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Home My WebLink About08-1386-----ti ABRAHAM LAW OFFICES i 45 East Main Street, Hummelstown, PA 17036 (717)566-9380 MARK-1 RESTORATION SERVICE, INC.: IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY. PENNA. V. . NO. Q - 9"' - 13 K( o CHARLES HECKERT. : CIVIL ACTION - LAW CHARLES RUSSELL and PRISCILLA RUSSELL _ Defendants 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. Court Administrator 40' Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 I ' 1 MARK-1 RESTORATION SERVICE, INC.: IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNA. v. : NO. G - ' 310 CHARLES HECKERT, : CIVIL ACTION - LAW CHARLES RUSSELL and PRISCILLA RUSSELL Defendants COMPLAINT AND NOW, comes Plaintiff, Mark-1 Restoration Service, Inc., by and through its attorney, James W. Abraham, Abraham Law Offices, Hummelstown, Pennsylvania, and files the following: 1. Plaintiff, Mark-1 Restoration Service, Inc., is a New Jersey corporation in good standing, with offices in Harrisburg, Dauphin County, Pennsylvania. 2. Defendants, Charles Heckert, Charles Russell and Priscilla Russell, are adult individuals who reside at 256 East Main Street, Shiremanstown, Cumberland County, Pennsylvania. 3. Plaintiff is in the business of providing restorative construction services to properties damaged by fire, flood or by other similar means. 4. In 2006, Plaintiff provided extensive restorative construction services to Defendants' property located at 256 East Main Street, Shiremanstown, Pennsylvania (hereinafter "the Property"), which restorative services totaled in excess of $180,000.00 due to extensive fire damage to the Property. 5. In July, 2006, Defendants secured a mortgage to pay off the balance of Plaintiff s charges for the restorative services rendered to the Property of approximately $90,000.00 and Plaintiff and Defendant agreed to escrow Three Thousand ($3,000.00) Dollars (hereinafter "escrow money"), pending the completion of a few minor, additional services to the Property by Plaintiff. 6. The escrow money was held by the real estate settlement company which conducted the mortgage settlement in July, 2007, Zion Abstract, LLC, of State College, Pennsylvania (hereinafter "Zion Abstract"). 7. Plaintiff and Defendants' agreement regarding the escrow money and additional constructive/restorative services was confirmed and verified in writing pursuant to the letter of Defendants' prior attorney dated June 20, 2006. A true and correct copy of said letter is attached hereto and made part hereof as Exhibit "A". 8. As of January, 2007, Plaintiff completed all additional constructive/restoration services to the Property as agreed in July, 2006 and Defendant Priscilla Russell signed off on and accepted said services as completed to Defendants' satisfaction by signing the Certificate of Satisfaction dated January 15, 2007. A true and correct copy of said Certificate is attached hereto and made part hereof as Exhibit "B". 9. Shortly after Defendant Priscilla Russell signed the Certificate of Satisfaction, Plaintiff believes and therefore avers that Defendants and/or one of the Defendants contacted Zion Abstract regarding the escrow money and directed Zion Abstract to issue the escrow money in a check to Defendants, which Zion Abstract did by its check for $3,000.00, dated January 18, 2007, made payable to all three (3) Defendants. . 10. Defendants received the aforesaid Zion Abstract check, endorsed the check and deposited the check into Defendants' bank account with Commerce Bank on January 23, 2007. A true and correct copy of the front and back of the $3,000.00 check from Zion Abstract is attached hereto and made part hereof as Exhibit "B". COUNT I - BREACH OF CONTRACT 11. Plaintiff incorporates by reference paragraphs 1 through 10. 12. Despite the Agreement of Plaintiff and Defendants and the signing of the Certificate of Satisfaction by Defendant Priscilla Russell, Defendants never submitted the escrow money to Plaintiff after Defendants received the escrow money by way of the Zion Abstract check as of January 23, 2007. 13. Defendants failure to submit the escrow money to Plaintiff upon Defendants receipt of the escrow money constitutes a clear and indisputable breach of the parties' agreement and contractual obligations. 14. Despite plaintiffs repeated requests for the escrow money, Defendants have refused to pay Plaintiff the $3,000.00 escrow amount, which constitutes a continuing breach of the parties' agreement and contractual obligations. 15. At all relevant times hereto, Plaintiff was in full compliance with the agreement and contractual obligations between Plaintiff and Defendants. 16. Defendants never advised Plaintiff that Defendants received the escrow money as of January 23, 2007 and would have never advised Defendants of said money, as Plaintiff only learned of the distribution of the escrow money by Zion Abstract, upon inquiry by Plaintiff's attorney to Defendants' prior attorney; as Defendants' attorney attempted to contact Defendants as requested by Plaintiff's attorney regarding the escrow money, however, Defendants never responded to their own attorney; and it was not until after approximately ten (10) months that Plaintiff was able to confirm the actions of Defendants. 17. Plaintiff believes and therefore avers that Defendants did not keep the escrow money in their Commerce Bank account as Defendants spent the escrow money and used the escrow money for their own benefit. 18. Defendants are jointly and severally liable to Plaintiff. 19. Plaintiff submits that Defendants' breach of the parties' agreement and contractual obligations was deliberate, intentional and egregious, entitling Plaintiff to attorney fees and costs. WHEREFORE, Plaintiff respectfully requests Your Honorable Court to enter judgment in favor of Plaintiff and against Defendants, jointly and severally, in the amount of Three Thousand ($3,000.00) Dollars in compensatory damages, plus interest thereon from January 23, 2007 as determined by the Court, not to exceed arbitration limits, plus court costs and reasonable attorney fees in the amount of Two Thousand Five Hundred ($2,500.00) Dollars, as well as any other relief the Court may deem proper. COUNT II - FRAUD 20. Paragraphs 1 through 19 are incorporated herein by reference. 21. Defendants have intentionally, deliberated and egregiously defrauded Plaintiff of the escrow money by engaging in numerous acts of fraud, as Defendants, deliberately and intentionally: A. instructed Zion Abstract to issue the escrow money by check to Defendants instead of to Plaintiff; B. instructed Zion Abstract to issue the escrow money by check to Defendants and failing to advise Plaintiff that Defendants did so. C. upon receipt of the check, Defendants never contacted Plaintiff for over ten (10) months regarding their taking of the escrow money; D. failed to keep the escrow money in Defendants' Commerce Bank account and spent and/or used the escrow money for their own purposes and benefit. E. failed to advise their prior attorney that Defendants had secured the escrow money from Zion Abstract. F. avoided contacts by their prior attorney and never responded to their prior attorney's attempts to ascertain Defendants' knowledge of the status of the escrow money, pursuant to the inquiries of Plaintiff's attorney. G. accessed money which they absolutely and indisputably knew was specifically designated and belonged to someone else, i.e., Plaintiff, and used the escrow money for their own purposes and benefit. 22. Plaintiff believes and therefore avers that Defendants never had any intention of every disclosing to Plaintiff, to their own prior attorney or to anyone, that Defendants took the escrow money and spent it; and that Defendants non-disclosure was a deliberate, egregious and intentional attempt to conceal their actions in order to defraud Plaintiff of Plaintiffs designated and earmarked escrow money. 23. Defendants are jointly and severally liable to Plaintiff. 24. Plaintiff submits that the egregious, deliberate and intentional acts of fraud by Defendants entitle Plaintiff to compensatory damages, treble damages and punitive damages, plus court costs and attorney fees. WHEREFORE, Plaintiff respectfully requests Your Honorable Court to enter judgment in favor of Plaintiff and against Defendants, jointly and severally, in the amount of Three Thousand ($3,000.00) Dollars in compensatory damages, plus interest thereon from January 23, 2007 as determined by the Court, and alternatively and/or additionally, treble damages in the amount of Nine Thousand ($9,000.00) Dollars, plus punitive damages in the amount of Ten Thousand ($10,000.00) Dollars or as determined by the Court, not to exceed arbitration limits, plus court costs and reasonable attorney fees in the amount of Two Thousand Five Hundred ($2,500.00) Dollars, as well as any other relief the Court may deem proper. Respectfully submitted: James W. Abraham, Esq. Abraham Law Offices 45 East Main Street Hummelstown, PA 17036 (717) 566-9380 Attorney for Plaintiff, Mark-1 Restoration Service, Inc. DATE: 3/3/08 VERIFICATION I, Patrick Lister, on behalf of Mark- I Restoration Service Inc., the undersigned, hereby verify and confirm that I have reviewed the foregoing document and the statements made therein are true and correct to the best of my knowledge, information and belief. I further understand that any false statements made herein are subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unworn falsification to authorities. DATE: 2/29/08 JIL-141 J?>r? Patrick Lister Mark-I Restoration Service, Inc. E2j j j BJ CG S JAMES D. BOGAR JAMES D. BOGAR JENNIFER B. HIPP• 'Also admitted to New Jersey Bar ATTORNEY AT LAW ONE WEST MAIN STREET SHIREMANSTOWN, PENNSYLVANIA 17011 e-mail mail@bogarlaw.com June 20, 2006 James W. Abraham, Esquire ABRAHAM LAW OFFICES 2157 Market Street Camp Hill, PA 17011 TELEPHONE (717) 737-8761 FACSIMILE (717) 737-2086 Direct e-mail )hlpp®bogarlaw.com RE: Heckert and Russell - Mark 1 Restoration Service, Inc. Dear Mr. Abraham: We have reviewed your June 9, 2006 correspondence with our clients. We are pleased that we have reached an agreement with Mark 1 Restoration Service, Inc. (hereinafter, "Mark 1,,) as to the escrow amount of 3,000.00. My clients appreciate that you will not proceed with any work until your client is paid the balance of funds due to it. At this point, my clients advise that they are primarily concerned as to repairing the hole in the drywall in the "blue" bathroom. In addition, my clients are most concerned as to the shingles lifting on the front porch. My clients' present position is that they will no longer pursue a refund of the $300.00 fee paid by them to the Shiremanstown Zoning Hearing Board. They also will no longer pursue the air conditioning, the light switch and the bathtub issue in the "blue" bathroom. Please contact us should you have any questions regarding this matter. Very truly yours, FE B. HIPP JBH/bbl cc: Charles R. Heckert Charles W. Russell Priscilla E. Russell Keith Heckert ??????? ?f??9? ,r,rrtni. - \ ) Y I? _ l 109 Loiay®tte 3trset - Rfvergdo, Now Jaresy.ow75 w/76 j4M 1257 Dekdb Pike • Blue get Penrmyk=1o 19422 6i0/276•9060 42 bayton Road • JomesburQ NewJwW0W1 7VJM&1260 7921 Grayson Road • HarrlsWr0, Penn4+mn1a 17111 717/561-12U That portion of the restoration for which Mark 1 Reatoraklan wee, Jae. is reponsible has been restored to our satisfaction, and we hereby release and from all claims and demands for that portion ofthe loss or damage handled by Mark 1 Reekwation. Sew, Inc., which occurred on or about the f ,-.ANVARAI 200 and a prise the payment of the cost of such restoration to Mark 1? whose receipt for same shall be a complete acquittance for said pwUm of loss or, do m p Date _ ,-.. /.r O 7 ASSURED r,.t f, ,2&f'4 e e CERTIFICATE OF SATISFACTION K?a9 ENUIBI u fn1144p•• lost/ n t f n Iwo ar n.r O r W r+ r ¦. ;Ln fjJ M ? rw a= r w w • e v W y W C N H Iw C as ti r+ ?x CID 1 p • lima x 9 ? ?y i M ? • 1 t rnn plinn • 1 I n. I 1 / 41 n •_1 t. -" r i I a n MN /Z129! If 41/1! ?-f ;'', r . t1.'?'rasM•,rw,,? a ?'. ?.N.r••.4rYR ?..?? M%I A! ? ? 1 t C uL,.y ? G? . -w , .. _ IV • ? ? i p i n - FnniFnn .d 14 a W {V v w? wp N ? LS ?, N? o a„ 05 N ?P in:ai ranutinna-ci-iin O s? ur ln? J? C? ?vp r"- R 1 .. A SHERIFF'S RETURN - REGULAR CASE NO: 2008-01386 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MARK 1 RESTORATION SERVICE INC VS HECKERT CHARLES ET AL STEPHEN BENDER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon HECKERT CHARLES the DEFENDANT , at 1355:00 HOURS, on the 11th day of March 2008 at 256 EAST MAIN STREET SHIREMANSTOWN, PA 17011 by handin to PRISCILLA RUSSELL g ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 12.48 Postage .58 Surcharge 10.00 00 41.06 Sworn and Subscibed to before me this day of So Answers: R. Thomas Kline 03/13/2008 ABRAHAM LAW OFFICES By. A ?4t Dep ty Sheriff A. D. SHERIFF'S RETURN - REGULAR CASE NO: 2008-01386 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MARK 1 RESTORATION SERVICE INC VS HECKERT CHARLES ET AL STEPHEN BENDER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon RUSSELL CHARLES the DEFENDANT at 1355:00 HOURS, on the 11th day of March 2008 at 256 EAST MAIN STREET SHIREMANSTOWN, PA 17011 by handing to PRISCILLA RUSSELL, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 00 3JIti/D 16.00 Sworn and Subscibed to before me this day of So Answers: R. Thomas Kline 03/13/2008 ABRAHAM LAW OFFICES By ?jc?•-`? Deputy Sheriff A. D. ,i t ? CASE NO: 2008-01386 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MARK 1 RESTORATION SERVICE INC VS HECKERT CHARLES ET AL STEPHEN BENDER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon RTT.gg7T,T, PPTgrTT T the DEFENDANT , at 1355:00 HOURS, on the 11th day of March 2008 at 256 EAST MAIN STREET SHIREMANSTOWN, PA 17011 PRISCILLA RUSSELL by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 3Jr q/o P X16.00 Sworn and Subscibed to before me this day of , So Answers: R. Thomas Kline 03/13/2008 ABRAHAM LAW OFFICES By: 2?i-- Z?? Deput Sheriff A. D. ij V3. In the Court of Common Pleas of Cumberland County, Pennsylvania No. UP/ - l 36 (p civil-P9- o?aG To Prothonotary 19 w Attorney for NaW44-- Na Term, 19 VS. PRAECIPE Filed 19 Atty. MNdAUSNN3d AINnoo ni,", 9vm L S =QI WV I- MOW AUVIONOIHi 3KL 4 301±?C_ MARK-1 RESTORATION SERVICE, INC.: IN THE COURTOF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNA. V. CHARLES HECKERT, CHARLES RUSSELL, and PRISCILLA RUSSELL Defendants : NO. 08 -1386 : CIVIL ACTION - LAW To: James W. Abraham, Esquire (Attorney of Record for Plaintiff) You are hereby notified to file a written response to the enclosed Answer to Plaintiff's Complaint with New Matter, Affirmative Defenses, and Counterclaims, within twenty (20) days from service hereof or a judgment may be entered against you . By: A Geoffrey M. Biringer, Esq. MidPenn Legal Services 8 Irvine Row Carlisle, PA 17013 (717)243-9400 /? CJ Date MARK-1 RESTORATION SERVICE, INC.: IN THE COURTOF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNA. V. CHARLES HECKERT, CHARLES RUSSELL, and PRISCILLA RUSSELL Defendants NO. 08 - 1386 CIVIL ACTION - LAW ANSWER, NEWMATTER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS ANSWER 1. Denied. Defendants are without information sufficient to form a belief as to the truth of the allegations and demand proof at trial. 2. Admitted. 3. Denied. Defendants are without information sufficient to form a belief as to the truth of the averments and demand proof at trial. 4. Admitted. 5. Admitted in part. It is admitted that Defendants secured a mortgage to pay off the balance of Plaintiff's charges, and $3000 was placed in escrow, but it is denied that there was an escrow agreement. By way of further answer, there was discussion between the parties about a need for Plaintiff to complete repairs to the property before the final release of monies, but Defendants would not characterize those repairs as "minor." 6. Admitted. 7. Denied. There was no agreement regarding the escrowed funds. Further, Defendants' prior attorney's letter of June 20, 2006 was a direct response to Plaintiff's attorney's letter of June 9, 2006 (attached hereto as Defendants' Exhibit "A") advising that when Plaintiff received a draw of $89,835, they would address/repair problems which problems were, in large part, never addressed or repaired. 8. Denied. As set out more fully in New Matter, Affirmative Defenses, and Counterclaims below, Plaintiff did not complete all of the promised constructive/restoration services. Defendants Priscilla Russell, Charles Russell, and Charles Heckert, unsophisticated consumers, were led to believe by Plaintiff's agent or employee that said "Certification" pertained only to repairs made to the "blue" bathroom. Further, said document is blank as to the entity or entities released and/or discharged, and the said document appears to be a "release"of third parties, not evidence of satisfaction for work completed. 9. Admitted. 10. Admitted. WHEREFORE, Defendants demand that Plaintiff s Complaint be dismissed with prejudice and judgment entered for Defendants. COUNT I - BREACH OF CONTRACT 11. No response required. 12. Admitted in part. It is admitted that Defendants never submitted the escrow money to the Plaintiff, but it is denied that said money was due. It is further denied that there was an escrow agreement or that Defendants were "satisfied" with the job that Plaintiff was supposed to do. 13. Denied. Allegation is a conclusion of law to which no response is required. 14. Admitted in part. Admitted that Defendants have refused to pay Plaintiff the requested amount. Denied in that the allegation is a conclusion of law to which no response is required. 15. Denied. Plaintiff was never responsive to Defendants' requests for repairs and has never completed those repairs to the satisfaction of the Defendants and the quality standards of the industry. 16. Admitted in part. It is admitted that Defendants did not advise Plaintiff of the receipt of the escrow money as the Defendants did not believe Plaintiff was entitled to it. Denied as to when Plaintiff confirmed the action of the Defendants as said information is in the exclusive control of the Plaintiff. 17. Denied that Defendants did not keep the money in their Commerce Bank. Admitted that they spent the money for their own benefit as was their right, as more fully set out below. 18. Denied. Defendants Charles Russell and Priscilla Russell did not enter into any agreement with the Plaintiff as more fully set out in New Matter, Affirmative Defenses, and Counterclaims below. By way of further answer, allegation is a conclusion of law to which no response is required. 19. Denied. As more fully set out below, Defendants breached no agreement with the Plaintiff as Plaintiff failed to complete the requested work. WHEREFORE, Defendants demand that Plaintiff s complaint be dismissed with prejudice and judgment entered for Defendants. COUNT II - FRAUD 20. No response required. 21. Denied. Defendants acted at all times out of a sincere belief that Plaintiff was not entitled to the sum at issue as Plaintiff, as more fully set out below, refused to respond to their numerous requests for satisfaction of the necessary repairs promised to their home: a. Admitted; b. Admitted, but denied that Defendants had an obligation to advise Plaintiff, as there was no escrow agreement; C. Admitted in part. Denied that Defendants had an obligation to contact Plaintiff; d. Admitted that Defendants used the money for their own benefit but denied that Defendants had an obligation to keep their escrow money in any particular place or refrain from spending it as they saw fit, as there was no escrow agreement; e. Denied; Defendant's prior attorney advised Defendants that the escrowed money was to be released to them; f. Denied; Defendants' remained in touch with their prior attorney at all relevant times herein; g. Denied; Defendants were advised that the escrow money was theirs, as Plaintiff did not complete the requested work, there was no escrow agreement, and Zion Abstract released the money to Defendants as it was Defendants' money and no agreement for its release to Plaintiff was in existence. 22. Denied. As stated more fully below, Plaintiff was not entitled to escrow money either by agreement or in fact, as Plaintiff did not respond to Defendants' valid requests to perform the remaining necessary work contracted for by Defendant Heckert. 23. Denied. Defendants Charles Russell and Priscilla Russell did not enter into any agreement with the Plaintiff as more fully set out in New Matter, Affirmative Defenses, and Counterclaims below. By way of further answer, allegation is a conclusion of law to which no response is required. 24. Denied. Defendants at all times acted in good faith and on the advice of their former attorney, and were entitled to withhold the escrowed funds until the work was properly performed. By way of further answer, if Defendants are found liable at all, which liability is specifically denied, their actions were not egregious or fraudulent as they had good faith reasons to believe that the Plaintiff was not entitled to any additional funds due to Plaintiff's unresponsiveness to their requests for repairs at all relevant times herein. WHEREFORE, Defendants demand that Plaintiff's complaint be dismissed with prejudice and judgment entered for the Defendants. NEW MATTER 25. Paragraphs 1-24 are incorporated herein by reference hereto. 26. Defendant Priscilla Russell is functionally illiterate, having achieved only the sixth grade in a course of special education. 27. Defendant Charles Russell is functionally illiterate, having achieved only the ninth grade in a course of special education. 28. Defendant Charles Heckert is functionally illiterate, having achieved the seventh grade, and in addition, has Parkinson's Disease, Diabetes, heart problems, and, for the past several years, has been partially blind. 29. Plaintiff knew that Defendants were disabled and unsophisticated consumers, and took advantage of their disabilities during the course of the restoration services, by not being responsive to their legitimate requests for work not done as requested and for work not done in accord with accepted industry standards 30. Plaintiff's restoration contract was with Defendant Charles Heckert alone (Defendants' Exhibit "B" attached). 31. Defendants paid the Plaintiff all but $3,000 on the contract which was placed in escrow, without agreement, in an effort to require Plaintiff to complete the work to the satisfaction of the Defendants. 32. The work which was not addressed or repaired by the Plaintiff, or done in a workmanlike manner pursuant to local Code or industry standards after Defendants' repeated demands that they do so, and which work is outstanding today, includes, but is not limited to, the following: a. Light sensor in back yard inoperable; b. Railing to second floor not properly attached; C. Shingles on roof turning up; d. Back yard deck not properly attached to house; e. Back porch steps nailed, not screwed; f. Porch not properly braced; g. Porch railing not properly attached; h. Light switch in bathroom "sparking"; i. Dining room fan "burning" and "smoking"; j. Drywall incorrectly fastened; 33. As a result of Plaintiff's failure to complete the said repairs in a workmanlike manner, the Defendants have been damaged in the approximate amount of $11,410.00 for which they have obtained an estimate to finish the job that Plaintiff should have done. (Estimate attached hereto as Defendants' Exhibit "C") 34. Plaintiff installed a handicap ramp at the front of the house for Defendant Heckert without checking the Shiremanstown building and zoning code to determine the proper setback for the ramp. 35. As a result, Defendants, on their own, and at a cost of $300, pursued and received a variance from Shiremanstown's Zoning Hearing Board. 36. Said variance and expense would not have been necessary had Plaintiff determined the proper setback for the ramp. AFFIRMATIVE DEFENSES 1. Lack of Privity 37. Paragraphs 1-36 are incorporated herein by reference hereto. 38. The Demolition and Rebuild Contract was signed by Plaintiff and Defendant Charles Heckert only. 39. Defendants Priscilla Russell and Charles Russell, therefore, are not liable to the Plaintiff. WHEREFORE, Defendants Priscilla Russell and Charles Russell demand that Plaintiff s Complaint be dismissed with prejudice as to them and judgment entered in their favor. II. Breach of Contract, Setoff 40. Paragraphs 1-39 are incorporated herein by reference hereto. 41. Plaintiff breached the Demolition and Rebuild Contract as to Defendant Heckert by failing to address/repair problems with the work that was brought to Plaintiff's attention by the Defendants. 42. These problems equaled or exceeded, as set out below, the $3000 escrowed by the Defendants specifically for this purpose. WHEREFORE, Defendants demand that Plaintiff's Complaint be dismissed with prejudice and judgment entered for the Defendants. COUNTERCLAIMS 1. Breach of Contract 43. Paragraphs 1-42 are incorporated herein by reference hereto. 44. By failing to make the requested repairs to the dwelling in a workmanlike manner, Plaintiff breached the contract with the Defendant Heckert. 45. Said breach was material and resulted in damages to the premises in the approximate amount of $11,410 representing an estimate of the cost to fix the work that should have been done originally by the Plaintiff. 46. Plaintiff's failure to properly place the handicap ramp pursuant to local code requirements cost Defendant Heckert $300 which should be reimbursed by the Plaintiff. WHEREFORE, Defendant Heckert requests that judgment be entered in his favor and against the Plaintiff in the amount of $11,710 representing an estimate of the cost of repairs necessary to fix the work that should have been completed by the Plaintiff, which amount is within the amount requiring referral to Arbitration. II. Unfair Trade Practices and Consumer Protection Law 47. Paragraphs 1-46 are incorporated herein by reference hereto. 48. In failing to perform the above mentioned repairs in a workmanlike manner, the Plaintiff violated Pennsylvania's Unfair Trade Practice and Consumer Protection Law, specifically at the following sections: a. Section 201-2(4) (ii)(iii)(v)(vii) in that Plaintiff impliedly certified that the work they did was "up to Code" standards in the Borough of Shiremanstown when it was not, in fact; b. Section 201-2(4) (xvi) in making repairs of an inferior quality to that agreed to in writing; Section 201-2(4) (xxi) in engaging in deceptive conduct toward the disabled and unsophisticated Defendants by persuading them that the job was performed in a workmanlike manner when in fact it was not. 49. In attempting to collect a debt that Plaintiff knew Defendant Priscilla Russell and Charles Russell were not responsible for, and in attempting to collect a debt from Defendant Heckert when Plaintiff knew there was no escrow agreement in place for the $3,000 at issue, Plaintiff violated Pennsylvania's Fair Credit Extension Uniformity Act, 73 P.S. Section 2270.4(b)(5)(ii). 50. Plaintiffs conduct, in taking advantage of the Defendants, was outrageous and should result in an award of treble damages as permitted by 73 P.S. Section 201-9.2(a), or in the alternative, statutory damages. WHEREFORE, Defendant Heckert demands judgment in the total amount of Thirty-Five Thousand One Hundred and Thirty Dollars ($35,130), within the amount requiring referral to Arbitration. Date:` ! `a6 MIDPENN LEGAL SERVICES By: Geoffrey M. Biringer 401 E Louther Street Carlisle,PA 17013 (717) 243-9400 Supreme Court ID#18040 IPR-16-08 WED 04:34 PM FAX NO. P. 02 ABRAHAM LAW OFFICES JAMFS W. ABRAIJAA4 ATTORNEY AT LAW 2157 MARKET STREET CAMP HILL, PA 17011 (717) 763-1700 " FAX (717) 763.1706 abelaw@comeast.net www.abrahomiswoPflces.com 1-866-9-ADE-LAW FAST CWQRT--, OF 45 I?AST MAIN ISTRUT HUMIMU STOWN. PA 17036 (717) 566-9380 "Re-ply to Camp (1111 June 9, 2006 AY 1,~AX & MAIL Jenni fer B. Hipp, Esq. Onc West Main St. Shiremanstown, PA 17011 RF,; fleckrrt et al-- Mark 1 Restoration Service, Inc. De.at, Altorney Hipp; As we discussed in our recent telephone conversation, I represent Mark 1 Restoration Service, Inc. ("Mirk I") in regard to the services provided by Mark 1 to your clients at 246 East Main Sireet ill sWremanstown. In regard to the matters addressed in your May 26, 2006 letter, as I advised, my client is very concerned regarding the delay in your clients' closing for their mortgage/loan from which they ore t-) Pay to Mark. 1 the tunount of $92,835, which is the balance due. My client previously spoke with. the lender's office and was assured that the loan was going through, but the lender's re-presentalive did not give any information as to a date for the closing on the loan or issuance of tlic loan proceeds. You had mentioned in our conversations that you were told the same thing by the lender. and attain, there is no date set for the closing and/or for the release of the funds. My client has been very patient as to payment of the final amount due, which is not a small ainoulit of ntoney by any means. As I referenced in our conversation, my client will agree to your proposed escrow of $3,000, but understandably, will not proceed with any additional work until the $89,835 is received. Please be advised that immediately after my client receives the $89,835, my client will promptly address and/or repair the problems referenced in your letter. most likely the next day. As to the problems referenced in your letter, Patrick Lister of Mark 1 advised me that he had an opix. irtunity to take a look at the niedicine cabinet issue in the "blue" bathroom. Mr. Lister ndviricd that the only repair required is to fix a one (1) inch hole in the drywall, which should be easity rume4lied. 4!'?..,As, APR-16-08 WED 04:34 PM FAX NO, P. 03 Pale Two Hipp 6/9/06 Mr. Uster was not aware of the issue regarding the light switches in the "blue" bathroom and first tcanjed of any problcm when he received your letter. Mr. Lister is more than willing to addn:ss and/or repair that problem as well. In regard to the air conditioning, :3s 1 mentioned in our conversation, if there is a problem, my clic nt will take the necessary steps to address and/or repair any issuo with the air conditioning. In regard to the $300 application fee, frankly, it is difficult for my client to think about paying $300 for doirig something for your clients at no charge for either labor or materials; and Mark 1 was tt,?ver required to install a rarnp pursvant to the restoration plans. Mark 1 provided over $1,000 in labor and materials by installing the ramp; and did so voluntarily after talking witll'Mr, lieckert, as Mr. Lister installed the ramp to try to help Mr. Heckert as to getting in and out of his lhotise. Now, your clients want Mark 1 to pay $300 for doing a $1,000 favor for Mr. Heckert, which with all clue respect, is simply not fair or equitable. From a business standpoint, it makes more sense for Mark 1 to remove the rump, which they are ready to do, rather than pay $300, which Mark 1 will not do. 1 submit that your clients should have contacted Mr. Lister before raying anything to tit-,- Township, at which time Mark 1 would have removed the ramp and no fee would have bcem incurred. As tc? the bathtub issue we discussed by telephone, although I am not sure what your clients are s;ugg..,s, inl3, please be advised that Mark 1 removed the bathtub, had it restored and re-installed the bathtub; that's it. I have enclosed a copy of the Invoico from "The Bathtub Doctor" who restored the bathtub. I submit that the standard procedure in these matters is for a builder and/or restoration service to secure the Certificate of Occupancy, certifying the premises as to their condition and to issue the Certificate upon the receipt of payment and/or appear at the closing, issue the Certificate and receive payment at closing. As you may be aware, without any notice to Mark 1 and without payn'tent ofthe amount clue, your clients, on their own volition, went ahead and secured the Certificate and bcgan living at the property while still owing Mark 1 over $90,000. Conversely, X submit that my client has conducted business in good faith throughout this project and although payment of the balance due has been assured for weeks if not months, we are now in lutie and there is no information as to receipt of payment and no date scheduled as to a closing or for release of the funds. -IPR-16-08 WED 04:35 PM FAX NO. page Three Hipp 619106 Also, today Mr. Lister informed me that Priscilla Russell contacted him regarding shingles on the porch which were "lifting." Please be advised that if there is a problem with the shingles, Mark 1 will address that problem at the same time as the aforesaid issues with the property. Plea;ie advise as to where my client can cxpcct to rcceivc payment of the $84,835 and again, thcrenftor, Mark 1 will promptly address and/or repair the aforesaid problems and thereaftor, receive the $3,000 in escrow. Stile-, ely. James W. Abraham P. 04 JWAAa Enclosure c: Mark 1 Restoration Services, Inc. L . Specialists in Reconstruction & Cleaning • Property Loss Estimatin RESTORATION SERVICE, INC. g ?j 7921 Grayson Road, Harrisburg, PA 17111 717-561-1255 Fax 717-561-1277 Charles Heckert 256 E. Main Street Shiremanstown, PA 17011 Demolition and Rebuild Contract Demolition ...................................................................$19,875.00 *Includes board up, permit & debris removal Design/Drafting Services ............................................$2,960.00 *Based on a 1600 sq ft home @ $1.85 a sq ft Reconstruction of Home .............................................$160,000.00 *Based on a 1600 sq ft home $100.00 a sq ft The square foot price is based on a 1600 square foot home with an unfinished basement. This is a Turn Key Project. The price is based on average quality building materials. Any upgrades will be handled with an order change and must be paid in full prior to the work starting. Mark 1 Restoration Homeowner(s) 109 Lafayette Street Riverside, NJ 08075 856/764-9700 856/764-9106 Fax 1257 DeKalb Pike, Blue Bell, PA 19422 610/275-9050 610/275-9020 Fax 42 Dayton Road, Jamesburg, NJ 08831 732/656-1260 732/656-1290 Fax ii? 11 ,6-X. Tel: (717) 766-0262 - Fax: (717) 766-0263 www. CORconstruction. com 12-B Long Lane r sertires, inr. Mechanicsburg, PA 17050 April 28, 2008 Priscilla Russell 256 Main St. Shiremanstown, PA 17011 Attention: Priscilla Reference: Proposal for misc. repairs to address referenced above COR - Residential Proposal - # 08-016 Dear Priscilla, We are pleased to provide the following proposal for repairs to address referenced above. The following scope of work and associated costs are as follows: Work Includes A. Repairs to drywall - SLY THOUSAND SEVEN HUNDRED SIXTY DOLLARS ($6,760. OQJ 1. Provide labor, specified material and construction equipment needed to complete the following scope of work 2. Provide for 1 man for 40 hr. to make repairs to drywall. ( nail pops, Repair corner tape. Etc.) 3. Prime all repairs with one (1) coat of prime. 4. Paint finish coat on repairs to corner of rooms to blend as well as possible. B. 2ndJloor bath sink -FIVE HUNDRED THIRTY FOUR DOLLARS ($534.00) 1. Straighten sink with back wall. 2. Install side splash to cover out of square wall. 3. Caulk around top. C. Deck Repairs -TWO THOUSAND SEVEN HUNDRED SIXTY FOUR DOLLARS ($2,764.00) 1. Remove excessively cracked and twisted lumber and replace. 2. Lumber cracked at screw holes not considered excessive. 3. The railing connected to the house is not a necessity and is not needed for structural integrity of the rail. quality - commitment - integrity - service t/c, 4 '25k . D. Interior Railing - ONE THOUSAND THREE HUNDRED FIFTY TWO DOLLARS (.1,252.001 1. Repair loose newel post at bottom of'steps. ?. Replace wall railings that does not match railing at bottom of steps. (Type of rail and color are different) Total of all above scope of work will be completed for a total cost ELEVEN THOUSAND FOUR HUNDRED TEN DOLLARS ($11,410. 00) Note: Due to unstable material costs, the above price quote will only be valid for 30 days. Work Excludes: 1. Overtime/Premium Time. (Work is priced for Regular Working Hours). 2. Holidays 3. Excludes anything not listed in scope of work above. We thank you for this opportunity to be of service to you. Please feel free to call with any questions or comments that you may have. Thank you and have a great day! Respectfully Submitted, COR Construction Services, Inc. David Musser Vice President - Estimating Cc: File / Field File / Cory Shover / Chad Zullinger / David Good VERIFICATION I, CHARLES HECKERT, make this verification that the facts set forth in the foregoing Answer with New Matter, Affirmative Defenses and Counterclaims are true and correct to the best of MY knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904 relating to unsworn falsification to authorities. Date: J-/ //e)g /, --L ,1- /-* ? ? CHARLES HECKERT VERIFICATION We, CHARLES RUSSELL and PRISCILLA RUSSELL, make this verification that the facts set forth in the foregoing Answer with New Matter, Affirmative Defenses and Counterclaims are true and correct to the best of our knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904 relating to unsworn falsification to authorities. Date: Date: CHARLES RUSSELL PRISCILLA RUSSELL CERTIFICATE OF SERVICE The undersigned hereby certifies that on the date stated below, he served a true and correct copy of the within Notice To Plead and Answer, New Matter, Affirmative Defenses, and Counterclaims, by mailing same to the office of Plaintiff's attorney of record by first class mail addressed as follows, which service satisfies the requirements of Pa.R.C.P. No. 440: James W.Abraham, Esquire Abraham Law Ofices 45 East Main Street Hummelstown, PA 17036 Date: 4-/i A-F By: Geoffrey M. Biringer r.?'. v MARK-1 RESTORATION SERVICE, INC.: IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNA. V. CHARLES HECKERT, CHARLES RUSSELL and PRISCILLA RUSSELL Defendants :NO. 08 - 1386 : CIVIL ACTION - LAW PRAECIPE TO SETTLE. DISCONTINUE AND TERMINATE Please mark the above-captioned action settled, discontinued and terminated as to Plaintiffs Complaint against all Defendants and as to all claims and/or counterclaims of Defendants against Plaintiff. Respectfully sub 'tted: James W. Abraham, Esquire Abraham Law Offices 45 East Main Street Hummelstown, PA 17036 (717) 566-9380 Attorney for Plaintiff, Mark-1 Restoration Service, Inc. Respectfully submitted: _G 2444 ? Geo oft2inger. Esquire MidPenn Legal Services 401 East Louther Street Carlisle, PA 17013 (717) 243-9400 Attorney for Defendants, Charles Heckert, Charles Russell and Priscilla Russell DATE: DATE: & 3/I" FILED-OFFICE OF THE C?[ y! ?? NOJARY 1009 SEP --3 PM 2., 5 2 PE NS`s'CVt ,liA f