Exhibits P-3 and P-4.) 23. Strickland Brothers were terminated by Defendant by written letter of January 26, 2006, which letter acknowledged the contract between Plaintiff and Defendant executed on September 26, 2005. (See Exhibit D-4-) 24. At the time of termination, Strickland Brothers had not been paid for the work performed in framing the decking and walls of the house, or the cost of labor and materials for setting of the roof trusses. 25. Plaintiff testified that Plaintiff was required to attempt to reconstruct and remember the man hours utilized in framing of the subject property and that the amount requested was not exact, but was Plaintiff's best estimate and based upon Plaintiff s standard hourly rate. 26. Plaintiff acknowledged that the dates on the reconstructed labor time estimate were best estimates, but that the amount of time was generally consistent with the amount of time it would take to frame a house of that size and used as a reference a similar home of structure and design which had been done several months earlier and shown to Defendant- 27. Exhibit P-15 confirms that seven days after terminating the Agreement, Seig and his counsel believed the estimated hours for labor to be "probably pretty close-" 62_ Plaintiff testified that the reason for the shift of responsibility was that owner was going to use subcontractors with whom Plaintiff was not familiar and would not insure. 63. There was no evidence presented which contradicted the written statement that Defendant was required to obtain all insurances. 64. Payment for the original truss materials which collapsed on January 22, 2006 was made by Plaintiff Strickland Brothers Construction, LLC for which they have not been reimbursed. B. Conclusions of Law Pennsylvania Appellate Courts have clearly addressed the issue of whether a contract can prevent an owner can prevent from pursuing a claim against a contractor or subcontractor for damage allegedly caused by such subcontractor if the damage is covered by property insurance which the owner was required to obtain. Jalapenos, LLC v. GRC General Contractor, Inc.; 939 A.2d 925 (Pa. Super. 2007). Typically, the courts in interpreting such provisions looked at the intent of the parties in allocating risk of the first party property loss. Specifically, courts are looking for indications that the parties have shifted the risk of first party property loss from one to the other or from one another to an insurance company. Id. The courts have stated that "because it is economically insufficient for both parties to insure against the same risk, the parties' inclusion of an insurance procurement clause indicates the parties intended to avoid both parties having to face potential liability for the same risk." Id. The Superior Court in the Jalapenos matter follow closely the reasoning of the Missouri Court of Appeals case of Nodaway Valley Bank v. E.L. Crawford Construction, Inc., 126 S.W. 3d 820 (Mo. App. 2004). In reviewing that case, the Jalapenos Court noted that if the parties had a intent contrary than to relieve each other from liability and look only to one insured to bear the risk, then each party would be responsible for obtaining their own insurance policies and it would be unnecessary for the contract to indicate a duty to obtain insurance covering both parties' interests on one of the parties- The court further noted that several cases have reached the same conclusion that parties may contract away the risk of first party property loss relying upon the presence of an insurance procurement clause alone, without the need for additional language, such as a subrogation of waiver clause- While there is a clear distinction between the complex AIA form contract as set forth in the Jalapenos case and the simple statement that Defendant Seig is to obtain all insurances, the reasoning of the Jalapenos Court and the unambiguous indication that there was a clear intention to shift the risk of loss from one party to the other i.s present in the instant matter. Clearly, because both parties agreed that Craig Seig as owner would be performing work on the property, the intention of the parties was to shift the normal burden from Strickland Brothers to Seig. That shift and clause requiring Seig to obtain all insurances, having knowledge of the building industry and insurances necessary, was executed by Seig on the date of closing showing his 15 agreement therefore. As a result, it is Seig's insurance that must bear the loss, even the specific loss contemplated. Seig has acknowledged that he was to carry insurance to cover other losses, such as vandalism or loss by fire, during the course of construction of the project. A loss by wind gust is no different. As such, it is Craig Seig and his insurance company who bear the loss alleged. In the event makes a determination that there was negligence as alleged by Seig and Westfield, their right to recovery is barred because the allocation of risk of loss is present within the written agreement of the parties. As a result, both Craig Seig and Westfield's claim of damages for lost trusses must be denied. In the alternative, in the event the Court does not follow Plaintiff's legal argument with regard to subrogation as set forth above, it should be noted that Plaintiff has already paid for the original set of trusses which were placed on the Seig residence and have not been reimbursed therefore. While Craig Seig was provided money to purchase new trusses from his insurance company, he never paid Plaintiff for the original set. As a result, even if Plaintiff is found liable, the insurance company may only look to their insured for recovery. Plaintiff has already paid for a set of trusses. The undersigned believes that there is no theory of law which would entitle Westfield Insurance Company to collect additional monies from Strickland Brothers Construction for a second set of trusses unless they have been paid by Seig. Otherwise, the result would be to double charge Plaintiff for trusses while Defendant Seig has never paid for any trusses used to build his home. While a cause of action may arise where Plaintiff is responsible for the damages caused for replacement of the original set of trusses, that replacement responsibility is contingent upon Plaintiff having been paid for that original set- Craig Seig has a home which has been constructed with trusses, but has not, to date, paid a cent out of pocket to either Strickland Brothers Construction or Westfield Insurance Company for those trusses. Clearly, the Court's remedy in this matter must address the fact that Craig Seig is not entitled to "free" trusses and that his payment responsibility for materials used in the construction of his house must be addressed either to Strickland Brothers or Westfield Insurance- Respectfully submitted, f> ?7 ? Date Mark W. Allshouse?Esquire /'Attorney ID ## 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Strickland Brothers Construction, LLC 16 STRICKLAND BROTHERS IN THE COURT OF COMMON PLEAS CONSTRUCTION, LLC, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 06-2532 Civil Term CRAIG SEIG, Defendant : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, addressed as follows: The Honorable M.L. Ebert, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 John H. Pietrzak, Esquire REAGER & ADLER 2331 Market Street Camp Hill, PA 17011-4642 Paul M. Schofield, Jr., Esquire 905 West Sproul Road Suite 105 Springfield, PA 19064 Date: 4115110 Respectfully submitted, ark . Allshouse, E ui Atty. I.D. # 78014 4833 Spring Road Sherman Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff 1D?0 fl pry( ?d 4 !? ?3 Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff "'cn?rlaa,.1a 199L STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 06-2532 Civil Term CIVIL ACTION- LAW WESTFIELD INSURANCE COMPANY IN THE COURT OF COMMON PLEAS AS SUBROGEE OF CRAIG SEIG, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant NO. 08-0423 Civil Term J' CIVIL ACTION - LAW NOTICE OF APPEAL Notice is hereby given that Strickland Brothers Construction, LLC, Plaintiff above-named to Civil Action 2006-2532 and Defendant above-named to Civil Action 2008-0423, hereby appeals to the Superior Court of Pennsylvania from the original Order entered on April 1, 2010 in the above matter, which was consolidated for trial. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. Respectfully submitted, Date: /b ark W. Allshouse, squire Attorney I.D. # 78044 4833 Spring Road Sherman Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff ID e'rp ? sW?y up 416 04 -aSS,t C Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2532 Civil Term CIVIL ACTION- LAW WESTFIELD INSURANCE COMPANY IN THE COURT OF COMMON PLEAS AS SUBROGEE OF CRAIG SEIG, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant NO. 08-0423 Civil Term : CIVIL ACTION - LAW REQUEST FOR TRANSCRIPT A Notice of Appeal having been filed in this matter, the Official Court Reporter is hereby Ordered to produce, certify and file the transcript in this matter conforming with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. Respectfully submitted, Date: ark W. Allsho e, Esquire Attorney I.D. # 014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2006-02532 STRICKLAND BROTHERS CONST (vs) SEIG CRAIG Reference No..: Filed........: 5/05/2006 Case Type ..... : COMPLAINT Jud 00 ment Time.........: E ti D 9:54 g ......: . xecu on ate 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments --------- Higher Crt 1.: Higher Crt 2.: General Index Attorney Info STRICKLAND BROTHERS PLAINTIFF ALLSHOUSE MARK W CONSTRUCTION LLC 623 CREEK ROAD CARLISLE PA 17013 SEIG CRAIG DEFENDANT CLO JOHN H PIETRZAK ESQUIRE REEAGER & ADLER 2331 MARKET ST CAMP HILL PA 17011 4642 116 WINCHESTER GARDEN A APARTMENTS CARLISLE PA 17013 * Date Entries - FIRST ENTRY - - - - - - - - - - - - - - 5/05/2006 COMPLAINT - CIVIL ACTION ------------------------------------------------------------------- 5/10/2006 CERTIFICATE OF SERVICE - COMPLAINT - BY MARK W ALLSHOUSE ATTY ------------------------------------------------------------------- 6/01/2006 DEFENDANT'S ANSWER WITH NEW MATTER AND COUNTERCLAIM - BY JOHN H PIETRZAK ATTY ------------------------------------------------------------- 6/09/2006 PLFF'S-REPLY-TO DEFT'S NEW MATTER AND ANSWER TO COUNTERCLAIM- - -BY- - MARK W ALLSHOUSE ATTY FOR PLFF ------------------------------------------------------------------- 6/19/2006 PRAECIPE TO ATTACH THE OMITTED EXHIBIT "B" TO DEFT'S ANSWER WITH NEW MATTER AND COUNTERCLAIM TO PLFF'S COMPLAINT - BY JOHN H PIETRZAK ATTY ------------------------------------------------------------------- 1/17/2008 PRAECIPE FOR LISTING CASE FOR TRIAL - BY MARK W ALLHOUSE ATTY FOR PLFF ------------------------------------------------------------------- 1/23/2008 ORDER OF COURT - 1/23/08 IN RE: NON JURY TRIAL IN THE ABOVE REFERENCES CASE HAS BEEN ASSIGNED TO THIS COURT - PRIOR TO SETTING AN ACTUAL TRIAL DATE - HEREBY ORDERED AND DIRECTED THAT THE PARTIES IN THIS CASE FILE A PRETRIAL MEMORANDUM WITH THE COURT ON OR BEFORE 2/13/08 IN THE FOLLOWING FORMAT 1- A CONCISE STATEMENT O FACTUAL ISSUES TO BE DECIDED AT TRIAL 2- A LIST OF WITNESSES THE PARTY INTENDS TO CALL AT TRIAL ALONG WITH A CONCISE STATEMENT OF THEIR ANTICIPATED TESITMONY 3- A LIST OF ALL EXHIBITS EACH PARTY ANTICIPATES PRESENTING AT TRIAL 4- A STATEMENT OF ANY LEGAL ISSUES EACH PARTY ANTICIPATES BEINGJ RAISED AT TRIAL ALONG WITH COPIES OF ANY CASES WHICH MAY BE RELEVANT TO RESOLUTION OF THE STATED ISSUE 5- AN ESTIMATE OF THE ANTICIPATED TIME NEEDED FOR THE PARTY TO PRESENT ITS CASE - UPON RECEIPT AND REVIEW OF THESE MEMORANDUMS THE COURT WILL SET A TRIAL DATE FOR THIS CASE - BY M L EBERT JR J - COPIES MAILED 1/23/08 ------------------------------------------------------------------- 2/13/2008 ORDER OF COURT - 2/12/08 IN RE: THE COURT HAVING BEEN ADVISED THAT ANOTHER SUIT HAS BEEN FILED BY WESTFIELD INSURANCE COMPANY WHICH MAY NEED TO BE CONSOLIDATED WITH THE ABOVE CAPTIONED MATTER - IT IS HERBEY ORDERED AND DIRECTED THAT THIS COURT'S PREVIOUS ORDER OF 1/23/08 IS RECINDED - IT IS FURTHER ORDERED AND DIRECTED THAT A STATUS CONFERENCE ON THIS CASE TO INCLUDE COUSNEL REPRESENTING WESTFIELD INSURANCE COMPANY WILL BE HELD ON 4/29/08 AT 3:30 PM IN CR5 OF THE CUMBERLAND COUNTY COURTHOUSE - BY M L EBERT JR J - COPIES MAILED 2/13/08 ------------------------------------------------------------------- 4/30/2008 ORDER OF COURT - 4/29/08 - AFTER STATUS CONFERENCE WITH COUNSEL PYS511 Cumberland County Prothonotary's Office Page ,, Civil Case Print 2006-02532 STRICKLAND BROTHERS CONST (vs) SEIG CRAIG Reference No... Filed......... 5/05/2006 Case Type ..... : COMPLAINT Time..... 9.54 Judgment. .....: .00 Execution Date 0/00/0000 Judge Ass igned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 --------- --- Case Comments ------------- Higher Crt 1.: Hi her Crt 2.: AND IT APPEARING THAT ALL PARTIES AGREE TO CONSOLIDATION OF THESE CASES FOR TRIAL - IT IS HEREBY ORDERED AND DIRECTED THAT A- ALL DISCOVERY IN THESE CASES WILL BE COMPLETED ON OR BEFORE 7/30/08 B- PRE TRIAL MOTIONS IN THIS MATTER SHALL BE FILED AND THE MOTIONS SET DOWN FOR ARGUMENT ON OR BEFORE 8/14/08 ARGUMENT OF ANY PRE TRIAL MOTIONS WIL BE HELD AT ARGUMENT COURT ON 9/3/08 C- ALL PARTIES WILL FILE A PRE TRIAL MEMORANDUM WITH THE COURT ON OR BEFORE 9/25/08 IN THE FOLLOWING FORMAT 1- A CONCISE STATEMENT OF FACTUAL ISS E U S TO BE DECIDED AT TRIAL 2- A LIST OF WITNESSES THE PARTY INTENDS TO CALL AT TRIAL ALONG WITH A CONCISE STATEMENT OF THEIR ANTICIPATED TESTIMONY 3- A LIST OF ALL EXHIBITS EACH PARTY ANTICIPATES PRESENTING AT TRIAL 4- A STATEMENT OF ANY LEGAL ISSUES EACH PARTY ANTICIPATES BEING RAISED AT TRIAL ALONG WITH COPIES OF ANY CASES WHICH MAY BE RELEVANT TO RESOLUTION OF THE STATED ISSUE 5- AN ESTIMATE OF THE ANTICIPATED TIME NEEDED FOR HE P TRIAL TER T Y 0 S T T O H WILL AT 9:00 AM ON 10/3/08 IN CR5 CUMBER LAND BE HELD COUNTY COURTHOUSE - BY M L EBERT JR J - COPIES MAILED 4/30/08 10/06/2008 ------------------------------------------------------------------- ORDER OF COURT - 10%6/08 - AFTER THE FIRST DAY OF TESTIMONY IN THE NON JURY TRIA L IN THIS MATER IS APPEARS THAT POSSIBLE 2 MORE DAYS WILL BE NEEDED - IT IS HEREBY ORDERED AND DIRECTED THAT THE CONTINUATION OF THE NON JURY TRIAL WILL BE HELD ON 2/18/09 AT 9:00 AM AND 2/20/09 AT 9 00 AM : IN CR5 CUMBERLAND COUNTY COURTHOUSE - BY M L E ER B JR J - COPIES MAILED 10/6/08 4/01/2010 ----------------------------------------------------------------- OPINION AND ORDER OF COURT DATED 04-01-10 IN RE NON JURY TRIAL - VERDICT OF THE COURT AFTER THE NONJURY TRIAL - BY THE COURT ML EBERT JR J - COPIES MAILED 04-01-2010 4/15/2010 ------------------------------------------------------------------- MOTION FOR POST TRIAL RELIEF REQUSTING MODIFICATION OF DECISION - BY MARK W ALLHOUSE ATTY FOR PLFF - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - 2 ******************************************************************************** * Escrow Information * Fees & Debits Bed*Bal***Py*mts/Adl End Bal ******************************** **** ****** ******************************* COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 SUBPOENA 12.00 12.00 .00 PRAECIPE TRIAL 25.00 25.00 .00 SUBPOENA 24.00 24.00 .00 SUBPOENA 18.00 -------------- 18.00 -- .00 134.50 -------- --- 134.50 --------- .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD M Testimony whemd. i here unto set my hind end tlw,? of "M Court at ?P? , Thta r(?.d?gf at ? C. PYSSll Cumberland County Prothonotary's Office Page 1 Civil Case Print 2008-00423 WESTFIELD INSURANCE CO (vs) STRICKLAND BROS CONSTRUCTION Reference No... Filed......... 1/18/2008 Case Type ..... : COMPLAINT Time...... . Jud 00 E ti D ment 12:27 g ......: . xecu on ate 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ---- --------- Higher Crt 1.: Higher Crt 2.: ********************************************************************* *********** General Index Attorney Info WESTFIELD INSURANCE COMPANY PLAINTIFF D'EMILIO PAUL F SUB P O BOX 5001 WESTFIELD CENTER OH 44251 5001 SEIG CRAIG PLAINTIFF D'EMILIO PAUL F STRICKLAND BROTHERS DEFENDANT CONSTRUCTION LLC 621 CREEK ROAD CARLISLE PA 17013 ******************************************************************************** * Date Entries FIRST ENTRY - - - - - - - - - - 1/18/2008 COMPLAINT FILED BY PAUL F D'EMILIO ESQ FOR PLFF ------------------------------------------------------------------- 1/24/2008 SHERIFF'S FILE RETURNED FILED. LitiganLppe: STTRICKILAND& yyppNOTICE Ret BROTHERS CONSTRUCTIONR ggLLClar Address..: 623 CREEK ROAD CtY/St/Z . CARLISLE, PA 17013 Hnd To: BREE HARVEY, SECRETARY, ADULT IN CHARGE Shf/D ty.: MARK CONKLIN Date Time: 01/23/2008 0900:00 Costs....: $32.80 Pd By: PAUL E'EMILIO 01/24/2008 ------------------------------------------------------------------- 2/13/2008 DEFENDANT'S ANSWER WITH NEW MATTER - BY MARK W ALLSHOUSE ATTY FOR DEFT ------------------------------------------------------------------- 2/13/2008 COMPLAINT JOINING ADDITIONAL DEFT CRAIG SEIG PURSUANT OT PENNSYLVANIA RULE OF CIVIL PROCEDURE 2229 - BY MARK W ALLHOUSE ATTY FOR DEFT ------------------------------------------------------------------- 2/13/2008 ORDER OF COURT - 2/12/08 IN RE: THE COURT HAVING BEEN ADVISED THAT ANOTHER SUIT HAS BEEN FILED BY WESTFIELD INSURANCE COMPANY WHICH MAY NEED TO BE CONSOLIDATED WITH THE ABOVE CAPTIONED MATTER - IT IS HEREBY ORDERED AND DIRECTED THAT THIS COURT'S PREVIOUS ORDER OF 1/23/08 REQUIRING THAT THE PARTIES FILE PRETRIAL MEMORANDUM WITH THE COURT ON OR BEFORE 2/13/08 IS RESCINDED - IT IS FURTHER ORDERD AND DIRECTED THAT A STATUS CONFERENCE ON THIS CASE TO INCLUDE COUNSEL REPRESENTING WESTFIELD INSURANCE COMPANY WILL BE HELD ON 4/29/08 AT 3:30 PM IN CR5 CUMBERLAND COUNTY COURTHOUSE - BY M L EBERT JR J - COPIES MAILED 2/13/08 ------------------------------------------------------------------- 3/06/2008 ACCEPTANCE OF SERVICE - COMPLAINT JOINING ADDITIONAL DEFENDANT CRAIG SEIG - BY JOHN H PIETZRAK ESQ FOR DEFT ------------------------------------------------------------------- 3/11/2008 ANSWER AND NEW MATTER OF CRAIG SEIG ADDITIONAL DEFT TO THE COMPLAINT JOINING ADDITIONAL DEFT FILED BY STRICKLAND BROTHERS CONSTRUCTION LLC - JOHN H PIETRZAK ATTY FOR ADDITIONAL DEFT CRAIG SEIG ------------------------------------------------------------------- 3/20/2008 DEFENDANT'S REPLY TO ADDITIONAL DEFT'S NEW MATTER - BY MARK W ALLHHOUSE ATTY FOR DEFT STRICKLAND BROTHERS CONSTRUCTION LLC ------------------------------------------------------------------ 4/30/2008 ORDER OF COURT --4/29/08 - AFTER STATUS CONFERENCE WITH COUNSEL AND IT APPEARING THAT ALL PARTIES AGREE TO CONSOLIDATION OF THESE CASES FOR TRIAL - IT IS HEREBY ORDERED AND DIRECTED THAT A- ALL DISCOVERY IN THESE CASES WILL BE COMPLETED ON OR BEFORE 7/30/08 B- PRETRIAL MOTIONS IN THIS MATTER SHALL BE FILED AND THE MOTIONS PYS511 Cumberland County Prothonotary's Office Page Civil Case Print 2008-00423 WESTFIELD INSURANCE CO (vs) STRICKLAND BROS CONSTRUCTION Reference No..: Filed........: 1/18/2008 Case Tye.....: COMPLAINT Time.........: 12:27 Judgmenpt..... : .00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt l.: Higher Crt 2.: SET DOWN FOR ARGUMENT ON OR BEFORE 8/14/08 ARGUMENT OF ANY PRETRIAL MOTIONS WILL BE HELD AT ARGUMENT COURT ON 9/3/08 C- ALL PARTIES WILL FILE A PRETRIAL MEMORANDUM WITH THE COURT ON OR BEFORE 9/25/08 IN THE FOLLOWING FORMAT 1- A CONCISE STATEMENT OF FACTUAL ISSUES TO BE DECIDED AT TRIAL 2- A LIST OF WITNESSES THE PARTY INTENDS TO CALL AT TRIAL ALONG WITH A CONCISE STATEMENT OF THEIR ANTICIPATED TESTIMONY 3- A LIST OF ALL EXHIBITS EACH PARTY ANTICIPATES PRESENTING AT TRIAL 4- A STATEMENT OF ANY LEGAL ISSUES EACH PARTY ANTICIPATES BEING RAISED AT TRIAL ALONG WITH COPIES OF ANY CASES WHICH MAY BE RELEVANT TO RESOLUTION OF THE STATED ISSUE 5- AN ESTIMATE OF THE ANTICIPATED TIME NEEDED FOR THE PARTY TO PRESENT ITS CASE - D- TRIAL OF THIS MATTER WILL BE HELD AT 9:00 AM ON 10/3/08 IN CR5 CUMBERLAND COUNTY COURTHOUSE - BY M L EBERT JR J - COPIES MAILED 4/30/08 ------------------------------------------------------------------- 10/06/2008 ORDER OF COURT - 10/6/08 - AFTER THE FIRST DAY OF TESTIMONY IN THE NON JURY TRIAL IN THIS MATTER IT APPEARS THAT POSSIBLY 2 MORE DAYS WILL BE NEEDED - IT IS HEREBY ORDERED AND DIRECTED THAT THE CONTINUATION AM IN TRIAL WILL BE HELD COUNTY 2/18UR/09 AT 9:00 - BY M L EBERT JR J - COPIES MAILED 10/6/08 ------------------------------------------------------------------- 4/01/2010 OPINION AND ORDER OF COURT DATED 04-01-10 AFTER A NONJURY TRIAL THE VERDICT OF THE COURT - ML EBERT JR J - COPIES MAILED 04-01-10 ------------------------------------------------------------------- 4/15/2010 MOTION FOR POST TRIAL RELIEF REQUESTING MODIFICAITON OF DECISION - BY MARK W ALLSHOUSE ATTY FOR PLFF - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - 2 ******************************************************************************** * Escrow Information * Fees & Debits Beq*Bal***Pmts/Adl End Bal ******************************** **** ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 --------------- 10.00 - .00 78.50 -------- --- 78.50 --------- .00 * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD M Testimony whored,1 ton unto set nW hwW ow do 4,o of said Court??l? at `caffleft. Pa. , Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 5824006 Attorney for Plaintiff STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO, 06-2532 Civil Term CIVIL ACTION- LAW WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-0423 Civil Term : CIVIL ACTION -LAW CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the date indicated below, I caused the foregoing Notice of Appeal, by U.S. Mail to the following persons, addressed as follows: Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Official Court Reporter Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 The Honorable M.L. Ebert, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Paul M. Schofield, Jr., Esquire 905 West Sproul Road Suite 105 Springfield, PA 19064 John H. Pietrzak, Esquire REAGER & ADLER 2331 Market Street J Camp Hill, PA 17011-4642 ?I/?Q Date: A ;ark W. Allshous Esquire AI.D. # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff STRICKLAND BROTHERS IN THE COURT OF COMMON PLEAS CONSTRUCTION, LLC, CUMBERLAND COUNTY, PENNSYIRAIIM Plaintiff 7) x NO. 06-2532 CIVIL TERM fl" `r' C_. n CRAIG SEIG, CIVIL ACTION - LAW Defendant a, -< WESTFIELD INSURANCE IN THE COURT OF COMMON PLEAS COMPANY AS SUBROGEE OF CUMBERLAND COUNTY, PENNSYLVANIA CRAIG SEIG, Plaintiff / NO. 08-0423 CIVIL TERM ? V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 21st day of April, 2010, the Court being in receipt of a notice of appeal in the above captioned matter, IT IS HEREBY ORDERED AND DIRECTED that: 1. Plaintiffs file a concise statement of the errors complained of on before May 12, 2010; 2. The Statement shall be filed of record; 3. The Statement shall be served on this Court pursuant to Pa.R.A.: 1925(b) (1); IT IS FURTHER ORDERED AND DIRECTED that any issue not properly included in the Statement shall be deemed waived. By the Court, ?0' ??A M. L. Ebert, Jr., ?Mark W. Allshouse, Esq. Attorney for Strickland Brothers Construction, LLC ,,-Va'ul M. Schofield, Jr., Esq. Paul F. D'Emilio, Esq. Attorneys for Westfield Insurance Company as Subrogee of Craig Seig hn Pietrzak, Esquire Attorney for Craig Seig bas C.OPt eyt.,7l LcC s? STRICKLAND BROTHERS CONSTRUCTION, LLC, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CRAIG SEIG, DEFENDANT NO. 06-2532 CIVIL WESTFILED INSURANCE COMPANY IN THE COURT OF COMMON PLEAS OF AS SUBROGEE OF CRAIG SEIG CUMBERLAND COUNTY, PENNSYLVANIA P.O. BOX 5001 WESTFIELD CENTER, OH 44251-5001 PLAINTIFF V. t7 r- r., Ca STRICKLAND BROTHERS CONSTRUCTION, LLC., 621 CREEK ROAD c`;; ` tra C CARLISLE, PA 17013 - ' DEFENDANT NO. 08-0423 CIVIL `? - ORDER OF COURT AND NOW, this 30th day of April, 2010, upon consideration of Strickland Brothers Construction, LLC's Motion for Post Trial Relief requesting Modification of Decision, IT IS HEREBY ORDERED AND DIRECTED that the Motion is DENIED. By the Court, ,- Mark W. Allshouse, Esquire Attorney for Plaintiff John H. Pietrzak, Esquire Attorney for Defendant Paul M. Schofield, Jr., Esquire Attorney for Westfield Insurance Company Court Administrator Sf/?O bas / 'SC 3 0 /c? N\'-?? ?3A M. L. Ebert, Jr., J LED-i ski Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff 2010 MAY 10 AM 10: 30 P1r{N"JIG 61AN 4. STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2532 Civil Term CIVIL ACTION- LAW WESTFIELD INSURANCE COMPANY : IN THE COURT OF COMMON PLEAS AS SUBROGEE OF CRAIG SEIG, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 08-0423 Civil Term ? STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant CIVIL ACTION -LAW CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL AND NOW, comes the appellant, Strickland Brothers Construction, LLC by and through its attorney, Mark W. Allshouse, Esquire, and in support of its Notice of Appeal and as directed by the Court's Order of April 21, 2010, files the following Concise Statement of Matters Complained of on Appeal and avers as follows: 1. The Court erred in failing to award Strickland Brothers Construction, LLC any compensation for materials purchased by Strickland Brothers Construction, LLC and utilized in the construction of the home of Defendant, Craig Seig as set forth in Count II of Plaintiff s Complaint for unjust enrichment against Craig Seig. The issue of compensation for materials is not addressed in the Court's Order/Opinion. 1 2. The Court awarded damages to Plaintiff, Westfield Insurance Company as subrogee to Craig Seig for trusses damaged pursuant to Westfield's claim for breach of contract and negligence. 3. The result of the Court's Order/Opinion as set forth in paragraphs 1 and 2 above was contrary to its own findings and reasoning but reaches a result which represents a clear error of law for the following reasons: a. Un-contradicted evidence was presented that Strickland Brothers Construction, LLC spent Ten Thousand Eight Hundred Ninety and 04/100 Dollars ($10,890.04) of its own money, not from the initial draw, for the purchase of the original set of trusses which were utilized in the construction of Craig Seig's home, for which it was never paid or reimbursed by Craig Seig and for which it was never awarded compensation pursuant to its Unjust Enrichment count (Count II) by the Court. b. By failing to award compensation for Strickland Brothers Construction, LLC's materials under its Unjust Enrichment Count, and as a result of being ordered to pay Westfield Insurance for a second set of trusses, Strickland Brothers Construction, LLC has paid for two sets of trusses to be placed on the Seig residence when it was only found liable for damage to one set of trusses. C. Westfield, as a subrogee of Craig Seig, is not entitled to any more damages than would Craig Seig be entitled, namely one set of trusses. 4. The result of the Court's findings and award is to require Strickland Brothers Construction, LLC to pay double the amount of damages incurred as compensatory damages when only a single breach of contract/act of negligence was awarded to Westfield and Seig's award we for breach of contract was limited to $500 represented Seig's deductible. 2 5. Furthermore, the Court's findings and award results in receipt by Craig Seig of a free set of trusses which are installed on his home for which he has never paid, e.g. in Craig Seig being unjustly enriched. The unjust enrichment is not connected to the damaged trusses; it is determined by the fact Seig received free trusses as a result of the award in favor of Westfield. Strickland Brothers Construction, LLC's obligation to Seig was to replace the damaged trusses and Westfield as Seig's subrogee received that benefit. Strickland Brothers Construction, LLC fulfilled its obligation to pay for good trusses to be placed on the home, but in turn never received compensation for the material costs it would have received had Seig not terminated the construction contract, resulting in Seig receiving free trusses and Strickland Brothers Construction, LLC not being paid for materials used in the construction of Seig's home. Respectfully submitted, f Date: r k W. Allshouse, ?qui: mey I.D. # 7801 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Sherman Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 06-2532 Civil Term CRAIG SEIG, Defendant : CIVIL ACTION- LAW WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-0423 Civil Term CIVIL ACTION -LAW CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following: by depositing a copy of the same in the United States Mail, first-class, postage prepaid, addressed as follows: Paul M. Schofield, Jr., Esquire 905 West Sproul Road Suite 105 Springfield, PA 1906 Theodore A. Adler REAGER & ADLER 2331 Market Street Camp Hill, PA 17011-46424 By service in person to the office of the below named on the date of filing: The Honorable M.L. Ebert, Jr Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Date: ;5jlol/D f T rk W. Allsho, Esquire tty. I.D. # 780141 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff i W STRICKLAND BROTHERS IN THE COURT OF COMMON PLEAS CONSTRUCTION, LLC, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 06-2532 CIVIL TERM V. CRAIG SEIG, CIVIL ACTION - LAW Defendant WESTFIELD INSURANCE IN THE COURT OF COMMON PLEAS COMPANY AS SUBROGEE OF CUMBERLAND COUNTY, PENNSYLVANIA CRAIG SEIG, Plaintiff n NO. 08-0423 CIVIL TERM ? c ; V. : STRICKLAND BROTHERS CIVIL ACTION - LAW" CONSTRUCTION, LLC, `:. Defendant ?. IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, Jr., J., May 27, 2010 - Strickland Brothers Construction, LLC, (hereinafter SBC), has filed this timely appeal from our Order of Court dated April 1, 2010. SBC filed a Concise Statement of Matters Complained of on Appeal on May 10, 2010. Basically, SBC claims that the Court committed error in failing to award them compensation for the roof trusses they paid for which were damaged and replaced by Westfield Insurance Company (hereinafter Westfield). In essence, they maintain that they are owed $10,890.04 and that to not award them this sum constitutes unjust enrichment of the homeowner, Craig Seig (hereinafter Seig). This Court previously filed a 23 page opinion on April 2, 2010, which addresses the legal issues presented in this case at length. This opinion is filed pursuant to Pa.R.A.P. 1925(a) to i• supplement the prior April 1, 2010 opinion and more specifically addresses the specific issue raised in SBC's Concise Statement of Matters Complained of on Appeal. Supplemental Facts Defendant maintains that there is "uncontradicted evidence" that Strickland Brothers Construction, LLC, paid $10,890.04 to purchase a set of roof trusses for use in the construction of Craig Seig's home. This sum is not included in the Stipulation of Facts submitted by the parties (Court Exhibit No. 1), nor is it the amount testified to by Morris Jeffrey Strickland (hereinafter J. Strickland) at trial. J. Strickland testified that the amount paid to York P-B Truss, Inc., the company that provided the trusses, was $9,758.16. (N.T. Day 1, p. 31). An examination of the coversheet of Plaintiff's Exhibit No. 3 indicates that York P-B Truss, Inc. was paid $9,758.16, but the actual invoice from York P-B Truss, Inc., included in Plaintiff's Exhibit No. 3 indicates a grand total of $9,578.16. Thus, it appears that the numbers 7 and 5 were transposed on the coversheet. Additionally, by way of explanation, SBC may have included the cost for the crane service and box truss spacers used to set the trusses in their total amount requested. Plaintiff's Exhibit No. 3 does have an invoice from Clouse Services Inc., dated 1/24/06 in the amount of $866.55 for crane services on January 20, 2009, and box truss spacers. This invoice is marked "not paid yet" as is the invoice from York P-B Truss, Inc. However, adding this sum to the actual cost of the trusses still comes to only $10,444.71. In any regard, given the fact that this Court finds that SBC is not entitled to an award for unjust enrichment for the trusses, the discrepancy in the amount requested is irrelevant. Seig contracted with Westfield to provide property damage coverage during the construction of his home. Accordingly, as a result of SBC's negligence in improperly setting and bracing the roof trusses they collapsed. Westfield was obligated to pay Seig for the damage 2 I and became subrogee to any claim Seig had against SBC. Equally compelling is the fact that SBC had its own insurance policy. According to the testimony of J. Strickland, SBC never filed a claim for the damaged trusses with its own insurer. (N.T. Day 1, p. 62, Defense Exhibit 2) While SBC did pay for the first set of trusses and utilize labor to set them, neither Seig nor Westfield received any benefit as a result of these expenditures. Indeed because of SBC's negligent work, the trusses collapsed and were damaged and rendered unusable. They were removed from the home and piled on the building lot until they were taken from the lot by Fulmer Construction Services, Inc. as part of the insurance claim. This Court finds as fact that Seig was not "unjustly" enriched. DISCUSSION This Court has awarded SBC the sum of $12,907.77 for the satisfactory work it preformed in framing Seig's house. SBC is not entitled to a claim of unjust enrichment for the money and labor it expended on the first set of trusses. Westfield paid Seig for the damages caused by SBC under a separate contract of insurance as a result of SBC's negligent installation of Seig's home's roof truss system. Stating the elements of unjust enrichment in terms of this case, SBC must demonstrate that (1) a benefit was conferred upon Seig by SBC, (2) appreciation of the benefit by Seig, and (3) acceptance and retention of the benefit by Seig under such circumstances that would be inequitable for Seig to retain the benefit without payment of value. Stoeckinger v. Presidential Financial Corp., 948 A.2d 828 (Pa. Super. 2008). Whether the unjust enrichment doctrine applies depends on the unique factual circumstances of each case. The most significant element of the doctrine of unjust enrichment is whether the enrichment of the Defendant is unjust. Id. In this case, SBC's purchase of the first set of trusses and its subsequent negligent destruction of those trusses conferred no benefit upon Seig. Obviously, Seig could not appreciate any benefit because none was conferred. What Seig saw as a result of SBC's negligent work was a pile of damaged trusses which were of absolutely no value to him. This Court finds that under the doctrine of unjust enrichment, the equities in this unique case lie with homeowner Seig. Seig was paid by his insurance company, Westfield, for the damages caused by SBC's negligent work. SBC obviously owes Westfield for the damages it paid to Seig as subrogee of the claim. If SBC was entitled to anything it was the pile of damaged trusses that remained on Seig's lot after they were removed from the house. SBC obviously did nothing to claim them. Interestingly, J. Strickland admitted that he was insured by Erie Insurance Company and that he did not submit his own claim on behalf of SBC for the damaged trusses. (N.T. Day 1, p. 62, Defense Exhibit 2). Unjust enrichment is an equitable doctrine under Pennsylvania Law. In re: Reading Broadcasting, Inc., 390 B.R. 532 (E.D. Pa. 2008). In this case, Seig was definitely not unjustly enriched by anything that SBC did with regard to the roof truss construction. If anything, Seig was actually harmed by the emotional trauma of seeing his new home damaged and the delay in completion caused by SBC's negligent and un-workmanlike performance. Accordingly, SBC's claim for unjust enrichment is denied. By the Court, M. L. Ebert, Jr., ; J. Mark W. Allshouse, Esq. Attorney for Strickland Brothers Construction, LLC ,,"T?a'ul M. Schofield, Jr., Esq. Paul F. D'Emilio, Esq. Attorneys for Westfield Insurance Company as Subrogee of Craig Seig /John Pietrzak, Esquire Attorney for Craig.Seig 0-6? t r Or"Ut' L'r'( 4 s'1-12 / !D ?r?'1 Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff FILEC)-a? =iC,E A t1F THE Poi r`;r ? \101A 1 2010 JUN -1 PM 1: " P81?1NSYLVAN STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2532 Civil Term CIVIL ACTION- LAW WESTFIELD INSURANCE COMPANY IN THE COURT OF COMMON PLEAS AS SUBROGEE OF CRAIG SEIG, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant NO. 08-0423 Civil Term CIVIL ACTION -LAW PRAECIPE FOR ENTRY OF FINAL JUDGMENT TO THE PROTHONOTARY: Kindly enter final judgment in the above-referenced matters pursuant to Judge Ebert's Order of April 1, 2010 and the Court's April 30, 2010 denial of Plaintiff's Request for Post-Trial Relief. vv)? Date: (4iPcwo Mark W. Allshous , Esquire Atty. 1. D. # 7801 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff *14.0o PQ Arrrrt C* 1101 ??a?aga3 STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant APPEAL TO THE PENNSYLVANIA SUPERIOR COURT DOCKET NO. 674 MDA 2010 CIVIL ACTION- LAW APPEAL TO THE PENNSYLVANIA SUPERIOR COURT DOCKET NO. 674 MDA 2010 CIVIL ACTION -LAW CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following by depositing a copy of the same in the United States Mail, first-class, postage prepaid, addressed as follows: Paul M. Schofield, Jr., Esquire 905 West Sproul Road Suite 105 Springfield, PA 19064 Thomas O. Williams, Esquire REAGER & ADLER 2331 Market Street Camp Hill, PA 17011-4642 Date. ark W. Allshouse,?quire )ftty. I.D. # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff VS. - bAae S l ?Q:C? RLV11l?? C In the Court of Common Pleas of Cumberland County, Pennsylvania OY Civil. No. To Prothonotary 19 / -14 Atto ney for Plaintiff No. Term, 19 VS. PRAECIPE Filed 19 Atty. ? N STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2532 CIVIL TERM V. CRAIG SEIG, Defendant WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant CIVIL ACTION - LAW IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-0423 CIVIL TERM CIVIL ACTION - LAW IN RE: NON-JURY TRIAL L ?? n Z! I Cam? c-i C-0 ORDER OF COURT AND NOW, this 1St day of April, 2010, after nonjury trial in the above captioned matter, the verdict of the Court is as follows: 1. On Strickland Brothers Construction, LLC's claim of breach of contract by Seig (Plaintiffs Complaint, Count I) the Court finds in favor of Seig and against Strickland Brothers Construction, LLC. 2. On Strickland Brothers Construction, LLC's claim of unjust enrichment (Plaintiffs Complaint, Count II) the Court finds in favor of Strickland Brothers Construction, LLC and against Seig and awards the amount of $12,907.77. t I On Seig's claim of breach of contract by Strickland Brothers Construction, LLC, (Defendant's Counterclaim, Count I) the Court finds in favor of Seig and against Strickland Brothers Construction, LLC, and awards damages in the amount of $500.00. 4. On Seig's claim of the violation 73 Pa.C.S.A. §201-2(4)(xvi) of the Unfair Trade Practices and Consumer Protection Law, (Defendant's Counterclaim Count II), the Court finds in favor of Strickland Brothers Construction, LLC, and against Seig. 5. On Westfield's claims of (1) breach of contract, (Westfield's Complaint, Count I), (2) breach of warranty, (Westfield's Complaint, Count II), and (3) negligence (Westfield's Complaint, Count III), the Court finds in favor of Westfield and against Strickland Brothers Construction, LLC, and awards damages in the amount of $18,569.61. By the Court, 140\ -k, ?4\ M. L. Ebert, Jr., J. ./ Mark W. Allshouse, Esq. Attorney for Strickland Brothers Construction, LLC Paul M. Schofield, Jr., Esq. Paul F. D'Emilio, Esq. Attorneys for Westfield Insurance Company as Subrogee of Craig Seig .John Pietrzak, Esquire Attorney for Craig Seig w ?Ft V4 ywa c 1 o, Ail,/10 2 STRICKLAND BROTHERS CONSTRUCTION, LLC, PLAINTIFF V. CRAIG SEIG, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2532 CIVIL WESTFILED INSURANCE COMPANY IN THE COURT OF COMMON PLEAS OF AS SUBROGEE OF CRAIG SEIG CUMBERLAND COUNTY, PENNSYLVANIA P.O. BOX 5001 WESTFIELD CENTER, OH 44251-5001: PLAINTIFF : V. STRICKLAND BROTHERS rr ?; `' -a -?- rn CONSTRUCTION LLC. ..? , , 621 CREEK ROAD to CD "r CARLISLE, PA 17013 DEFENDANT NO. 08-0423 CIVIL :... ORDER OF COURT w AND NOW, this 30th day of April, 2010, upon consideration of Strickland Brothers Construction, LLC's Motion for Post Trial Relief requesting Modification of Decision, IT IS HEREBY ORDERED AND DIRECTED that the Motion is DENIED. By the Court, ,- Mark W. Allshouse, Esquire Attorney for Plaintiff John H. Pietrzak, Esquire Attorney for Defendant Paul M. Schofield, Jr., Esquire Attorney for Westfield Insurance Company Court Administrator - ?>pk S 41-tcI c bas 3 10 / ?le'1 M. L. Ebert, Jr., J CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG VS. STRICKLAND BROTHERS CONSTRUCTION, LLC. 2008-423 CIVIL 674 MDA 2010 The documents comprising the record have been numbered from No.l to 138, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court ' 06-17-10 . avid D. Buell, Prothon tary Regina Lebo An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania County of Cumberland ss: In TESTIMO~hWHEREOF, I have hereunto this I, David D. Buell ,Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Westfield Insurance Company As Subroaee of Craig S~~.g Plaintiff, and Strickland Brothers Construction, LLG. Defendant , as the same remains of record before the said Court at No. of Term, A. D. 19 set my hand and affixed the seal of said Court day of ~, .7une 1 n A. D., I~~ro Prothonotary I, Kevin A Hess President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that pa~T,~u„oll by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of C~tlar~~ in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record, certificate and attesar;ion are in due form of law and made by the oper of r. President ,ludge Commonwealth of Pennsylvania County of Cumberland ss: I, David D. Buell ,Prothonotary ;of the Court of Common Pleas in and for the said County, do certify that the Honorable Kevin A. Hess by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed the seal of said Court this day of A.D. }~~~0 Prothonotary 0 d 3 ? ~ ~ ~ cn ~ n. ;~ X ~ ~ 'r' ~ o. ~ ~ 3 ~ ~ N -n o- F j `.p ~ ~ ~ a 00 ~ L.~ O ~' F-t c2i~ • o o v ~ y ~ z ~ ~ ~ -~ v o ~ ~ ~ ~ z 0 -~ e Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of C<m~Y~rland in the Commonwealth of Pennsylvania 674 NIDA 2010 to No. OS-423 Ci~~~ ~ -Term, 19 is contained the following: COPY OF WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG VS. STRICKLAND BRO'T'HERS CONSTRUCTION, LLC. DOCKET ENTRY **SEE CERTIFIED COPY OF DOCKET ENTERIES** YY~511 l.:U[RU~i1cLt1U I.UUt1Ly YiULilU1lUl.diy'~ VLi1C:C rayc i Civil Case Print 2008-00423 WESTFIELD INSURANCE CO (vs) STRICKLAND BROS CONSTRUCTION Reference No... Filed......... 1/18/2008 Case Ty e.....: COMPLAINT Time........ 12:27 Judgmen~......: 18,569.61 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00 0000 ------------ Case Comments ------------- Higher Crt l.: 674 MDA 2010 Higher Crt 2.: General Index Attorney Info WESTFIELD INSURANCE COMPANY PLAINTIFF D'EMILIO PAUL F SUB P O BOX 5001 WESTFIELD CENTER OH 44251 5001 SEIG CRAIG PLAINTIFF D'EMILIO PAUL F STRICKLAND BROTHERS DEFENDANT CONSTRUCTION LLC 621 CREEK ROAD CARLISLE PA 17013 Judgment Index Amount Date Desc STRICKLAND BROTHERS 18,569.61 6/01/2010 FINAL JUDGMENT CONSTRUCTION LLC ****************************************~**~***~r,~******************************* * Date Entries 1/18/2008 COMPLAINT FILED BY PAUL F DFEMILIONESQ FOR PLFF 1-17 ------------------------------------------------------------------- g 1/24/2008 SHERIFF'S FILE RETURNED FILED. yypp gg CasegTy~e: S~RICKLAND&BROTHERS CONSTRUCTIONRLLClar Liti an Address..: 623 CREEK ROAD Ctyy/St/Z CARLISLE, PA 17013 Hnd To: BREE HARVEY, SECRETARY, ADULT IN CHARGE Shf/D ty.; MARK CONKLIN Date/Time; 01/23/2008 0900:00 Costs....: $32.80 Pd By: PAUL E'EMILIO 01/24/2008 ------------------------------------------------------------------- Jq ~ oZ 2/13/2008 DEFENDANT'S ANSWER WITH NEW MATTER - BY MARK W ALLSHOUSE ATTY FOR DEFT 1p ------------------------- oC-1- 3g 2/13/2008 COMPLAINT JOINING ADDITIONAL DEFT CRAIG SEIG PURSUANT OT PENNSYLVANIA RULE OF CIVIL PROCEDURE 2229 - BY MARK W ALEHOUSE ATTY FOR DEFT ------------------------------------------------------------------- 3 -t'I,O 2/13/2008 ORDER OF COURT - 2/12/08 IN RE: THE COURT HAVING BEEN ADVISED THAT ANOTHER SUIT HAS BEEN FILED BY WESTFIELD INSURANCE COMPANY WHICH MAY NEED TO BE CONSOLIDATED WITH THE ABOVE CAPTIONED MATTER - IT IS HEREBY ORDERED AND DIRECTED THAT THIS COURT'S PREVIOUS ORDER OF 1/23/08 REQUIRING THAT THE PARTIES FILE PRETRIAL MEMORANDUM WITH THE COURT ON OR BEFORE 2/13/08 IS RESCINDED - IT IS FURTHER ORDERD AND DIRECTED THAT A STATUS CONFERENCE ON THIS CASE TO INCLUDE 4/029%08 ATP3E30NPMNINWCR5FCUMBERLAND COUNTYMCOURTHOUSEBE BYLM ON EBERT JR J - COPIES MAILED 2/13/08 ------------------------------------------------------------------- ~iI 3/06/2008 ACCEPTANCE OF SERVICE - COMPLAINT JOINING ADDITIONAL DEFENDANT CRAIG SEIG - BY JOHN H PIETZRAK ESQ FOR DEFT ----------------------------------- %l01- y ~ 3/11/2008 ANSWER AND NEW MATTER OF CRAIG SEIG ADDITIONAL DEFT TO THE COMPLAINT JOINING ADDITIONAL DEFT FILED BY STRICKLAND BROTHERS CONSTRUCTION LLC - JOHN H PIETRZAK ATTY FOR ADDITIONAL DEFT CRAIG SEIG ------------------------------------------------------------------- q -5 a,3 /20/2008 DEFENDANT'S REPLY TO ADDITIONAL DEFT'S NEW MATTER - BY MARK W ALLSHOUSE ATTY FOR DEFT STRICKLAND BROTHERS CONSTRUCTION LLC rY~511 ~umperlana ~ounzy rroLnonoLary~s ~==ice rdye ~ Civil Case Print 2008-00423 WESTFIELD INSURANCE CO (vs) STRICKLAND BROS CONSTRUCTION Reference No... Filed......... 1/18/2008 Case Ty e.....: COMPLAINT Time.........: 12:27 Judgmen~..... 18,569.61 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00 0000 ------------ Case Comments ------------- Higher Crt 1.: 674 MDA 2010 Higher Crt 2,: ------------------------------------------------------------------- $ ~j -`j~"~4/30/2008 ORDER OF COURT - 4/29/08 - AFTER STATUS CONFERENCE WITH COUNSEL AND IT APPEARING THAT ALL PARTIES AGREE TO CONSOLIDATION OF THESE CASES FOR TRIAL - IT IS HEREBY ORDERED AND DIRECTED THAT A- ALL DISCOVERY IN THESE CASES WILL BE COMPLETED ON OR BEFORE 7/30/08 B- PRETRIAL MOTIONS IN THIS MATTER SHALL BE FILED AND THE MOTIONS SET DOWN FOR ARGUMENT ON OR BEFORE 8/14/08 ARGUMENT OF ANY PRETRIAL MOTIONS WILL BE HELD AT ARGUMENT COURT ON 9 3/08 C- ALL PARTIES WILL FILE A PRETRIAL MEMORANDUM WITH THE COU T ON OR BEFORE 9/25/08 IN THE FOLLOWING FORMAT 1- A CONCISE STATEMENT OF FACTUAL ISSUES TO BE DECIDED AT TRIAL 2- A LIST OF WITNESSES THE PARTY INTENDS TO CALL AT TRIAL ALONG WITH A CONCISE STATEMENT OF THEIR ANTICIPATED TESTIMONY 3- A LIST OF ALL EXHIBITS EACH PARTY ANTICIPATES PRESENTING AT TRIAL 4- A STATEMENT OF ANY LEGAL ISSUES EACH PARTY ANTICIPATES BEING RAISED AT TRIAL ALONG WITH COPIES OF ANY CASES WHICH MAY BE RELEVANT TO RESOLUTION OF THE STATED ISSUE 5- AN ESTIMATE OF THE ANTICIPATED TIME NEEDED FOR THE PARTY TO PRESENT ITS CASE - D- TRIAL OF THIS MATTER WILL BE HELD AT 9:00 AM ON 10/3/08 IN CR5 CUMBERLAND COUNTY COURTHOUSE - BY M L EBERT JR J - COPIES MAILED 4/30/08 ----------------------------------------- fj J'~ 10/06/2008 ORDER OF COURT - 10/6/08 - AFTER THE FIRST DAY OF TESTIMONY IN THE- NON JURY TRIAL TN THIS MATTER IT APPEARS THAT POSSIBLY 2 MORE DAYS WILL BE NEEDED - IT IS HEREBY ORDERED AND DIRECTED THAT THE CONTINUATION OF THE NON JURY TRIAL WILL BE HELD ON 2/18/09 AT 9:00 AM AND 2 20 09 AT 9:00 AM IN CR5 CUMBERLAND COUNTY COURTHOUSE - BY M L EBER JR J - COPIES MAILED 10/6/08 ------------------------------------------------------------------- ~j(,p~ ~g 4/01/2010 OPINION AND ORDER OF COURT DATED 04-01-10 AFTER A NONJURY TRIAL THE VERDICT OF THE COURT - ML EBERT JR J - COPIES MAILED 04-01-10 ------------------------------------------------------------------- 1~'~ 4/15/2010 MOTION FOR POST TRIAL RELIEF REQUESTING MODIFICATION OF DECISION - BY MARK W ALLSHOUSE ATTY FOR PLFF -- r1~0'1Q34/20/2010 NOTICE OF APPEAL TO SUPERIOR COURT - BY MARK W ALEHOUSE ATTY FOR PLFF I0~'I-ID~'4/22/2010 ORDER OF COURT - 4/21/10 - IT IS HEREBY ORDERED AND DIRECTED THAT 1- PLFFS FILE A CONCISE STATEMENT OF THE ERRORS COMPLAINED OF ON APPEAL ON OR BEFORE 5/12/10 2- THE STATEMENT SHALL BE FILED OF RECORD 3- THE STATEMENT SHALL BE SERVED ON THIS COURT PURSUANT TO PA RAP RULE 1925 B 1 - IT IS FURTHER ORDERED AND DIRECTED THAT ANY ISSUE NOT PROPERLY INCLUDED IN THE STATEMENT SHALL BE DEEMED WAIVED - BY M L EBERT JR J - COPIES MAILED 4/22/I0 ~SA-- D ------------------------------------ ------------------------------- 4/22/2010 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 674 MDA 2010 ------------------------------------------------------------------- O(o-~~ 4/30/2010 ORDER OF COURT - 4/30/10 IN RE: MOTION FOR POST TRIAL RELIEF REQUESTING MODIFICATION OF DECISION - MOTION IS DENIED - BY M L EBERT JR J - COPIES MAILED 4/30/10 ------------ oL7 -I3 OS/10/2010 CONCISE STATEMENT OF MATTERS-COMPLAINED OF ON APPEAL - BY MARK W- ALLSHOUSE ESQ FOR PLFF ------------------------------------------------------------------- 3 ~ r~3 5/27/2010 IN RE: OPINION PURSUANT TO PA RAP ].925 - BY M L EBERT JR J - COPIES MAILED 5/27/10 ------------------------------------------------------------------- 13~ ~ 6/01/2010 PRAECIPE FOR ENTRY OF FIANL JUDGMENT - IN RE: JUDGE EBERT'S ORDER OF APRIL 1 2010 AND THE COURT'S APRIL 30 2010 DENIAL OF PLAINTIFF'S REQUEST FOR POST-TRIAL RELIEF - IN FAVOR OF WESTFIELD AND AGAINST SBC LLC IN THE AMOUNT OF $18,569.61 - BY MARK W ALLSHOUSE ATTY FOR DEFT STRICKLAND BROTHERS CONSTRUCTION LLC ------------------------------------------------------------------- 13 6/15/2010 TRANSCRIPT FILED - DAY 1 - BY M L EBERT JR J 2 ------------------------------------------------------------------- !V~ 6/15/2010 TRANSCRIPT FILED - DAY 2 - BY M L EBERT JR J ------------------------------------------------------------------- 6/17/2010 NOTICE OF DOCKET ENTRIES MAILED TO MARK W ALESHOUSE ESQ AND PAUL F PYS511 Cumberland County Prothonotary's Ottice rage Civil Case Print 2008-00423 WESTFIELD INSURANCE CO (vs) STRICKLAND BROS CONSTRUCTION Reference No..: Filed........: 1/18/2008 Case Tyyppe.....: COMPLAINT Time..;......: 12:27 Judgmeht......: 18,569.61 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR -- Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ----------- Higher Crt 1.: 674 MDA 2010 Higher Crt 2.: D' EMILIO ESQ - _ _ _ _ _ LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * * Fees & Debits Be Bal P is/Ad' End Bal COMPLAINT 55.00 55.00 50 .00 00 TAX ON CMPLT SETTLEMENT .50 8.00 . 8.00 . .00 AUTOMATION 5.00 00 10 5.00 10.00 .00 .00 JCP FEE JDMT . 14.00 ---- 14.00 ---------- --- .00 --------- ---------- 92.50 92.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUL COPY~12011LRECGRD In Testimer-y :Yi~~ f ~ers,un~o aet my hand and the Otseid.~ Carhta ~ Thia.~~~~..~~,- ~~ ~ ~~.~~ ' R , 1 ~u~erior court of ~ettu~pYbaufa Karen Reid Bramblett, Esq. Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary June 29, 2010 Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Strickland Bros. v. Seig, C. 674 M DA 2010 Trial Court Docket No: 06-2532 08-0423 Dear Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www.superior.court.state.pa.us n c ,_ ~ o , n t. C~ C.y> t..:1 received from the Superior Court of Pennsylvania, Middle District Office, the certificate of discontinuance of the court, in the above entitled case. QRIGIIdAL RECORD CQNTENTS Original Record Item Description ^ Parts w/2 Exhibit Folders 2 Return to: Superior Court of Pennsylvania Office of the Prothonotary Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 7177721294 /aas Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 - - ----- -- --- - ----------------------------------------------------------------------------------------------------------------- AOPC 1014 Rev.06/29/2010 L7 IN THE SUPERIOR COURT OF PENNSYLVANIA SITTING IN HARRISBURG No.674 MDA 2010 Strickland Brothers Construction, LLC. v. ~f;. ~_ ~,~ .._ S"~ 1-- ~_ ,_ _~~ ~ ~' :Appeal from the JE 6/1/10 :Court of Common Pleas Craig Seig :for the county of Cumberland No. 2532/06 0423/08 June 29, 2010 -The above appeal is hereby withdrawn and discontinued by order of: Mark W. Aflshouse, Esa. Attorney for Appellant June 29, 2010 -DISCONTINUED TRUE COPY FROM RECORD _~ :.; O 'Vi`i ;,~ w? ,_,_ ~~,. ~, r_~ - .~.. .~ ,. 41~ ..Y iJ[- 7 J'~ ~ ~ IN TESTIMONY WHEREOF, I have hereunto set my hand and the seal of said Court, at Harrisburg, this 29th day of June, 2010. Deputy rothonotary Karen Reid Bramblett, Esq. Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary June 29, 2010 NOTICE OF DISCONTINUANCE OF ACTION RE: Strickland Bros. v. Seig, C. 674 MDA 2010 Appeal of: Strickland Brothers Construction, LLC Initiating Document: Notice of Appeal Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 06-2532 08-0423 Pennsy]vania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www superioccourt. state.pa.us The above-captioned matter has been marked "Discontinued" with this court. Certification is being sent to the lower court. Attorney Name Participant Name Participant Type Mark Wayne Allshouse, Esq. Strickland Brothers Construction, LLC Appellant John Harold Pietrzak, Esq. Mr. Craig Seig Appellee Paul M. Schofield Jr., Esq. Westfield Insurance Company Appellee ~ ^1 0 cs Ti -v ~- ~ : ' " -,_. ~` ` ~ j._. ; F 1'33 ~r r~ ~ 1 ~ C'7 ~ ~, , . ~= - ~~ ~. J "~: PAUL F. D'EMILIO, ESQUIRE ~~ ~~`~ ~['~J~F3~~®1'Ar~`r ATTORNEY I.D.# 16654 2Q ~ ~ ~~-~ _ ~¢ ~,~.~ ~~; ~ c PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 ~~~,~~~~~`~~ ~~jUq~~-.~~• 905 W. SPROUL ROAD, SUITE 105 ^~'~:~~:gc;~~a ~~~b~~4~, SPRINGFIELD, PA 19064 , (610) 338-0338 ATTORNEY FOR THE PLAINTIFF WESTFIELD INSURANCE COMPANY COURT OF COMMON PLEAS AS SUBROGEE OF CRAIG SEIG P.O. BOX 5001 . WESTFIELD CENTER, OH 44251-5001: CUMBERLAND COUNTY Plaintiff vs. NO.: 08-423 STRICKLAND BROTHERS CONSTRUCTION , LLC. . 621 CREEK ROAD CARLISLE, PA 17013 Defendant ORDER TO SETTLE DISCONTINUE AND END TO THE PROTHONOTARY, P.C.: Kindly mark the above entitled matter settled, discontinued and ended upon payment of your cost only. ~~. Paul F. D'Emilio, Esquire Attorney for Plaintiff ~ ~~•~ a~ ~~ .~ a~°~