HomeMy WebLinkAbout08-1673• .
KENNETH A. MILLAGE and
JANET E. BEX,
Plaintiffs
VS.
DAVID E. GRAY,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. : p$ - ?(0?3 C?vi t Term
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE
You have been sued in court. If you wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this Complaint and Notice are served
by entering a written appearance personally or by attorney and
filing in writing with the court your defenses or objections to the
claims set forth against you. You are warned that if you fail to
do so, the case may proceed without you and a judgment may be
entered against you by the court without further notice for any
money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff. You may lose money or property or
other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER 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
1-800-990-9108
KENNETH A. MILLAGE and
JANET E. BEX,
Plaintiffs
Vs.
DAVID E. GRAY,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO..
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICIA
Le han demandado a usted en la torte. Si usted guiere
defenderse de estas demandas expuestas en las paginas siguientes,
usted tiene viente (20) dias de plazo al partir de la fecha de la
demanda y la notificacion. Usted debe presentar una apariencia
escrita o en persona o por abogado y archivar en la corte en forma
escrita sus defensas o sus objectiones a las demandas en contra 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 notificacion y por cualquier queja o alivio que es pedido
en la peticion de demanda. Usted puede perder dinero o sus
propiedades o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE
ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO,
VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SU PUEDE CONSEGUIR
ASISTENCIA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PA 17013
(717) 249-3166
1-800-990-9108
KENNETH.A. MILLAGE and IN THE COURT OF COMMON PLEAS
JANET E. BEX, CUMBERLAND
COUNTY,
PENNSYLVANIA
Plaintiffs
NO. . OF- /b 73 Cta` 4
Vs.
CIVIL ACTION - LAW
DAVID E. GRAY,
Defendant JURY TRIAL DEMANDED
COMPLAINT
AND NOW, come the Plaintiffs, by and through their attorney,
Cleckner and Fearen, and in support of the within Complaint, aver
as follows:
1. Plaintiffs are Kenneth A. Millage and Janet E. Bex (also
known as Janet E. Millage), adult married individuals, who reside
at 3301 Lisburn Road, Mechanicsburg, Cumberland County, Pennsylvania
17055.
2. Defendant is David E. Gray, an adult individual who trades
and does business as Gray's Landscaping, General Contracting and
Excavating, 111 West Broad Street, Elizabethville, Pennsylvania
17023.
3. On or about July 20, 2006, Plaintiff entered into a written
contract with Defendant, under which Defendant agreed to rebuild
certain steps and a walkway and to perform related work at Plaintiffs'
residence for the contract sum of $18,980.00. A copy of the
agreement is attached hereto, made a part hereof, and labeled Exhibit
"A"
4. During October, November and December of 2006, Defendant
and his agents and employees performed certain work at Plaintiffs'
residence, for which Plaintiffs paid the Defendant the total sum of
$21,357.00.
5. The written agreement between the parties provides that
Defendant will complete the work in a workmanlike manner according
to standard practices.
6. Defendant did not perform the work in a workmanlike manner
according to standard practices.
7. By written agreement executed by Defendant on or about March
9, 2007, Defendant agreed to perform remedial work for Plaintiffs
in the particulars set forth in the agreement, a copy of which is
attached hereto, made a part hereof, and labeled Exhibit "B".
8. In Exhibit "B", Defendant agreed to commence the remedial
work in March of 2007, to complete it within one (1) week, and to
guarantee the work for a period of five (5) years after completion.
9. On March 30, 2007, Defendant contacted Plaintiffs by
telephone and advised them that he would be in contact early during
the first week of April to perform the work that week.
10. No further contact was made by Defendant until May 4, 2007,
when Defendant left a message that the work would commence May 7,
2007.
11. On May 7, 2007, Defendant did not appear to perform the
work, and during the phone conversation initiated by Plaintiff
Kenneth Millage, indicated that he would do the work on May 8, 2007.
12. Also during the phone conversation on May 7, 2007,
Plaintiff Kenneth Millage informed Defendant that the electrical
work did not comply with the applicable electrical code, and
Defendant verbally agreed to have a licensed electrician make the
corrections at Defendant's expense.
13. On May 8, 2007, Plaintiff Kenneth Millage took off work,
but Defendant did not appear. At 1:11 p.m. on May 8, 2007, Defendant
left message on Plaintiff Kenneth Millage's voice mail at work that
he was not coming because of a heavy rain forecast, and that he would
do the work on May 14, 2007.
14. It did not rain on May 8 or May 9, 2007.
15. Defendant did not appear on May 14, 2007, as scheduled.
16. On May 30, 2007, without prior notice, two (2) individuals
purporting to be employees of Defendant appeared at Plaintiffs'
residence to find out for Defendant what work Plaintiffs wanted to
have done.
17. In addition to the deficiencies described on Exhibit "B"
heretofore, the work performed by Defendant was not done in a
3
workmanlike manner according to standard practice, in the following
particulars:
A. The steps built by Defendant violate the 2006
International Residential Code, and because they are
of varying heights, are dangerous.
B. Erosion has occurred in the planting bed and at the
retaining wall.
C. A portion of one of the steps has collapsed, and some
of the blocks are not properly supported.
D. The retaining wall and some of the product was not
installed in accordance with the manufacturers'
specifications.
E. The electrical wiring for the lights was not
installed in conformance with the applicable
electrical code.
18. The reasonable cost to Plaintiffs to have the work
performed by Defendant brought into conformance with the contract
and applicable codes and specifications is $22,187.00.
COUNT I
BREACH OF CONTRACT
19. Paragraphs numbers 1 through 18 are herein incorporated
by reference.
20. By failing to perform the work in accordance with the terms
of the agreement and by failing to honor the guarantee, Defendant
has breached his agreement with Plaintiffs.
WHEREFORE, Plaintiffs demand judgment in their favor and
4
against Defendant for the damages described in this Complaint, and
for costs and interest.
COUNT II
CLAIM UNDER UNFAIR TRADE PRACTICES
AND CONSUMER PROTECTION LAW
21. Paragraphs 1 through 20 are incorporated herein by
reference.
22. By failing to perform the work in a workmanlike manner in
accordance to standard practice, Defendant engaged in an unfair or
deceptive act or practice under 73 P.S. 201-2(4)(xvi).
23. By failing to honor his written guarantee, Defendant
committed an unfair or deceptive act or practice under 73 P.S.
201-2 (4) (xiv) .
24. Defendant's unfair or deceptive acts or practices as
aforesaid violate 73 P.S. 201-3 and are unlawful.
25. Plaintiffs purchased the services from Defendant for
personal, family or household purposes and suffered a loss of money
as a result of the use by Defendant of a method, act or practice
declared unlawful by 73 P.S. 201-3.
26. Plaintiffs claim damages under 73 P.S. 201-9.2, as
described in this Complaint, and request an award of treble damages,
5
costs and reasonable attorney fees.
WHEREFORE, Plaintiffs demand judgment in their favor and
against Defendant for the damages described in this Complaint, treble
damages, costs, interest and attorney fees.
Respectfully submitted,
Date: ii
By:
uennls J. 5natto, E quire
PA Attorney ID #25/675
119 Locust Street
P. 0. Box 11847
Harrisburg, PA 17108-1847
(717) 238-1731
Attorney for Plaintiffs,
Kenneth A. Millage and
Janet E. Bex
VERIFICATION
I verify that the statements made in the foregoing document 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. Section 4904, relating to unsworn
falsification to authorities.
6
Q
KENNETH A. MILLAGE
DATE: L l af'ck y , 2008
i
t
1 ??i I' tgr \lo of
111 West Broad Street
Ehzabethville, PA 17023
PROPOSAL lSUBMITTED TO -- - ``-
- rJ iItc. _._ t?d? t 4_.E
CITY TATE and ZIP COD
ARCHITECT We hereby submit specifications and estimates for:
PHONE --
_ _ DATE -'-'- -
JOB NAME
JUB PHONE
---------- ---
q, A-
LAS
n1A
-?.
_ ---
___....._ .-«?......,,,.?:;. s :E:r;x'ka+i`?.<LkYLuif o?.9 ?; d.>3?ti'?536;??4`Yek ? iy;t",6"'?"3;?R'f?11?31.'??'S?'"?"?'.lle?€ a,S.'?°',+Aa?_.?,.?......_...._..- _`_
We Propose hereby to furnish material and labor - complete in accordance with above specifications fo the sum of:
?' y l ! f F . ¢'?f / 1. t.! :? tdlJ ;?? JJ f 11
nt. to be IS as follows: dollars ($
zi -j,
_ .. - r r .
All material is guaranteed to be as specified. All work to be completed in a workmanlike man-
ner according to standard practices. Any alteration or deviation from above specifications
involving extra costs will be executed only upon written orders, and will become an extra
charge over and above the estimate. All agreements contingent upon strikes, accidents or
delays beyond our control, Owner to carry fire, tornado and other necessary insurance. Our
workers are fully covered by Workman's Compensation Insurance.
Acceptance of Proposal- The above prices, specifications
and conditions are satisfactory and are hereby accepted. You are authorized to
do the work as specified. Payme t``\will be made as outlined abode.
Date of A?ceVance: .?V
Authorized
Signature L' ._. •G""_t_-? -
Note: This proposal may be
withdrawn by us it not accepted within -^) "?
Sir .nPUre
Signature
days.
Actions necessary to complete the front steps and walkway per the contract between Gray's
Landscaping and Ken Millage / Janet Bex signed July 20, 2006. All money due for the described
work in steps 1 - 9 has been paid by homeowners to Gray's Landscaping.
1. Stabilize walkway edges. Current construction allows for movement of many pavers
along the edges of the walkways. Observations indicate insufficient width of stone base
to provide adequate support and very narrow pavers on edges of walkways.
2. Replace narrow partial pavers along edges of walkways with larger pavers.
3. Stabilize edges of "turning landing" between steps leading from house and steps leading
to driveway. Inside turning radius is especially weak. Sharp drop from this edge of the
landing requires a wider stone base or a system to maintain positioning of stone base
under paving stones.
4. No stone base in which to nail plastic edging system at one point in walkway leading to
driveway. Add compacted stone to provide proper anchoring.
5. As necessary, provide support on outside of plastic edging system for added stability.
6. Reposition "circle" in the middle landing to center it within the landing or remove circle
and replace with standard block.
7. Add/compact grouting sand to walkways and landings to lock pavers in place once all
above work is completed.
8. Replace last capstone on the retaining wall (at end next to walkway) to conform to the
end of the wall.
9. Add stone under lowest step for support. No stone support exists under outside edge at
the back of the tread of this step.
Upon completion of above remediation work to the satisfaction of homeowners, Gray's
Landscaping will install railing on steps and upper two landings per contract at the contracted
price of $1,200.
All work to be completed to the satisfaction of homeowners, Ken Millage and Janet Bex within
one week of work commencing in March, 2007.
All work, materials and labor, is guaranteed for five years from the end of completed installation
as agreed at time of contract signing.
Ken Milla
ge
Date avid Gray Date
EXHIBIT
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2008-01673 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MILLAGE KENNETH A ET AL
VS
GRAY DAVID E
R. Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT to wit:
but was unable to locate Him in his bailiwick. He therefore
deputized the sheriff of DAUPHIN
serve the within COMPLAINT & NOTICE
County, Pennsylvania, to
On March 26th , 2008 this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs: So answers:
Docketing 18.00
Out of County 9.00 .?"
Surcharge 10.00 R. Thomas Kline
Dep Dauphin County 53.25 Sheriff of Cumberland County
Postage .97
03/26/2008
CLECKNER & FEAREN
Sworn and subscribe to before me
this day of ,
d/eca/V6 -+W' 1
A. D.
(ptltt.E of the hCrTft
Mary Jane Snyder
Real Estate Depu
William T. Tully
Solicitor
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 780-6590 fax: (717) 255-2889
Charles E. Sheaffer
Chief Deputy
Michael W. Rinehart
Assistant Chief Deputy
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
County of Dauphin
KENNETH MILLAGE, ET AL
VS
DAVID E GRAY
Sheriff s Return
No. 2008-T-0629
OTHER COUNTY NO. 08-1673
And now: MARCH 24, 2008 at 10:01:00 AM served the within COMPLAINT upon DAVID E
GRAY by personally handing to DAVID E GRAY 1 true attested copy of the original COMPLAINT
and making known to him/her the contents thereof at 111 WEST BROAD STREET
ELIZABETHVILLE PA 17023
Sworn and subscribed to
before me this 24TH day of March, 2008
A2???
NOTARIAL SEAL
ARY JANE SNYDER, Notary Publi
Highspire, Dauphin County
[My Commission Expires Set 1 2010
So Answers,
? (? ?Sheriff of D phin CtInt
By
Deputy heriDeputy: S WEVODAU
Sheriffs Costs: $53.25 3/20/2008
J.R. LOTWICK
SHERIFF OF DAUPHIN COUNTY
COUNTY OF DAUPHIN HARRISBURG, PA. OFFICAL RECEIPT
File # Case Number Document Type
2008-T-0629 COMPLAINT
Operator: 2555
Primary Defendant: DAVID E GRAY
Cash Accounting
Rec. Cat. Transaction Deposit Receipt Check From Amount
Date Type Type Number
3/20/2008 Deposit Civil Action- Check 08-14728 CUMBERLAND COUNTY $53.25
County Notice SHERIFF
Total Number of Rows: 1
Total Paid $53.25
IRECD. BY
3/20/2008 12:47:02 PM
In The Court of Common Plus of Cumberland County, Pennsylvania
Kenneth A. Millage et al
vs.
David E. Gray No. 08-1673 civil
Now, March -17, 2008 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriff of Dauphin County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
Affidavit of Service
Now,
within
upon
at
by handing to
a
and made known to
copy of the original
So answers,
Sheriff of
Sworn and subscribed before
me this day of , 20
COSTS
SERVICE _
MILEAGE _
AFFIDAVIT
20 , at o'clock M. served the
the contents thereof.
County, PA
??ti'P of ?Gum?,ert?
R. THOMAS KLINE
Sheriff
EDWARD L. SCHORPP
Solicitor
OFFICE OF THE SHERIFF
One Courthouse Square
Carlisle, Pennsylvania 17013
T0: Hon. Jack Lotwick
Dauphin County Sheriff
Dear Sir:
Kenneth A. Millage et al
RE:. VS
David E. Gray,
08-1673 civil
Enclosed please find Notice and Ccmplaint
to be served upon David E. Gray
111 West Broad Sreet
Elizabethville, PA 17023
in your County.
Kindly make service thereof and send us your return of service.
Enclosed is the advance payment which you requested.
Very truly yours,
R. Thomas Kline, Sheriff
Cumberland County, Pennsylvania
RONNY R. ANDERSON
Chief Deputy
JODY S. SMITH
Real Estate Deputy
Enclosures:
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
KENNETH A. MILLAGE and I No. 08-1673 Civil Term
JANET E. REX,
V.
DAVID E. GRAY,
Plaintiffs
Defendant
Jury Trial Demanded
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE
CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN
TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY
ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Lawyer Referral Service of
The Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania 17013
Telephone: 717 249-3166 or 1-800-990-9108
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Lawyer Referral Service of
The Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania 17013
Telephone: 717 249-3166 or 1-800-990-9108
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
KENNETH A. MILLAGE and
JANET E. REX,
Plaintiffs
V.
DAVID E. GRAY,
No. 08-1673 Civil Term
Jury Trial Demanded
AVISO
USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las
quejas expuestas en las paginas siguientes, debe tomar acci6n dentro de veinte (20) dias a partir
de la fecha en que recibi6 la demanda y el aviso. Usted debe presentar comparecencia escrita en
persona o por abogado y presentar en la Corte por escrito sus defensas o sus objeciones a las
demandas en su contra.
Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede
decidir en su contra sin mas aviso o notificaci6n por cualquier dinero reclamado en la demanda o
por cualquier otra queja o compensaci6n reclamados por el Demandante. USTED PUEDE
PERDER DINERO, O PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA
USTED.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI USTED NO
TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA
DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER
ASISTENCIA LEGAL.
Lawyer Referral Service of
The Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania 17013
Telephone: 717 249-3166 or 1-800-990-9108
SI USTED NO PUEDE PARARLE A UN ABOGADO, ESTA OFICINA PUEDE
PROVEERE INFORMACION ACERCA AGENCIAS QUE PUEDAN OFRECER SERVICIOS
LEGAL A PERSONAS ELIGIBLE AQ UN HONORARIO REDUCIDO O GRATIS.
Lawyer Referral Service of
The Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania 17013
Telephone: 717 249-3166 or 1-800-990-9108
II
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
KENNETH A. MILLAGE and
JANET E. REX,
V.
DAVID E. GRAY,
No. 08-1673 Civil Term
Jury Trial Demanded
Plaintiffs
Defendant
ANSWER, NEW MATTER AND COUNTERCLAIM
Defendant, David E. Gray, by and through his undersigned counsel, files the following
Answer with New Matter and Counterclaim to Plaintiffs' Complaint:
ANSWER
I . Admitted on information and belief.
2. Admitted.
3. Admitted in part; denied in part. It is admitted that on or about July 20, 2006,
Plaintiffs accepted Defendant's proposal to perform certain work at Defendants' home. The
proposal is a writing which speaks for itself. In further response, the parties agreed that certain
work to be done would be done on a time and materials basis.
4. Admitted.
5. Denied as stated. The proposal is a writing which speaks for itself. In further
response, Defendant performed the work in a workmanlike manner according to standard
practices.
1
6. Denied. To the contrary, all work performed by Defendant was performed in a
workmanlike manner according to standard practices.
7. Denied as stated. Defendant agreed to perform certain remedial work for
Plaintiffs. Exhibit B is a writing which speaks for itself.
8. Denied as stated. Exhibit B is a writing which speaks for itself.
9. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth of the averments of paragraph 9; the same
are therefore denied and proof is hereby demanded.
10. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth of the averments of paragraph 10; the same
are therefore denied and proof is hereby demanded.
11. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth of the averments of paragraph 11; the same
are therefore denied and proof is hereby demanded.
12. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth of the averments of paragraph 12; the same
are therefore denied and proof is hereby demanded.
13. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth of the averments of paragraph 13; the same
are therefore denied and proof is hereby demanded.
2
14. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth of the averments of paragraph 14; the same
are therefore denied and proof is hereby demanded.
15. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth of the averments of paragraph 15; the same
are therefore denied and proof is hereby demanded.
16. Denied as stated. In late May 2007, Plaintiffs refused to permit Defendant's
employees onto the premises to do any remedial work.
17. Denied. To the extent the averments of paragraph 17 constitute conclusions of
law, no response is required. It is specifically denied that any work performed by Defendant was
not done according to standard practice or was in violation of any International Residential Code
or was contrary to manufacturers' specifications. It is specifically denied that the electrical
wiring was not installed in conformance with applicable electrical code. To the contrary, the
work performed by Defendant met standard construction practice and complied with relevant
building codes.
18. Denied. It is specifically denied that any work performed by Defendant was not
done according to standard practice or was in violation of any International Residential Code or
was contrary to manufacturers' specifications. It is specifically denied that the electrical wiring
was not installed in conformance with applicable electrical code. To the contrary, the work
performed by Defendant met standard construction practice and complied with relevant building
codes. It is specifically denied that the reasonable cost to have Defendant's work brought into
3
conformance and applicable codes is $22,187, inasmuch as the work currently meets industry
standards and applicable codes.
Count I
Breach of Contract
19. Defendant incorporates by reference paragraphs 1 through 18 above.
20. Denied. The averments of paragraph 20 constitute conclusions of law to which no
response is required.
WHEREFORE, Defendant demands judgment in his favor and against Plaintiffs.
Count II
Claim under Unfair Trade Practices
and Consumer Protection Law
21. Defendant incorporates by reference paragraphs 1 through 20 above.
22. Denied. To the extent the averments of paragraph 22 constitute conclusions of
law, no response is required. It is specifically denied that the work performed by Defendant was
not done in a workmanlike manner in accordance with standard practice, and to the contrary it is
averred that Defendant's work was good and workmanlike and conformed to standard building
practices.
23. Denied. The averments of paragraph 23 constitute conclusions of law to which no
response is required. Further, Defendant has fulfilled his obligations under the parties'
agreement.
24. Denied. To the extent the averments of paragraph 24 constitute conclusions of
law, no response is required. It is specifically denied that any act of Defendant was unfair or
deceptive, and to the contrary it is averred that Defendant at all times acted in a reasonable
manner.
4
25. Denied. The averments of paragraph 25 constitute conclusions of law to which no
response is required. Further, it is denied that Plaintiffs suffered a loss of money as a result of
any act or practice of Defendant, and to the contrary it is averred that Defendant at all times
acted in a reasonable manner and the work performed was done in accordance with industry
standards and good construction practices.
26. Denied. The averments of paragraph 26 constitute conclusions of law to which no
response is required.
WHEREFORE, Defendant demands judgment in his favor and against Plaintiffs.
NEW MATTER
27. Prior to the start of the project as described in Defendant's proposal, Defendant
recommended that he prepare and submit a formal design plan for their approval, but Plaintiffs
refused this recommendation.
28. Plaintiffs continually changed the plan during construction.
29. Plaintiffs specifically required Defendant to move the sidewalk after it was
installed.
30. Any delays in the construction were due to weather constraints.
31. Inherent problems existed in the project due to the location of the installation of
the steps and sidewalk.
32. Plaintiffs' claims are limited or barred by superseding intervening causes beyond
the control of Defendant.
33. Plaintiffs' claims are limited or barred by their failure to mitigate their damages.
5
34. Defendant supplied the aluminum porch railing, top soil and lawn seeding, for
which he has not been paid.
35. Plaintiffs' claims are limited by Defendant's right to a set-off.
36. All work performed by Defendant was in accordance with good construction
practice.
37. All work performed by Defendant conformed to applicable building codes.
38. Defendant fulfilled his obligations to Plaintiffs pursuant to the parties' agreement.
39. Plaintiffs' claims are barred by their unclean hands.
40. Plaintiffs have failed to establish a basis upon which Defendant can be held liable
for the amount claimed of $22,187.
41. Plaintiffs have failed to establish a claim for breach of contract.
42. Plaintiffs have failed to establish a claim under the Unfair Trade Practice and
Consumer Protection Law.
WHEREFORE, Defendant demands judgment in his favor and against Plaintiffs.
COUNTERCLAIM
43. Counterclaim Plaintiff is David Gray, doing business as Gray's Landscaping,
Contracting & Excavating (hereinafter Gray).
44. Counterclaim Defendants are Kenneth A. Millage and Janet E. Bex (hereinafter
Millage).
45. Gray furnished the porch railing for the Millage home, at a cost of $1,200, for
which he has not been paid.
6
46. Gray furnished the labor and material to replace top soil and seed the lawn where
excavation took place, at a cost of $2,500, for which he has not been paid.
47. Although Millage had agreed to pay for the railing and the lawn repair, they have
failed and refused to do so.
WHEREFORE, David Gray, doing business as Gray's Landscaping, Contracting &
Excavating, demands judgment in his favor and against Kenneth A. Millage and Janet E. Bex in
the amount of $3,700, plus interest and costs of suit.
BARLEY SNYDER LLC
By. S
Sean E. ummers
Court I.D. 92141
100 East Market Street
P.O. Box 15012
York, PA 17405-7012
717.846.8888
Attorneys for David Gray
7
VERIFICATION
I, David dray, hereby vetify that the facts set forth in the foregoing Answer, New Matter
and cowtteruiaim arc true and comet to the best of my knowledge, information and belief I
tmdetstmd that false statements herein are made subject to the penalties of I8 Pa.C.S,A, §4904
relating to unswom falsification to authorities.
Dated:
4vid Grayy
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Answer, New Matter and
Counterclaim is being served on this date by first class mail, postage prepaid, at York,
Pennsylvania, addressed as follows:
Dennis J. Shatto, Esq.
119 Locust Street
PO Box 11847
Harrisburg, PA 17108-1847
BARLEY SNYDER LLC
By: (Az _-,k ( -- S - Sean E. Summers
Court T.D. 92141
100 East Market Street
P.O. Box 15012
York, PA 17405-7012
717.846.8888
Attorneys for David Gray
Date: April 15, 2008
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KENNETH A. NILLAGE and
JANET E. BEX,
Plaintiffs
vs.
DAVID E. GRAY,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 08-1673 CIVIL TERM
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
REPLY TO NEW MATTER AND COUNTERCLAIM
AND NOW, come the Plaintiffs, by and through their attorneys,
Cleckner and Fearen, and reply to the New Matter and Counterclaim
as follows:
Reply to New Matter
27. Denied. It is denied that Defendant ever recommended
that Defendant prepare a formal design plan for Plaintiffs'
approval. On the contrary, Plaintiff Janet Bex requested that
Defendant prepare a formal plan, but Defendant responded that it
was not necessary. Plaintiffs provided Defendant with a sketch,
and Defendant made his own drawing.
28. Denied. It is denied that Plaintiffs continually changed
any plan during the construction. By way of further answer, when
the installation was not being done consistent with the design
agreed upon, Plaintiffs requested that the Defendant make the
necessary corrections.
29. Denied. It is denied that Plaintiffs required Defendant
to move the sidewalk after it was installed. Defendant dug a
portion of the sidewalk at a location inconsistent with the agreed
upon design, and Plaintiffs requested that Defendant correct his
error.
30. Denied. It is denied that any delays in the construction
were due to weather constraints. Time lost due to poor weather was
not substantial during the timeframe of the construction activity.
31. Denied as irrelevant. By way of further answer,
Defendant represented to Plantiffs that he was a professional with
20 years of experience and does projects similar to the Plaintiffs,
project on a regular basis.
32. The statement of paragraph 32 appears to be in the nature
of a legal conclusion to which no response is required. In any
event, Plaintiffs deny that there were any superseding intervening
causes beyond the control of Defendant.
33. The statement of paragraph 33 appears to be in the nature
of a legal conclusion to which no response is required. By way of
further answer, it is denied that ..Plaintiffs have failed in any
respect to mitigate their damages.
34. Admitted in part and denied in part. It is admitted that
Defendant supplied top soil and seeded the lawn. It is denied that
Defendant supplied the aluminum porch railing. It is admitted that
Defendant has not been paid for the aluminum porch railing which
has never been provided to Plaintiffs. It is denied that Defendant
has not been paid for top soil and lawn seeding on the basis that
those items were included in the contract price. Moreover,
2
Defendant never sent Plaintiffs an invoice for the top soil and
lawn seeding.
35. The statement of paragraph 35 is a legal conclusion to
which no response is required. By way of further answer, Defendant
has no right to a set-off.
36. Denied. It is denied that Defendant's work was in
accordance with good construction practice. By way of further
answer, paragraphs 6, 7, 12, 17 and 18 of the Complaint are
restated herein..
37. Denied. It is denied that all work performed by
Defendant conformed to applicable building codes. By way of
further answer, paragraphs 6, 7, 12, 17 and 18 of the Complaint are
restated herein.
38. Denied. It is denied that Defendant fulfilled his
obligations to Plantiffs pursuant to the parties' agreement. The
Complaint was filed by Plaintiffs because Defendant failed to
fulfill his obligations pursuant to Exhibits A and B of Complaint.
39. Denied. The statement of paragraph 39 is the nature of
a legal conclusion to which no response is required.
40. Denied. The statement of paragraph 40 is in the nature
of a legal conclusion to which no response is required. By way of
further answer, the allegations of the Complaint, and particularly
paragraph 18 thereof, are incorporated herein by reference.
41. Denied. The statement of paragraph 41 is in the nature
of a legal conclusion to which,no response is required. By way of
3
further answer, the averments of the Complaint are incorporated
herein by reference.
42. Denied. The statement of paragraph 42 is in the nature
of a legal conclusion to which no response is required. By way of
further answer, the averments of the Complaint are incorporated
herein by reference.
WHEREFORE, Plaintiffs demand judgment in their favor and
against Defendant, as set forth in the Complaint.
Reply to Counterclaim
43. It is admitted only that Counterclaim Plaintiff is the
same as the Defendant in the Complaint.
44. Admitted.
45. Denied. It is denied that Gray furnished the porch
railing for the Millage home at a cost of $1,200. By way of
further answer, it is averred that the porch railing has never been
provided to Counterclaim Defendants.
46. Admitted in part and denied in part. It is admitted that
Gray furnished the labor and material to restore the excavated area
to its pre-construction condition. It is admitted that as part of
this effort, Gray provided top soil and seeded the lawn area. It
is denied that.the cost of such work is $2,500, and it is further
denied that Gray has not been paid for said labor and materials.
By way of further answer, it is averred that Gray never told
Plaintiffs he intended to bill f.or such work, and never sent an
invoice. In fact, Gray specifically told Counterclaim Defendant
4
Kenneth Millage that he would not charge for the top soil and
reseeding.
47. Admitted in part and denied in part. It is admitted that
Millage agreed to pay for the work described in Exhibit A to the
Complaint, and agreed to pay for the railing upon completion of the
remediation work and the railing installation as set forth in
Exhibit B to the Complaint. It is denied that the railing was
provided to Counterclaim Defendants or installed on their property.
The lawn repair was included as part of the contract price, which
has been paid to Counterclaim Plaintiff.
WHEREFORE, Counterclaim Defendants demand judgment in their
favor and against Counterclaim Plaintiff.
Date ;
CLECKNER AND FEAREN
By: - X",
Dennis J. Shatto, Esquire
PA Attorney ID #25675
119 Locust Street
P. O. Box 11847
Harrisburg, PA 17108-1847
(717) 238-1731
Attorneys for Kenneth A. Millage
and Janet E. Bex
5
VERIFICATION
I verify that the statements made in the foregoing document 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. Section 4904, relating to unsworn
falsification to authorities.
KENNETH A. MILLAGE
DATE: AAril 3d 2008
7
CERTIFICATE OF SERVICE
I, DENNIS J. SHATTO, hereby certify that I served a true and
correct copy of the foregoing document upon the person (s) indicated
below, by depositing same in the United States mail, postage
prepaid at Harrisburg, Dauphin County, Pennsylvania, this 1st day
of May, 2008.
Sean E. Summers, Esquire
BARLEY SNYDER LLC
100 East Market Street
P. 0. Box 15012
York, PA 17405-7012
CLECKNER AND FEAREN
By
Dennis J. Shatto,, Esquire
PA Attorney ID #25675
119 Locust Street
P.O. Box 11847
Harrisburg, PA 17108-1847
(717) 238-1731
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