HomeMy WebLinkAbout04-1496STAN and MARY NYE,
Plaintiffs
v
JOSEPH RUDA, t/d/b/a CLEAR BLUE
POOLS
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO.
NOTICE
oy- iti4? ?;4e- I-^
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the
following Complaint, 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 ajudgment 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 South Bedford Street
Carlisle, PA 17013
Phone: (717) 249-3166
AMERICANS WITH DISABILITIES ACT OF 1990
The Court of Common Pleas of Cumberland County is required by law to comply with the
Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable
accommodations available to disabled individuals having business before the court, please contact our
office. All arrangements must be made at least 72 hours prior to any hearing or business before the court.
You must attend the scheduled conference or hearing.
STAN and MARY NYE, : IN THE COURT OF COMMON PLEAS OF
Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
V.
:NO.: 0y- /t{96
JOSEPH RUDA, t/d/b/a CLEAR BLUE
POOLS,
Defendant
COMPLAINT
AND NOW, comes Stan and Mary Nye, Plaintiffs, by and through their privately
retained attorney, Karl E. Rominger, Esquire and in support of their Complaint avers as follows:
1. Plaintiffs are adult individuals with a principal address of 1083 Centerville Road,
Newville, Pennsylvania.
2. The Defendant is an adult individual whose principal address is believed to be 65
Derbyshire Drive, Carlisle, Pennsylvania.
3. On or around February 3, 2003, Defendant installed a pool for Plaintiffs.
4. Plaintiffs paid the Defendant approximately $12,000.00 for the project and Defendant
never finished the job.
5. Defendant's workmanship was shoddy and incompetent.
6. The liner of the pool was put in backwards and was not measured correctly and
subsequently is tearing away from the steps.
7. Plaintiffs received an estimate of between $4,000.00 and $5,000.00 to repair the
damage, possibly much more.
COUNT I. BREACH OF CONTRACT
8. Previous paragraphs are incorporated by reference as if more fully set out herein.
9. There is a valid written contract between the parties. Attached as Exhibit "A"
10. Defendant refused to perform under the contract.
11. The failure of Defendant to complete the job has cost the Plaintiffs enormous
amounts of money.
12. Plaintiffs believe and therefore aver that Defendant breached the contract.
13. Plaintiffs had substantially performed under the contract by providing the $12,000.00
down payment.
WHEREFORE, Defendant respectfully requests that this Honorable Court award them
liquidated damages in an amount of $12,000.00, as well as costs, interest and attorney fees.
COUNT II. UNJUST ENRICHMENT
14. Previous paragraphs are incorporated by reference.
15. Plaintiffs provided Defendant with $12,000.00.
16. Defendant has essentially left Plaintiffs without any substantial asset in exchange for
said money.
17. In fact, the pool built by Defendant is so defective and as such is essentially
worthless.
18. Defendant has thus been unjustly enriched in the amount of $12,000.00
WHERFORE, Plaintiffs respectfully request that this Honorable Court award them
damages in a liquidated amount of $12,000.00.
Date: y `0 y Respectfully submitted,
ROMINGER & BAYLEY & WHARE
Karl E. Roinmger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Plaintiffs
CONTRACT OF SALE - RESIDENTIAL
SWIMMING POOL AND ACCESSORIES
AQUA BLUE POOLS
cit-.lu MW Doubling Gap Rd.
Newville, PA 17241
(1717) 776-4593 /?
I ' DATE .,
?q ` 1 /? 19-/
BUYER te1€ q 0,,lb/fM {??r^ Oct 4, 777k_ Y77
NA"'tlfeeeiii€€€ pp A DRESS D / Q ppP// NE NUMBER
SELLERL` V ll? ?? C?l??C'/v, 4IO(>?'7p
"( c
NA ADDRESS PHONE NUMBER
BUYER agrees to purchase and SELLER agrees to sell the following swimming pool materials, equipment and accessories upon
the terms and conditions stated herein.
PRICE
POOL MODEL C r-kl nG 1 SIZE ! 7 x a 6 , ?? 5'Q
CLASS' DEPTH ?o
FILTER An
y
ACCESSORIES
71? 0o
u? yro? ?- +r?Nr a'56-J9 0
- (o .rte ?^ ,.?.? 0
q -?
L'rr I(C A /V?("
(Zee. a. Q, 6 o
additional concrete, if desired will be billed at j Ioj SUB TOTAL
per sq. foot TAX p?lG? 0/
INSTALLATION TERMS
DEPOSIT ............................................................................................. 10% TOTAL I71U?? (? ??? )
KIT DELIVERY ..................................................................................... 40°/,
DEPOSIT L '
WALL PLACEMENT ............................................................................ 40%
COMPLETION ..................................................................................... 10% BALANCE
INSTALLATIO (IS) (IS NOT) INCLUDED I
"?- NO INSTALLATION TERMS
INSTALLATION SITE
Deposit - On Signing
I '71:d3 n. CU Balance - On Delivery
BUYER ACKNOWLEDGES THAT 4 HAS READ A D NDER TANDS THE TERMS AND CONDITIONS OF THIS AGREEMENT
INCLUDING THOSE WHICH FOLLOW THE SIGNATURES ON THE REVERSE SIDE.
'CLASS I - These pools are designed to conform with the N.S.P.I. configuration in effect January 1, 1972. Diving equipment cannot
be used with these pools.
'CLASS II and ABOVE - These pools are designed to conform with N.S.P.I. configuration in effect January 1, 1972, for use with diving
equipment. ^ i
SELLER 1 ? / r - ? L• ?'??r:.. y -. ?.r. .' 1.
BUYER
BUYER
"NOTE: Buyer is responsible for filling of the pool which includes water and water delivery.
Buyer is responsible for electrical hook up of light and pump.
If we strike subsurface water, rock, or sink hole, buyer Is responsible for cost of labor and materials involved in controlling the
water, for removal of rock, for repair or moving of pool site. 'Z
7 j j 1
LINER PATTERN
x %6;
ADDITIONAL TERMS AND CONDITIONS OF THIS AGREEMENT
1. SELLER'S OBLIGATION:
A. The Seller agrees that he shall completely install the swimming pool materials, equipment and accessories according to this contract. The following shall constitute
complete Installation: excavation of pool site, remove excess fill, erect panels, supply and level pool base. Install liner and fill with water, install inlets and outlet fillings,
connect all plumbing lines from pool to filter, assemble pump valves and connect the filter tank, install coping, back fill and rough grade within four feet around pool, test
pool water for water circulation and skimmer operation, Install accessories according to those purchased under this contract.
B. If Buyer requests Seller to perform additional work and if Seller Is willing to perform the additional work, the Buyer agrees to pay the Seller for the additional work as
follows: (1) The Seller's actual cost of subcontract, labor, materials, and equipment; (2) The payroll taxes and insurance on all labor, (3) Sales lax on all materials and
equipment; (4) Supervision; (5) Twenty-live percent for Seller's overhead and profit. All monies for additional work shall be due and payable as the work progresses
concurrently with the other progress payments. Additional work shall Include but is not limited to (a) any modification requested by the Buyer; (b) removal or rerouting of
subsurface pipes and conduits, such as sprinkler lines, water and sewage disposal systems, buried electrical cable, telephone cables, etc., encountered In Installation; (c)
work required as a result of nonapparent or subsurface ground conditions such as ground water, hard pan, shale, rock, or other like material or conditions encountered in
installation which requires the use of equipment other than ordinary hand tools and power excavation equipment such as tracsbr-type backhoes; (d) any electrical work
required. q
C. WARRANTIES. Seller warrants the Installation to be free of defects in workmanship for a period of one year from Installation: The Seller makes no other warranty,
express or Implied, including without limitation any warranty of merchantability or fitness for a particular purpose. Swimming pool materials, equipment and accessories
covered by this agreement carry the manufacturer's warranty only.
IL BUYER'S OBLIGATIONS:
A. SECURITY INTEREST. Seller retains title to and has a purchase money security Interest in the materials, equipment and accessories covered by this agreement
(hereafter 'collateral'). Buyer represents and warrants that the collateral Is purchased and is to be used primarily for personal, family or household purposes. Buyer also
agrees that In whatever manner the collateral shall become attached to real estate it shall not become a fixture or part of real estate but shall be and remain personal
property. Buyer shall not offer to sell, transfer, abandon or encumber the collateral or the premises to which same may become attached nor remove the collateral from said
premises without the prior consent of the Seller.
B. BUYER DEFAULT. Buyer shall be in default upon the happening of any of the following events, (a) noncompliance with or nonperformance of any of the Buyer's
obligations or agreements including without limitation the failure to punctually make payments as provided herein, (b) misrepresentation or misstatement in connection with
this agreement, (c) substantial damage, destruction, sale or encumbrance of or to the collateral or the premises to which same may become attached or the making of any
levy, seizure or attachment thereof or thereon, (d) death or insolvency of assignment for benefit of creditors by or the commencement of any proceeding under any
bankruptcy or insolvency law by or against Buyer, (e) such a change In the condition or affairs, financial or otherwise, of the Buyer as in the good faith judgment of the
Seller impairs his security or increases his risk.
C. SELLER RIGHTS & REMEDIES ON BUYER DEFAULT. Upon default of the Buyer, In addition to any other rights or remedies provided by law, Seller may exercise
the rights and remedies of a secured party under the Uniform Commercial Code, Including but not limited to the right, without legal process, to enter the premises where the
collateral may be found and repossess same. Should the Buyer, prior to commencement of installation or If Installation Is. not included, then prior to delivery ehher cancel
this agreement or become unable for any reason to perform same, Seller may at his option recover from the Buyer as liquidated damages his actual costs Incurred plus any
deposit made hereunder. No waiver by the Seller shall operate as a waiver of any other or future default. In the event this agreement shall be placed with an attorney for
collection, Buyer agrees to pay all costs of collection including reasonable attorney's fees.
D. ADDITIONAL TERMS & CONDITIONS. It is understood and agreed that the terms and conditions of this agreement which relate solely to Installation shall only
apply where installation is included. No waiver or modification shall be effective unless In writing. The terms 'Buyer' and 'Seller' include the heirs, executors,
administrators. successors and assigns of those parties. If more than one Buyer executes this agreement, their undertaking shall be joint and several.
E. The Buyer expressly agrees and consents to provide the Seller with his full cooperation In the carrying out of this contract. The Buyer further agrees that in the event
he wishes additional work be done he will sign an extra work older to be pail according to 1. B. as outlined above. The Buyer by his signature being on the front side hereby
expressly agrees and consents to provide the Seller with Ingress and egress to the pool site and hereby holds the Seller harmless for reasonable damage to any lawn,
shrubs and flowers for the above said ingress and egress. The Buyer further hereby expressly agrees not to hinder the progress of the work in any manner including but not
limited to performing any work on the pool while the Seller is installing his material and equipment, by not interfering in any manner with the workmen of the Seller and by
making payments punctually as requested by the Seller.
F. The Buyer hereby agrees and understands that the pool that is constructed using the vinyl liner may be punctured and in the event said liner is so punctured due to
no fault or the Seller, the Buyer hereby expressly waives any claim against the Seller or the manufacturer due to any puncture that might accur due to no fault of the Seller
or manufacturer.
III. OTHER TERMS AND CONDITIONS:
A. GENERALLY. Buyer shall furnish building permit, electricity, water, additional fill if required, electrical connections and all electrical work. Buyer accepts
responsibility regarding these Items.
B. SITE PREPARATION & RESTORATION. Buyer shall be responsible for site preparation including removal and/or protection of trees or other vegetation and
removal of pipe lines or other improvements affected by the installation and shall be responsible for any landscaping or restoration of the grounds except as expressly
stated herein.
C. ACCESS TO WORK AREA. Buyer shall furnish access to work area and at the request of the Seller shall obtain permission from owners of adjacent properties for
entry upon their properties in connection with installation. Buyer accepts responsibility for claims or damage to existing driveways, lawns, flowers, shrubs, trees or other
property by reason or installation whether they be those of the Buyer or of adjacent property owners.
D. POOL LOCATION. Buyer shall Indicate the exact pool location and accepts responsibility for the site being within his property lines and clear of set-back lines or
any other restrictions whether by zoning, dead or otherwise. Buyer also represents and warrants that he is the owner of the property on which Installation is to be made.
E. SUB-SURFACE PIPES & CONDUITS. Buyer shall locate sub-surface pipes and conduits such as sprinkler lines, water or sewage disposal systems and buried
electrical or telephone cables. Buyer accepts responsibility for claims or damage by reason of these Items being encountered in installation.
F. NONAPPARENT & SUB-SURFACE GROUND CONDITIONS. Buyer accepts responsibility for claims or damage by reason of nonapparent and subsurface ground
conditions such as ground water, hardpan, shale, rock or other like material encountered in installation.
G. UNAVOIDABLE DELAYS. Buyer agrees that delays due to strikes, accidents or other matters beyond the control of the Seller shall not constitute a breach by the
Seller and shall not excuse the Buyer from performing his obligations or agreements.
H. OTHER OBLIGATIONS. Buyer accepts responsibility for claims or damage by reason of soil slippage, surface water run-off, fire, flood, rain, stone, earthquake or
other Acts of God or as a result of any acts of the Buyer including without limitation emptying of pool other than as in Instructions provided.
1. INDEMNIFICATION. Buyer agrees to indemnity and hold Seller harmless from any claims or damage by reason of the Buyer's failure to fully perform his obligations
and agreements.
J. ATTORNEY'S FEES. It is hereby expressly agreed and understood that in the event the Buyer does not pay the Seller as agreed on the front side of this agreement,
the Buyer will pay all reasonable and necessary attorney's fees and court costs due to nonpayment of the above-said money.
K. It Is hereby expressly understood that the laws of the State of Pennsylvania will be applicable to this contract.
L. The Sellers failure to insist upon strict performance of any provision of this agreement shall not be deemed to be a waiver of the Seller's rights or remedies, or a
waiver by the Seller of any subsequent default by the Buyer in the performance of or compliance with any of the terms of this agreement.
M. This Instrument contains the entire agreement between the patties and there are no representation, understandings, or agreements, oral or written, which are not
included herein. The Seller's failure to exercise any rights hereunder, or to take any action permitted on a breach of the Buyer, shall not be deemed a waiver thereof or of
other rights or breaches of a like or different nature. No waiver shall be effective unless specifically made In writing, and signed by a duly authorized representative of the
party making such waiver. This agreement cannot be changed except by the duly authorized representatives of both parties in writing.
N. Periodic payments and/or final payments as outlined on the front side of this contract are to be paid when, in the opinion of the Seller, the work Is finished or has
reached the stage of completion when payment is due.
O. Seller does no landscaping, replacement of grass, sod or other gardening around work area, including filling of ruts caused by the movement of machinery.
P. Seller does not remove trees or their remains from buyers property.
0. Seller is not responsible for the appearance of red clay around work site.
R. Seller is not responsible for erosion of soil from beneath decks. It is the responsibility of the buyer to provide sod, gravel, or other retainers to prevent this.
S. Seller is not responsible for damage to the pool or any stains on decks, diving boards, patios, steps, ladders or liners caused by children, pets, or other forces
beyond sellers control. This will include vandalism during construction, Including the Introduction of dirt or other foreign material into pool. Seller will be re-imbursed at the
rate of $200.00 per day plus materials for each trip to pool to repair or clean up the results of such vandalism.
T. Buyer shall not attempt to operate the pump, filter, light, vacuum system or any other function or the pool, including the diving board until work is declared complete
by Seller. Buyer shall be responsible for costs incurred in repairing such damage as might be caused by unauthorized operation of any of the above mentioned systems by
persons not employed by seller.
U. Minor pattern variations In vinyl liners are commonplace and shall not constitute reason to replace liner.
V. The 10% deposit paid by buyer is not refundable once kit has been purchased.
W. The concrete deck is not a part of pool and is not guaranteed under any circumstances against cracking or settling. Footprints or other marks caused by pets or
persons not employed by seller shall be repaired only at buyers expense.
X. All dimensions stated regarding pool or concrete deck or walkways, patios, etc. are approximate.
Y. Any vandalism or theft caused by persons not employed by seller to pool, materials, equipment, tools, or other property belonging to seller during construction perked
shall be the responsibility of buyer. Buyer agrees to reimburse seller for damages to any of these items while on buyers property, whether occuring during the work day or
after working hours.
Z. It shall be the responsibility of buyer to keep people out of pool until work Is declared complete and pool is turned over to buyer. Any additional clean-up required due
to unauthorized entry into pool shall be paid by buyer at the rate of $200.00 per day plus materials.
4
v ?' Gn
SHERIFF'S RETURN - REGULAR
CASE NO: 2004-01496 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
NYE STAN ET AL
VS
RUDA JOSEPH T/D/B/A CLEAR BLUE
CPL. MICHAEL BARRICK
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
RUDA JOSPEH T/D/B/A CLEAR BLUE POOLS the
DEFENDANT , at 2011:00 HOURS, on the 8th day of April 2004
at 65 DERBYSHIRE DRIVE
CARLISLE, PA 17013 by handing to
JOSEPH RUDA
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 3.45
Affidavit .00
Surcharge 10.00
.00
31.45
Sworn and Subscribed to before
me//l 0 'this 15 ? day of
0 a2?9t?I y A.D.
rothonotary
So Answers.:
R. Thomas Kline
04/12/2004
ROMINGER & BAYLEY
By:
??z?Teputy
SPrerYff ~-
vs.
S 9l
In the Court of Common Pleas of
Cumberland County, Pennsylvania
No. 0 °/ - /,-/ '7G Civil. 19
Prothonotary
To reYe-+'?r7 2la-` 20e-5-
19
_ I /l ? N. ,1 / C LI N 4 A !?t
Attorney for Plaintiff
No. Term, 19
vs.
PRAECIPE
Filed
19
Atty.
??v
To: Plaintiffs
STAN and MARY NYE,
Plaintiffs
V.
JOSEPH RUDA, t/d/b/a CLEAR BLUE
POOLS,
Defendant
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.
/
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION LAW
NO. 04-1496
Answering Defendant, Joseph Ruda, t/dfb/a/ Clear Blue Pools, (hereinafter
"Answering Defendant'), by and through his attorney, John J. Mangan, hereby files his
Answer with New Matter and Counterclaim to the Complaint of Stan and Mary Nye,
(hereinafter "Plaintiffs") and in support thereof avers as follows:
1. Denied. After reasonable investigation, defendant is without sufficient
knowledge or information to form a belief as to the truth of the averments contained in
the corresponding paragraph and strict proof thereof is demanded at the time of trial.
2. Admitted in part; denied in the remainder. It is admitted that defendant Joseph
Ruda is an adult individual whose residential address is 65 Derbyshire Drive, Carlisle,
PA 17013; however it is denied that his pool installation entity conducts its business at
said address.
3. Admitted.
4. Denied. The averments in this paragraph are conclusions of law to which no
response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are
deemed denied. Alternatively, to the extent that a response is required, Answering
Defendant specifically denies that Plaintiffs paid Answering Defendant approximately
$12,000.00 for the project.
5. Denied. The averments in this paragraph are conclusions of law to which no
response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are
deemed denied. To the extent that a responsive pleading may be deemed required by the
Court, Answering Defendant denies that the workmanship was shoddy and incompetent;
rather, Answering Defendant rendered all services in a proper, professional and
workmanlike manner, and that nothing that Answering Defendant did or failed to do
caused or contributed to Plaintiffs alleged damages.
6. Denied. The averments in this paragraph are conclusions of law to which no
response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are
deemed denied. To the extent that a responsive pleading may be deemed required by the
Court, Answering Defendant denies that the liner of the pool was put in backwards and
was not measured correctly. Answering Defendant further responds that after reasonable
investigation, he is without knowledge or information sufficient to form a belief as to
whether the liner is subsequently tearing away from the steps. Answering Defendant
rendered all services in a proper, professional and workmanlike manner, and that nothing
that Answering Defendant did or failed to do caused or contributed to Plaintiff's alleged
damages.
7. Denied. After reasonable investigation, defendant is without sufficient.
knowledge or information to form a belief as to the truth of the averments contained in
the corresponding paragraph and strict proof thereof is demanded at the time of trial.
Count I. Breach of Contract
8. Answering Defendant hereby incorporates his responses to paragraphs 1 through
7 of the Complaint as fully as if the same were set forth at length herein.
9. Denied. The averments in this paragraph are conclusions of law to which no
response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are
deemed denied.
10. Denied. The averments in this paragraph are conclusions of law to which no
response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are
deemed denied. To the extent that a responsive pleading may be deemed required by the
Court, Answering Defendant denies that he refused to perform under the alleged contract.
Answering Defendant rendered all services in a proper, professional and workmanlike
manner, and that nothing that Answering Defendant did or failed to do caused or
contributed to Plaintiffs alleged damages.
11. Denied. The averments in this paragraph are conclusions of law to which no
response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are
deemed denied. To the extent that a responsive pleading may be deemed required by the
Court, Answering Defendant denies that he failed to complete the job. Answering
Defendant further responds that after reasonable investigation, he is without knowledge
or information sufficient to form a belief as to whether Plaintiffs have expended
"enormous amount of money" and strict proof thereof is demanded at trial. Answering
Defendant rendered all services in a proper, professional and workmanlike manner, and
that nothing that Answering Defendant did or failed to do caused or contributed to
Plaintiff's alleged damages.
12. Denied. The averments in this paragraph are conclusions of law to which no
response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are
deemed denied. To the extent that a responsive pleading may be deemed required by the
Court, Answering Defendant denies that he breached any alleged contract.
13. Denied. The averments in this paragraph are conclusions of law to which no
response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are
deemed denied. To the extent that a responsive pleading may be deemed required by the
Court, Answering Defendant denies that Plaintiffs substantially performed under the
alleged contract by providing the $12,000.00 down payment.
WHEREFORE, Answering Defendant demands that Plaintiff's Complaint be
dismissed and that judgment be entered in his favor, together with reasonable counsel
fees and costs.
COUNT 11. UNJUST ENRICHMENT
14. Answering Defendant hereby incorporates his responses to paragraphs 1 through
13 of the Complaint as fully as if the same were set forth at length herein.
15. Denied. The averments in this paragraph are conclusions of law to which no
response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are
deemed denied. To the extent that a responsive pleading may be deemed required by the
Court, Answering Defendant denies that Plaintiffs provided Answering Defendant with
$12,000.00 and strict proof thereof is demanded at trial.
16. Denied. The averments in this paragraph are conclusions of law to which no
response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are
deemed denied. To the extent that a responsive pleading may be deemed required by the
Court, Answering Defendant denies that he "has essentially left Plaintiffs without any
substantial asset in exchange for said money" and strict proof thereof is demanded at
trial.
17. Denied. The averments in this paragraph are conclusions of law to which no
response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are
deemed denied. To the extent that a responsive pleading may be deemed required by the
Court, Answering Defendant denies that the pool is so defective and as such is essentially
worthless. Strict proof thereof is demanded at trial.
18. Denied. The averments in this paragraph are conclusions of law to which no
response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are
deemed denied. To the extent that a responsive pleading may be deemed required by the
Court, Answering Defendant denies that he has been unjustly enriched in the amount of
$12,000.00. Strict proof thereof is demanded at trial.
WHEREFORF„ Answering Defendant demands that Plaintiff's Complaint be
dismissed and that judgment be entered in his favor, together with reasonable counsel
fees and costs.
NEW MATTER
19. Answering Defendant hereby incorporates his responses to paragraphs I through
18 of the Complaint as fully as if the same were set forth at length herein.
20. Plaintiffs' Complaint fails to state a claim upon which relief may be granted.
21. Plaintiffs' claims based upon contract, if any, are unenforceable and barred as a
result of the failure of, or lack of, consideration.
22. Plaintiffs' claims are barred by application of the doctrines of waiver and/or
estoppel.
23. If Plaintiffs sustained damages as alleged, which averments of damages are
specifically denied, said damages were caused by the acts or omissions of persons or
entities other than Answering Defendant and over whom Answering Defendant had no
control or right of control and/or for whom Answering Defendant was not/is not
responsible.
24. Answering Defendant rendered all services to the party with whom he contracted
in a proper and professional manner, and the services were rendered in accordance with
the standard of care required bysimilarly situated pool installation entities.
25. Plaintiffs' claims are barred and/or substantially reduced by virtue of any releases
or settlements that have been or will be agreed to be executed.
26. Plaintiffs' claims are barred and/or substantially reduced by their failure to
mitigate damages.
WHEREFORE, Answering Defendant demands that Plaintiffs Complaint be
dismissed and that judgment be entered in his favor, together with reasonable counsel
fees and costs.
COUNTERCLAIM
27. Answering Defendant hereby incorporates his responses to paragraphs 1 through
26 of the Complaint as fully as if the same were set forth at length herein.
I
28. Plaintiffs were required to pay Answering Defendant pursuant to the agreement
attached to Plaintiffs' Complaint as "Exhibit A".
29. Answering Defendant has performed all obligations for the installation of a
swimming pool pursuant to the agreement attached to Plaintiffs' Complaint as "Exhibit
A".
30. Answering Defendant rendered all services in a proper and professional manner,
and the services were rendered in accordance with the standard of care required by
similarly situated pool installation entities.
31. Plaintiffs have failed to pay Answering Defendant the balance of approximately
$1,700.00 for the installation of the pool.
WHEREFORE, Answering Defendant respectfully requests that judgment be entered
in his behalf and against Plaintiffs in the amount of $1,700.00 and such relief as the Court
deems just and proper.
Date:
Respec!tplly bmitted,
Jo angan
Attorney for Answering Defendant
Attorney I.D. 487000
35 East High Street
Suite 204
Carlisle, PA. 17013
717-241-2446
Verification
I, Joseph Ruda, hereby state that I am authorized to make this verification on
behalf of Answering Defendant. I further verify that the facts contained within the
foregoing Answer with New Matter to the Plaintiffs' Complaint are true and correct to
the best of my knowledge, information and belief and are made pursuant to 18 Pa.C.S. §
4904, relating to unworn falsification to authorities.
Joseph Ruda
Date: Z P ve 5
..N
STAN and MARY NYE,
Plaintiffs
V.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION LAW
JOSEPH RUDA, t/d/b/a CLEAR BLUE
POOLS,
Defendant
NO. 04-1496
CERTIFICATE OF SERVICE
I, John J. Mangan, do hereby certify that on this 28 h day of February, 2005, I caused a
true and correct copy of the foregoing Answer with New Matter and Counterclaim on
behalf of the Answering Defendant, to be served upon the following persons by hand
delivery:
James Nelson, Esq.
Law Offices of Rominger, Bayley & Whare
155 S. Hanover St.
Carlisle, PA 17013
N
N
N
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
STAN and MARY NYE,
Plaintiffs
Civil Action - Law
V.
JOSEPH RUDA t/d/b/a
CLEAR BLUE POOLS,
Defendant
No. 2004 - 1496
PLAINTIFFS' REPLY TO NEW MATTER AND
ANSWER TO COUNTERCLAIM
AND NOW, this Y6 day of March, 2005, come the Plaintiffs, Stan and Mary Nye, by
and through their counsel, ROMINGER, BAYLEY & WHARE, and hereby file this Reply
to New Matter and Answer to Counterclaim, and in support thereof aver as follows:
NEW MATTER
19. The averments contained in the Plaintiffs' Complaint are hereby
incorporated by reference as if fully set forth herein.
20. Denied. The averments of Paragraph 20 are a conclusion of law to which no
responsive pleading is required. If a more specific answer is deemed required, the averments
of Paragraph 20 are specifically denied and strict proof thereof is demanded at trial.
21. Denied. The averments of Paragraph 21 are a conclusion of law to which no
responsive pleading is required. If a more specific answer is deemed required, the averments
of Paragraph 21 are specifically denied and strict proof thereof is demanded at trial.
22. Denied. The averments of Paragraph 22 are a conclusion of law to which no
responsive pleading is required. If a more specific answer is deemed required, the averments
of Paragraph 22 are specifically denied and strict proof thereof is demanded at trial.
23. Denied. It is specifically denied that the damages suffered by the Plaintiffs
were caused by the acts or omissions of persons other than the Defendant, or by the acts or
omissions of persons or entities over whom the Defendant had no control or right of
control and/or for whom the Defendant was not/is not responsible. Strict proof of the
averments in Paragraph 23 is demanded at trial.
24. Denied. It is specifically denied that the Defendant rendered all services to
the Plaintiffs in a proper and professional manner, and that the services were rendered in
accordance with the applicable standard of care. Strict proof of the averments in Paragraph
24 is demanded at trial.
25. The averments of Paragraph 25 are a conclusion of law to which no
responsive pleading is required. If a more specific answer is deemed required, the averments
of Paragraph 25 are specifically denied and strict proof thereof is demanded at trial.
26 The averments of Paragraph 26 are a conclusion of law to which no
responsive pleading is required. If a more specific answer is deemed required, the averments
of Paragraph 26 are specifically denied and strict proof thereof is demanded at trial.
WHEREFORE, the Plaintiffs respectfully request that this Honorable Court find in
their favor and against the Defendant.
COUNTERCLAIM
27. The averments in Paragraphs 19 through 26, above, are incorporated herein
by reference as if fully set forth herein.
28. Denied. The agreement referenced by the Defendant speaks for itself By
way of further answer, the Defendant failed to perform as required by said agreement. Strict
proof of the averments in Paragraph 28 is demanded at trial.
29. Denied. It is specifically denied that the Defendant performed all obligations
for the installation of a swimming pool pursuant to the agreement referenced by the
Defendant. Strict proof of the averments in Paragraph 29 is demanded at trial.
30. Denied. It is specifically denied that the Defendant rendered all services in a
proper and professional manner, and that the services were rendered in accordance with the
applicable standard of care.
31. Denied. It is specifically denied that the Plaintiffs have failed to pay the
Defendant any balance properly due and outstanding. To the contrary, the Plaintiffs have
paid the Defendant $12,000, in return for which the Plaintiffs received a pool so defective it
was worthless, thereby unjustly enriching the Defendant. Strict proof of the averments in
Paragraph 31 is demanded at trial.
WHEREFORE, the Plaintiffs respectfully request that this Honorable Court find in
their favor and against the Defendant.
Respectfully submitted,
BAYLEY & WHARE
elson, Esquire
D. No. 91144
155 South Hanover Street
Carlisle, Pennsylvania 17013
Tel: (717) 241-6070
Fax: (717) 241-6878
Attorneys for Plaintiffs
IN THE, COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
STAN and MARY NYE,
Plaintiffs
Civil Action - Law
V.
JOSEPH RUDA t/d/b/a
CLEAR BLUE POOLS,
Defendant
No. 2004 - 1496
CERTIFICATE OF SERVICE
AND NOW, this 3rd day of March, 2005, I, James I. Nelson, Esquire, hereby certify that
I have this day served the following person with a copy of the foregoing Reply to New
Matter and Answer to Counterclaim, by first class, United States Mail, postage pre-paid,
addressed as follows:
John J. Mangan, Esquire
35 East High Street
Suite 204
Carlisle, PA 17013
YLEY & WHARF
James . elson, Esquire
orney I.D. No. 91144
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Attorneys for Plaintiff
VERIFICATION
I verify that the statements made in the foregoing Reply to New Matter and Answer
to Counterclaim are true and correct to the best of my knowledge, information and belief.
This Verification is made by Plaintiff's counsel based upon information provided by Plaintiff
to Plaintiff's counsel regarding the factual averments contained herein. I understand that
false statements herein are made subject to the penalties of 18 Pa. C. S. Section 4904, relating
to unswom falsification to authorities.
Date: March 3, 2005
r?J 17
c,i
fl
.?
-r'
`;
J
1 !
G.?
?
') ??`;;
Il't
Y"?
..
i.
?,J
Curtis R. Long
Prothonotary
office of the Protbonotarp
Cumberfanb Countp
Renee K. Simpson
Deputy Prothonotary
John E. Slike
Solicitor
614 - I q% CIVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA
RCP230.2
BY THE COURT,
CURTIS R. LONG
PROTHONOTARY
Tina rr%,,rthn„se Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-65TA