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HomeMy WebLinkAbout08-67091 COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS gth Judicial District, County Of Cumberland NOTICE OF APPEAL FROM MAGISTERIAL DISTRICT JUDGE JUDGMENT I I COMMON PLEAS No. 08 ~ (o'r09 0'iv1( Term NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Magisterial District Judge on the date and in the case referenced below. NAME OF APPELLANT MAG. DIST. NO. NAME OF MW Hi-Tech Hi-Art 09-1-01 Charles A. Clement Jr. ADDRESS OF APPELLANT CITY STATE ZIP CODE 32 8th Street New Cumberland PA 17070 DATE OF JUDGMENT IN THE CASE OF (PlaintM (Defendant)' 10/22/08 David R. Scherer V. Hi-Tech Hi-Art DOCKET No. SIGNATURE OF APPELLANT OR ATTORNEY OR AGENT CV-449-08 _ This block will be signed ONLY when this notation is required under Pa. R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the Magisterial District Judge, will operate as a SUPERSEDEAS to the judgment for possession in this case. was .D.J. No.(1f001(6) in action before a Magisterial District Judge, A COMPLAINT MUST BE FILED within twenty (20) days after riling the NOTICE of APPEAL. Sonature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before Magisterial District Judge. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon David R. Scherer Name of appellee(s) appellee(s), to file a complaint in this appeal (Common Pleas No. Dg _ &70q 0 i i ( ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. T&-M Signature of appellantlor attor y or agent Jonathan W. Crisp, Esq. RULE: To David R. Scherer , appellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: 1 20 T T i ignature of Prothonotary or Deputy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-05 COMMONWEALTH OF PENNSYLVANIA rrn 1K]TV ng:• COIfIBEJRI+a1® Dist. No,: 09-1-01 MDJ Name: Hon. CSA11LE8 A. CLOT, JR "dd- 400 BRIDGE ST OLDS i'ON>rE COMM -SUITE 3 RM CWizzRIJUM, PA Teiepnone: (717) 774-5989 17070 ATTORIIEY DRY PRIVATE JOII1TKAZ W. CRISP 3601 VARTAl11 Wr BARRISBDRG, PA 17110-5424 THIS IS TO NOTIFY YOU THAT: . Judgment: FOR PLA331TI" (Date of Judgment) 10/22/08 Judgment was entered for: (Name) SCE• DAVID R © Judgment was entered against: (Name) 81-T= SI-ART in the amount of $ 2, 393 . R Defendants are jointly and severally liable. 0 Damages will be assessed on Date & Time F] This case dismissed without prejudice. Amount of Judgment Subject to Attachment142 Pa.C.S. § 8127 El Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment Judgment Costs $ 2,250.00 $?' 50 Interest on Judgment $ Attorney Fees I $ Total $ 2,393.50 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARYXLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT0 TRANSCRIPT FOAM WITH YOUR NOTICE OF APPEAL EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE.MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. OCT 2 2 200 Date I certify that this is a true and correct copy of the record of the Date , Magisterial District Judge My commission expires first Monday of January, 2014 AOPC 315-07 DATE Plitm wz 10/22/08 11:47:00 All J NOTICE OF VLGC N /TRANSCRIPT C I PLAINTIFF: NAME and ADDRESS DAVID R OCR== ? , 476 tIIOODCREST DR MECHANICSBURG, PA 17050 L J VS. DEFENDANT: NAME and ADDRESS - 31-TIM 8I-ART 111 32 8TH STET N= COI1111aRLif311111D, PA 17070 L J Docket No.: CV-0000449-08 AA& . Date tiled: 8/28/08 I, Magisterial District Judge containing the judgment. SEAL 00 cn 0j- 0-761 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF Cumberland ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served ® a copy of the Notice of Appeal, Common Pleas No.08-6709, upon the Magisterial District Judge designated therein on (date of service) November 17, 2008, ® by personal service ? by (certified) (registered) mail, senders receipt attached hereto, and upon the appellee, (name) David Scherer, on November 18, 2008 ?by personal service ® by (certified) (registered) mail, senders receipt attached hereto. (SWORN) JAFFIRMED) AND SUBSCRIBED BEFORE ME THIS, ASL DAY OF November, 2008 Signature of official before whom affidavit was made NOTARIAL SEAL. PROTHONOTARY, NOTARY PUBLIC CARLISLE CUMBERLAND COUNTY COURTHOUSE MY COMMISSION EXPIRES JANUARY 4.2010 Title of official My commission expires on , 20 dSignature of a t AOPC 312A - 05 WD me _n s Cr Postage $ M x, C3 M Certified Fee Ln Return Receipt Fee Postm (Endorsement Required) Her C3 Restricted Delivery Fee 0 (Endorsement Required) `v •' C3 Total Postage & Fees C ?l) fi s. M (? 1 -I r-I ant bAVJ R- -------- 1 .. •----------------------------° C3 Street, Apt No or p0 Box No. O ^? ........ . --- -!!?52.4?A! k---.DC------ ..- _..r..-.--..-_ Clt tsta ZW+ 4 A 1,7 G s c) Jonathan W. Crisp, Attorney-at-Law 3601 Vartan Way Phone: (717) 412-4676 Harrisburg, PA 17110 Fax: (717) 412-4679 www.crispiegal.com E-mail jcrisp@crisplegal.com t hereby acknowledge receipt of the notice of appeal of Scherer v. Hi-Tech Hi-Art, Common Pleas docket number 08-6709. Date By: ?? ? ?: ^r`j 'rr ? i"} t°F? ?. m J t '^w f ' ?A.. ?`J _? :.,:;; ?3 ai: t"rC' ...C DAVID R. SCHERER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. 08-6709 CIVIL TERM HI-TECH HI-ART, LLC Defendant CIVIL ACTION - LAW NOTICE TO PLEAD TO: Hi-Tech Hi-Art, LLC c/o Jonathan W. Crisp, Esquire 3601 Vartan Way Harrisburg, Pennsylvania 17110 You are hereby notified that you have twenty (20) days in which to plead to the enclosed Complaint or a Default Judgment may be entered against you. O'BRIEN, BARIC & SCHERER M 4A.Scherer, Esquire I.D.# 61974 Date: 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 DAVID R. SCHERER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. 08-6709 CIVIL TERM HI-TECH HI-ART, LLC Defendant CIVIL ACTION - LAW COMPLAINT AND NOW, comes David R. Scherer, by and through his attorneys O'BRIEN, BARIC & SCHERER, and respectfully represents as follows: 1. The plaintiff is David R. Scherer (hereinafter "Scherer") who is an adult individual who resides at 476 Woodcrest Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. The defendant is Hi-Tech Hi-Art, LLC (hereinafter "Hi-Tech"), which is a Pennsylvania limited liability company with offices located at 32 8t" Street, New Cumberland, Cumberland County, Pennsylvania 17070. 3. John DiSanto, an adult individual, is a member of Hi-Tech and is authorized to conduct business on behalf of Hi-Tech. 4. At all times material hereto, Scherer owned a residence located at 516 3rd Street, New Cumberland, Cumberland County, Pennsylvania (hereinafter "property"), where he resided with his wife and two children. 5. On or about November 4, 2004, Hi-Tech, through DiSanto, submitted a proposal to Scherer to replace the roof at the property. A copy of the proposal is attached hereto as "Exhibit A." 6. The proposal was accepted by Scherer and Hi-Tech installed a metal shingle replacement roof at the property beginning in December, 2004 and concluding in February, 2005. 7. Scherer paid Hi-Tech $9,000.00 for the new roof as required by the proposal. 8. Eight days after the roof was installed, Scherer contacted Hi-Tech regarding a leak on the front right hip of the roof. 9. Four other leaks occurred at various locations on the roof and Hi-Tech successfully repaired those leaks. 10. Despite ongoing and repeated contacts with DiSanto and Hi-Tech over the next three years, the roof leak on the front right hip of the roof was never repaired. 11. In May, 2008, the property was offered for sale by Scherer. 12. At or about the time the property was offered for sale, Scherer contacted numerous roofing contractors in an effort to have the roof leak repaired. 13. No roofing contractor Scherer contacted would even inspect the roof to offer an estimate for repair of the roof because of the type of roof Hi-Tech installed, and no contractor was willing to work on the roof. 14. In connection with the sale, Scherer was required to complete a "Seller's Disclosure" form, and in connection therewith was required to disclose the roof leak. The Seller's Disclosure is attached as "Exhibit B." 15. An offer was made to purchase the property and a condition of the sale was that the roof leak be resolved. 16. Scherer signed an addendum to the agreement of sale that required him to credit the buyer the sum of $2,500.00 towards the repair of the roof, which repair would become the obligation of buyer after settlement. A copy of the addendum is attached hereto as "Exhibit C." 17. At settlement, Scherer contributed $2,500.00 to buyer for the repair of the roof. COUNT I BREACH OF WARRANTY 18. Paragraphs one through seventeen (17) above are incorporated herein by reference. 19. On January 14, 2005, Hi-Tech issued a written warranty relative to the labor for the installation of the roof, which is attached as "Exhibit D." 20. Hi-Tech refused or was unable to repair the roof leak in the approximately three year period after installation of the roof despite repeated requests of Scherer. WHEREFORE, Scherer demands judgment against Hi-Tech in the amount of $2,500.00 plus interest and costs of suit. COUNT II BREACH OF CONTRACT 21. Paragraphs one through twenty (20) above are incorporated herein by reference. 22. Hi-Tech's proposal stated that the work performed by Hi-Tech would be "completed in a substantial workmanlike manner." 23. The work performed by H-Tech was not completed in a good and workmanlike manner in that the roof still leaked as of the date Scherer sold the property. 24. Hi-Tech refused or was unable to repair the roof leak in the approximately three year period after installation of the roof despite repeated requests of Scherer. WHEREFORE, Scherer demands judgment against Hi-Tech in the amount of $2,500.00 plus interest and costs of suit. COUNT 111 VIOLATION OF UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW, 73 P.S. 201-1 ET.SEQ. 25. Paragraphs one through twenty-four (24) above are incorporated herein by reference. 26. Hi-Tech issued a written warranty in connection with its contract with Scherer. 27. Hi-Tech refused or was unable to repair the roof leak in the approximately three year period after installation of the roof despite repeated requests of Scherer. 28. Hi-Tech has refused to honor the written warranty it gave Scherer in connection with the installation of the roof. WHEREFORE, Scherer demands payment of three times his actual damages pursuant to section 201-9.2 of the UTPCPL and requests judgment against Hi-Tech in the amount of $7,500.00 plus attorney's fees, interest and costs of suit. Respectfully submitted, O'BRIEN, BARIC & SCHERER hl- MVcflael A. Scherer, Esquire I.D. # 61974 19 West South Street Carlisle, PA 17013 (717) 249-6873 Attorney for Plaintiff VERIFICATION The statements in the foregoing Complaint are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they 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 falsifications to authorities. Date: L26?u - ?• David R. Scherer a 9021 Shotvc Mg homes throughout vl the USA Name Address 1 ? Phone No. Office: Address: City Did Sca sviile Rd - Laurel, MD 20723-1725 800.341-3053 Fax 301-362-9041 JdihS Ct(( VORK TO BE PER Address ?_. Date of Plans A chitect Phone: PROPOSAL NO. SHEET NO. DATE State zip We hereby propose to furnish the materials and perform the labor necessary for the completion of c C •71 s ? e c; 1 ?i `. •t r f `P C> ? ! r^ ( ? ? i :} t " t `->? Il' t -vv. .,, ,5:"i, .. .` •? 4•?l'r:d !1!` t? t t t i f • f ? copper ?'Steei ? Plastic ? Aluminum ? Tile/Slate ? Slate t.The contractor shall provide a competent foreman to supervise all work and act as the contractor's representative unless designated otherwise. 2. No Installation shall be performed during rainy or inclement weather or on frost or wet covered surfaces. 3. Work shall be scheduled to provide a water tight seal at the end of each work day, in the areas worked upon during that day. 4. Underlayment, install 1 ply over entire roof area. 5. Install metal fleshings along eaves, rake edges, metal valleys and all other areas required to complete the roof installation. 6. Completion of days work, inspect the days work and repair any deficiencies and dean up prior to leaving site for the day. All material is guaranteed to be as specified, and the above work to be performed in accordance with the drawings and specifications submitted for above work and completed in a substanial workmanlike manner for the sum of Dollars W!" with payments to be made as follows. Any ---radon or daVladon from above specifications involving extra costs Respectfully submitted , ' , - ••l _ ,AN be gcutod orgy Law written order, and will become an extra char" vex and above me estimate. PR agnow-cis eorrfingent 4P Per etriirea, accidents. or delays beyond cur control. Note-This proposal may be withdrawn by us if not acceptedl within days. ACCEPTANCE OF PROPOSA The above prices, specifications and conditions are satisfactory and we are hereby accepted. You are authorized to do the work as specified. Payments will be made as outlined above. • " t Date ! I? Signature f 1 % ' a: • Signature START TO FINISH -JOIN THE AMERICAN ROOFING REVOLUTION "EXHIBIT A" s SELLER'S PROPERTY DISCLOSURE STATEMENT Property Address: 516 Third Street, New Cumberland, PA 17070 Seller. David Scherer and Johanna Brown A Seller must disclose to a Buyer all known material defects about property being sold that are not readily observable. This disclosure statement is designated to assist Seller in complying with disclosure requirements and to assist Buyer in evaluating the property being considered. This Statement discloses Sellers knowledge of the condition of the property as of the date signed by Seller and Is not a substitute for any inspections or warranties that Buyer may wish to obtain. This Statement is not a warranty of any kind b- Seller or a warranty or representation by any listing real estate broker, any selling real estate broker, or their licensees. Buyer is encouraged to address concerns about the conditions of the property that may not be included in this Statement. This Statemer does not relieve Seller of the obligation to disclose a material defect that may not be addressed on this form. A material defect is a problem with the property or any portion of it that would have a significant adverse impact on the value of the residential real property or that involves an unreasonable risk to people on the land. 1. Sellers Expertise Seller does not possess expertise in contracting, engineering, architecture, or other areas related to construction and conditions of the property and its improvements, except as follows: David Scherer is civil (geotechnical engineer). He has done extensive remodeling to the above property. With the exception of tt kitchen, which was done professionally, the remodeled rooms included: removal of horsehair plaster, placing ne wood and metal studstfurring strips, installation of hardboard insulation on exterior walls, replacement of outlets, switches and wiring, hanging of drywall, and refinishing woodwork. New plumbing throughout the house, upgraded electrical service, central air, gas fired boiler and water heater were installed professionally. 2. Occupancy (a) Do you, Seller, currently occupy this property? x Yes _No If Ono,* when did you last occupy the property? (b) Have there been any pets living in the house or other structures during your ownership? x Yes _No If 'yes,' describe: 3 cats from 1995-2001, 1 dog from 1998 to 2007, 2 dogs from 2007 to present. 3. Roof (a) Date roof installed: 1/2005 Documented? x Yes _No (b) Has the roof been replaced or repaired during your ownership? & Yes No (c) If Oyes,' were the existing shingles removed? x Yes _No -Unknown (d) Has the roof ever leaked during your ownership? X -Yes _No (e) Do you know of any problems with the roof, gutters or downspouts? x Yes _No Explain any "yes" answers that you give in this section: The slate roof leaked from 1995 to 2005 - the leaks were manageable and did not affect the living area of the second floor. After installation of the nev roof in 2005, 4 minor leaks/dampness were detected. Three leaks were repaired by installer promptly and have not leaked since they were repaired. The installer did repair the front right hip (looking at the house from Third St) of the roof, but there is still leakage/dampness noted during some rains. The roof shingles are warrantied for 50 years from date of installation, and this warranty is transferable one time. None of the leaks affected the living area on the second floor. 4. Basements and Crawl Spaces (complete only if applicable) (a) Does the property have a sump pump? Yes x -No -Unknown (b) Are you aware of any water leakage, accumulation, or dampness within the basement or crawl space? x Yes -No 'EXHIBIT B" XProperty Inspection OR ? Limited Property Inspection ? Environmental Hazards (e.g., asbestos, EMF's, UFFI, Underground Storage Tanks, etc.) ? Flood Plain Verification ? Property Boundary/Square Footage Verification ? Wetlands Inspection (B)- If-Buyer-is not satisfied-with-the-condition-of-the-Property as- stated in-any- written report Buyer receives as provided by paragraph 5(A) of this Addendum, Buyer will: 1. Accept the Property and agree to the RELEASE set forth in paragraph 8 of this Addendum, OR 2. Terminate the Agreement of Sale in writing by notice to Seller within the time given for inspection, in which case all deposit monies paid on account of the purchase price will be returned to Buyer and this Agreement of Sale will be NULL and VOID. (C) Buyer's FAILURE TO TERMINATE THIS AGREEMENT IN WRITING within the given time constitutes a waiver of this contingency, and all other provision of this Agreement of Sale will remain in full force and effect. In such case, Buyer agrees to the RELEASE set forth in paragraph 8 of this Addendum. 6. STATUS OF WATER - Seller represents that this property is served by Public Water. 7. STATUS OF SEWER - Seller represent that the Property is served by Public Sewer. 8. ROOF - Per the "Seller's Property Disclosure Statement" for the property at 516 Third Street, New Cumberland, PA, 17070, the roof leaks at the right front hip. The Seller agrees to credit the Buyer $2,500 at settlement toward roof work to be completed after settlement by Buyer's contractor of choice and at the Buyer's expense. Buyer agrees to accept the as-is condition of the roof and hold the Seller harmless therefore. Buyer's Initials Date 9. RELEASE - Buyer hereby releases, quit claims and forever discharges SELLER from any and all claims, losses or demands, including, but not limited to, personal injuries and property damage and all of the consequences thereof, whether now known or not, which may arise from the presence of termites or other wood boring insects, radon, lead-based paint hazards, environmental hazards, any defects in the on-site sewage disposal system or deficiencies in the on-site water service system, or any defects or conditions on the Property. This release shall survive settlement. All other terms and conditions of the Agreement of Sale remain unchanged and in full force and effect. Buyer Initials; e Seller Initials: *EXHIBIT` Cl' r0e Hit" -?"ecFi Hi-Art P.O. Box 645 Hershey, PA 17033 N? N 1! a? \ ?a y 0, Telephone: 800-341-3053 Jan uary :4,2 005 Mr. Dave Scherer Ms Johanna Brown 516 3rd Street New Cumberland, PA Dear Dave and Johanna: Enclosed please find the Steel Shingle Warranty for your roof. Custom-Bilt Metals requires that you sign, date and returned it to them by certified mail, so that the warranty can be validated. The conditions of the warranty indicate that if monies are owed the warranty will not be issued. The balance due on your account is $4250. Also, accept this letter and signature on this letter as our 10 year warranty inclusive of all labor of the installation of your roof. For a period of 10 years Hi-Tech Hi-Art warrants all labor for the installation of your roof. We are pleased to have worked with you. Enjoy many, many years of benefits of this Custom- Bilt Roof. Sincerely, John DiSanto Enc. "EXHIBIT D" CERTIFICATE OF SERVICE I hereby certify that on December 2, 2008, I, Jennifer S. Lindsay, secretary at O'Brien, Baric & Scherer, did serve a copy of the Complaint, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Hi-Tech/Hi-Art, LLC c/o Jonathan W. Crisp, Esquire 3601 Vartan Way Harrisburg, Pennsylvania 17110 __ , a'0 F'' .._.$ t `-_? l DAVID R. SCHERER, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF VS. : No. 2008-6709 HI-TECH HI-ART, L.L.C. CIVIL ACTION- LAW DEFENDANT TYPE OF PLEADING Defendant's Preliminary Objections Filed on Behalf of Defendant Counsel of Record for this Party: Jonathan W. Crisp, Esquire Attorney-At-Law PA I.D. 83505 3601 Vartan Way Harrisburg, PA 17110 717-412-4676 717-412-4679 (fax) jcrisp@crisplegal.com IK Jonathan W. Crisp, Esquire ID# 83505 3601 Vartan Way Harrisburg, PA 17110 Telephone: 71711124676 Facsimile: 717-4124679 icrisly_@_crisplegal.com Attorney for Defendant DAVID R. SCHERER, PLAINTIFF VS. HI-TECH HI-ART, L.L.C. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2008-6709 CIVIL ACTION- LAW DEFENDANT PRELIMINARY OBJECTIONS OF DEFENDANT AND NOW, comes the Defendant, Hi-Tech Hi-Art, L.L.C., by and through its attorney, Jonathan W. Crisp, Esq. and files Preliminary Objections in the nature of a Demurrer to dismiss with prejudice Plaintiff's Count III and in support thereof, avers as follows: 1. Plaintiff, David R. Sherer, filed a complaint in the Court of Common Pleas of Cumberland County on 2 December 2008, which was served on Defendant's counsel via LISPS, first class mail on 5 December 2008. 2. Plaintiff's complaint contains three (3) Counts for relief, two (2) sounding in contract and the third sounding tort. Count III fails to state a claim upon which relief can be granted. PRELIMINARY OBJECTION UNDER Pa. R. Civ. Pro 1028(a)(4) 3. Paragraphs 1-2 are hereby incorporated by reference as if fully set forth herein. 4. Defendant posits a preliminary objection in the nature of a demurrer with respect to Plaintiff's Count III because it fails to state a claim upon which relief can be granted because it violates the gist of the action doctrine or in the alternative, the economic loss doctrine. it 5. "[T]he gist of the action doctrine bars plaintiffs from bringing a tort claim that merely replicates a claim for breach of an underlying contract." Werwinski, et. al. v. Ford Motor Company, 286 F.3d 661, 680 (3`d Cir. Apr. 15, 2002) (quoting Phico Insurance Co. v. Presbyterian Medical Services Coro., 444 Pa. Super. 221, 663 A.2d 753 (1995)). Moreover, "...to be construed as a tort action, the wrong ascribed to the defendant must be the gist of the action with the contract being collateral.... Finally, ... the important difference between contract and tort actions is that the latter lie from the breach of duties imposed as a matter of social policy while the former lie for the breach of duties imposed by mutual consensus." Phico Insurance Co. v. Presbyterian Medical Services Coro., 444 Pa. Super. 221, 229, 663 A.2d 753, 757 (1995) 6. As our Supreme Court noted in Georgina Toy v. Metropolitan Life Insurance Co., 593 Pa. 20, 928 A.2d 1.86 (2007), the Pennsylvania Unfair Trade Practices Consumer Protection Law statute 73 P. S. § 201-1 et seq. (hereafter referred to as UTPCPL) requires one prove common law elements of fraud in a claim under the UTPCPL. Fraud sounds in tort law, not contract law. 7. Plaintiff alleges three (3) counts against Defendant. The first is a breach of warranty claim and the second is a breach of contract claim and the third is a violation of the UTPCPL. The facts used to support the allegations for each count are the same. As articulated in Plaintiff s complaint, the gist of this action is a contract between Plaintiff and Defendant whereby Defendant promised to install a metal roof on Plaintiff s former home and provided a warranty in conjunction therewith. 8. Consequently, the heart or gist of this action lies in contract law, not tort law. Moreover, Plaintiff fails to allege with any specificity, any common law elements of fraud in his complaint and even if he had done so, "a contract action may not be converted into a tort action simply by alleging that the conduct in question was done wantonly." Phico at 229. c 9. Therefore, the gist of the action doctrine bars Plaintiff's third count under the UTPCPL because the UTPCPL requires one prove fraud, which is a tort action and the tort claim essentially duplicates Counts I and 11. 10. Alternatively, the economic loss doctrine also bars Plaintiff's Count III. The economic loss doctrine prohibits Plaintiffs from recovering in tort those losses that stem solely in alleged breach of contract. See generally, Spivack v. Berks Ridge Cor., 402 Pa. Super. 73, 586 A.2d 402 (1991). 11. As stated supra, Count III is a tort claim that merely restates Counts I and 11. A such, Defendant's demurrer should be sustained and Count III should be dismissed with prejudice. WHEREFORE, Plaintiff's Count III must be dismissed with prejudice. _ c? c d' Date Respectfully submitted, J n than W. Crisp, E 3601 Vartan Way Harrisburg, PA 17110 717-412-4676 717-412-4679 Attorney for Defendant x _ CERTIFICATE OF SERVICE I, JONATHAN W. CRISP, ESQ. attorney for the Defendant in the above described action hereby certify that I mailed on December 22, 2008, a stamped copy of Defendant's Preliminary Objections to Plaintiff's complaint on counsel for the Plaintiff, Michael Scherer, Esq., at 19 West South Stret, Carlisle, PA 17013. JONATHAN W. CRISP, ESQ. t• DAVID R. SCHERER, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF VS. HI-TECH HI-ART, L.L.C. No. 2008-6709 CIVIL ACTION- LAW DEFENDANT ORDER This matter having come before this Court on Demurrer in the above captioned matter, UPON CONSIDERATION WHEREOF, it appearing to the Court that the Demurrer is well taken, It is ADJUDGED, ORDERED, AND DECREED, that Count III of the Complaint in the above matter is dismissed, with prejudice. Entered this day of 9200. _JUDGE Distribution: Michael Scherer, Esq., at 19 West South Stret, Carlisle, PA 17013 Jonathan W. Crisp, Esq. 3601 Vartan Way, Harrisburg, PA 17110 Prothonotary `., . ?? - :-- ,= :?..? - r?,? ? ?'. ?=?' PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) DAVID R. SCHERER, Plaintiff VS. HI-TECH HI-ART, LLC, Defendant No. 2008-6709 Civil Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections Of Defendant 2. Identify all counsel who will argue cases: (a) for plaintiffs: Michael A. Scherer, Esq., 19 West South St., Carlisle, PA 17013 (Name and Address) (b) for defendants: Jonathan W. Crisp, Esq., 3601 Vartan Way, Harrisburg, PA 17110 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: February 4, 20 Michael A. Scherer, Esquire Print your name 3 9/Jio Attorneyfor Plaintiff Date: INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief. 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. =? C " . ? :, -? ? ,. i ::_? z ?- ....3 .? r -- . ?? , ?" ;?? f+,? ? =i .. '; ,? ?` t? .L ?? DAVID R. SCHERER, Plaintiff V. HI-TECH HI-ART, L.L.C., : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-6709 C IVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HESS, OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 5th day of February, 2009, upon consideration of Defendant's Preliminary Objections to Plaintiff's Complaint in the nature of a demurrer to Count III of the Complaint, and following oral argument held on February 4, 2009, the preliminary objections are denied. /Michael A. Scherer Esq. 19 Westj;outh Street Carlisle, PA 17013 Attorney for Plaintiff Jonathan W. Crisp, Esq. 3601 Vartan Way Harrisburg, PA 17110 Attorney for Defendant Cesc%t'" fn?tt'LCL a/r(o7 BY THE COURT, J.A Vesley Oleiz r., J. ,SRS Nlr,': . 9S .C w ,,,d S- MROZ ?C? it t l.. ? i V '?^? t DAVID R. SCHERER, PLAINTIFF VS. HI-TECH HI-ART, L.L.C. DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2008-6709 CIVIL ACTION- LAW TYPE OF PLEADING Answer and New Matters Filed on Behalf of Defendant Counsel of Record for this Party: Jonathan W. Crisp, Esquire Attorney-At-Law PA I.D. 83505 3601 Vartan Way Harrisburg, PA 17110 717-412-4676 717-412-4679 (fax) jcrisp@crisplegal.com DAVID R. SCHERER, PLAINTIFF VS. HI-TECH HI-ART, L.L.C. DEFENDANT To: David Scherer IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2008-6709 CIVIL ACTION- LAW Notice to Plead You are hereby notified to file a written response to the enclosed Answer and New Matters within twenty (20) days from service hereof or a judgment may be entered against you. Jonathan W. Crisp, Esquire Attorney-At-Law PA I.D. 83505 3601 Vartan Way Harrisburg, PA 17110 717-412-4676 717-412-4679 (fax) jcrisp@crisplegal.com Jonathan W. Crisp, Esquire IN 83505 3601 Vartan Way Harrisburg, PA 17110 Telephone: 717-909-8227 Facsimile: 717-657-0263 4crispl crisplegalcom Attorney for Defendant DAVID R. SCHERER, PLAINTIFF vs. HI-TECH HI-ART, L.L.C DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2008-6709 CIVIL ACTION- LAW ANSWER AND NEW MATTERS (SUBSEQUENT TO THE COURT'S 5 FEBRUARY 2009 RULING ON DEFENDANT'S PRELIMINARY OBJECTIONS) AND NOW, comes the Defendant, Hi-Tech Hi-Art, L.L.C., by and through its attorney, Jonathan W. Crisp, Esq. and files an answer and in support thereof, avers as follows: 1. Paragraph one (1) of plaintiff's complaint is admitted upon information and belief. 2. Paragraphs two (2) and three (3) of plaintiff's complaint are admitted. 3. Paragraph four (4) of plaintiff's complaint is admitted in part and denied in part. It is admitted that Plaintiff owned a residence at 516 3`d Street, New Cumberland, County Pennsylvania from on or about November 2004 until May 2008. Defendant denies that the period of ownership of Plaintiff constitutes the material period of time relevant to the complaint and that language is therefore denied. Defendant also lacks sufficient knowledge or information to form a belief as to who resided with plaintiff and the final dependent clause is therefore denied. 4. Paragraph five (5) of plaintiff's complaint is admitted. 5. Paragraph six (6) of plaintiff's complaint is admitted. 6. Paragraph seven (7) of plaintiff's complaint is admitted. 7. Paragraph eight (8) of plaintiff's complaint is admitted. 8. Paragraph nine (9) of plaintiffs complaint is admitted in part and denied in part. It is admitted that three (3) other leaks occurred, which defendant repaired. It is denied, however, that there was a fourth leak.' 9. Paragraph ten (10) of plaintiff's complaint is specifically denied. It is specifically denied that defendant never repaired the leak on the front right hip of the roof. 10. Paragraph eleven (11) of plaintiff's complaint is admitted upon information or belief. 11. Paragraph twelve (12) of plaintiff's complaint is denied. Defendant lacks sufficient knowledge or information to form a belief as to the allegations contained in this paragraph and therefore deny same and demand strict proof at the time of trial. 12. Paragraph thirteen (13) of plaintiff's complaint is denied. Defendant lacks sufficient knowledge or information to form a belief as to the allegations contained in this paragraph and therefore deny same and demand strict proof at the time of trial. 13. Paragraph fourteen (14) of plaintiff s complaint is a conclusion of law to which no responsive pleading is required. 14. Paragraph fifteen (15) of plaintiff's complaint is admitted in part and denied in part. It is admitted upon information and belief there was an offer. However, defendant lacks sufficient knowledge or information to form a belief as to the remaining allegation pertaining to the condition of sale contained in this paragraph and therefore deny same and demand strict proof at the time of trial. 15. Paragraph sixteen (16) of plaintiff's complaint is admitted upon information and belief. ' See Plaintiffs complaint Exhibit B § 3 §§ e. (Seller's Property disclosure statement.) 16. Paragraph seventeen (17) of plaintiff's complaint is denied. Defendant lacks sufficient knowledge or information to form a belief as to the allegations contained in this paragraph and therefore deny same and demand strict proof at the time of trial. 17. No answer is required to paragraph eighteen (18) of plaintiff's complaint. 18. Paragraph nineteen (19) of plaintiff's complaint is admitted. 19. Paragraph twenty (20) of plaintiff's complaint is specifically denied. Defendant, by plaintiff's own admission sought to effect the repair and upon information and belief, defendant ultimately repaired the leak. 20. No answer is required to paragraph twenty-one (21) of plaintiffs complaint. 21. Paragraph twenty-two (22) of plaintiffs complaint is admitted. 22. Paragraph twenty-three (23) of plaintiff s complaint is specifically denied. Said leak was repaired at the time plaintiff sold the property, moreover, even assuming arguendo, the leak was not repaired, defendant substantially complied with the terms of the contract. 23. Paragraph twenty-four (24) of plaintiff s complaint is denied. By plaintiff s own admission, defendant made at least three (3) attempts to repair any alleged leak. 24. No answer is required to paragraph twenty-five (25) of plaintiff s complaint. 25. Paragraph twenty-six (26) of plaintiff s complaint is admitted. 26. Paragraphs twenty-seven (27) and twenty-eight (28) of plaintiff's complaint are denied. The leak was repaired. In addition, by plaintiffs own admission defendant made at least three (3) attempts to repair any alleged leak. And, assuming, arguendo, defendant did not repair the leak, defendant substantially complied with the terms of the warranty. Defendant did not willfully or fraudulently fail to honor the terms of said warranty. WHREFORE, Plaintiffs complaint must be dismissed with prejudice. NEW MATTERS 27. Paragraphs 1-26 are hereby incorporated by reference as if fully set forth herein. 30. Defendant raises the defense impossibility of performance. Plaintiff has precluded defendant's ability to honor the terms of the contract and attendant warranty by not allowing defendant the opportunity to effect the repair. 31. The sale of the property foreclosed defendant's ability to continue to honor the contract and warranty. In view of the foregoing circumstances, it has become impossible for defendant to perform under the contract, and plaintiffs action for damages for defendant's failure to perform is barred. 31. Defendant also raises the defense of waiver. Plaintiff seeks to recover damages from an offset he provided the buyer of his home. 32. Plaintiff was aware of and admitted that the warranty was transferable one time and that it had not been transferred. Plaintiff s failure to transfer said warranty waives any claim he may have under the warranty provision. 33. Defendant also raises the defense of improper measure of damages. Plaintiff asserts he provided an offset to the buyer of his residence in the amount of $2,500.00. 34. Plaintiff has failed to demonstrate how Defendant's alleged breach has caused damages in that amount. Therefore, Plaintiff's request for damages should be stricken. WHEREFORE, Defendant requests this Honorable Court dismiss with prejudice all of Plaintiffs' prayers for relief listed in his complaint. Date Respectfully submitted, (JeAthan W. Crisp, Esq. 3601 Vartan Way Harrisburg, PA 17110 Attorney for Defendant VERIFICATION The undersigned hereby verifies that all statements contained in the foregoing answer and new matter are true and accurate to the best of my knowledge, information and belief. I hereby acknowledge that the facts set forth in the aforesaid Complaint are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Dated. 10 q CERTIFICATE OF SERVICE I, JONATHAN W. CRISP, ESQ. attorney for the Defendant in the above described action hereby certify that I faxed and mailed on March 12, 2009, a stamped copy of Defendant's Answer and New Matter to Plaintiffs complaint on counsel for the Plaintiff, David Scherer, Esq., at 19 West Carlisle Street, Carlisle, PA 17013. JONATHAN W. CRISP, ESQ. C7 77 DAVID R. SCHERER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. 08-6709 CIVIL TERM HI-TECH HI-ART, LLC Defendant CIVIL ACTION - LAW REPLY TO NEW MATTER 27. No reply is required. 30. Denied. Plaintiff repeatedly contacted John DiSanto, plaintiff's contact at defendant's firm, to request that the leak be repaired. Initially, DiSanto promised to appear at plaintiffs residence to repair the leak. Later, plaintiff was rarely able to get anyone on the phone at defendant's place of business and plaintiff left many messages for DiSanto and calls were not returned by DiSanto/defendant. Occasionally plaintiff would call for DiSanto and get a secretary or foreman, who would take a message but plaintiff would not receive a return call from DiSanto/defendant. The leak in plaintiffs roof occurred in February, 2005 and defendant had until May, 2008, when the property was transferred, to fix the leak. 31. (First 31.) Admitted. After the property was transferred to the new owner, defendant's opportunity to fix the leak to avoid plaintiff incurring damages was no longer possible. 31 (Second 31.) Denied and Admitted. Denied that plaintiff waived anything. Admitted that plaintiffs only remedy was to afford the buyer of his home a credit and transfer the problem of fixing the leak to the buyers. .y 32. Admitted. Plaintiff did not know whether the buyers of his home would accept the transfer of a warranty where the defendant refused to honor the warranty for plaintiff. In addition, plaintiff did not think is was morally appropriate to transfer a warranty to the buyer of his home where plaintiff knew that the warranty was essentially worthless because defendant failed, over the course of over three years, to honor it. Furthermore, the warranty did not indicate that it was transferrable. 33. Denied. Plaintiff was unable to even get a quote from an alternate roofing contractor to fix the leak. Therefore, the only measure of damages is what the roof leak cost the plaintiff, which was $2,500.00. Plaintiff felt that to be fair to the buyers of the home, approximately one-quarter of the roof would have to be redone. One quarter of the cost to replace the roof was $2,250.00 and a ten percent contingency was added and the number war rounded to $2,500.00. 34. Denied. See answer to paragraph 33. above. Respectfully submitted, O'BRIEN, BARIC & SCHERER Mic el A. cherer, Esquire I.D. No. 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff mae.didrealestate/echererinewmatter. rep VERIFICATION The statements in the foregoing Reply To New Matter are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they 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 unswom falsifications to authorities. DATE: 3T l 0 David R. Scherer CERTIFICATE OF SERVICE I hereby certify that on March 17, 2009, I, Jennifer S. Lindsay, secretary at O'Brien, Baric & Scherer, did serve a copy of the Reply To New Matter, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Jonathan W. Crisp, Esquire 3601 Vartan Way Harrisburg, Pennsylvania 17110 - ? rj t z m DAVID R. SCHERER, V. HI-TECH HI-ART, LLC, Plaintiff Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 6709 Civi120 08 RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Michael A. Scherer , counsel for the plaintiff/ in the above action (or actions), respectfully represents that: 1. The above-captioned action *NkW is (W at issue. 2. The claim of plaintiff in the action is $ 7,500.00 The counterclaim of the defendant in the action is $ 0.0 0 The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Michael A. Scherer, Esquire and Jonathan W. Crisp, Esquire WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, A&W, /A -// Mic a 1 A. Scherer, Esquire ORDER OF COURT AND NOW, , 200____, in consideration of the foregoing petition, Esq., and Esq., and Esq., are appointed arbitrators in the above captioned action (or actions) as prayed for. By the Court, EDGAR B. BAYLEY k , Ao ! ?p , ? \rs DAVID R. SCHERER, Plaintiff HI-TECH HI-ART. LLC Defendant In The Court of Common Pleas of Cumberland County, Pennsylvania No. 2008- 6709 Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office wi elity. i ture Signature Signature JAMES D. BOGAR BARBARA A. IMMERMAN JOHN A. ABOM Name (Chairman) LAW OFFICES OF JAMES D. BOGAR Law Firm 1 West Main Street Address Name LAW OFFICES OF BARBARA ZIMMERMAN Law Firm Name WM & KUTULAKIS, LLP Law Firm 355 N. 21st St.; Ste #207 36 South Hanover Street Address Address Shiremanstown, PA 17011 Camp Hill, PA 17[ 11 rarl i sl e, PA =33 City, Zip City, Zip City, zip /OZ78 Awarr 8S' I ODD ?, We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) . Arbitrator, dissents. (Insert name if applicable. Date of Hearing: S16 Loo Date of Award: 31WpI JOHN A. A. Z Notice of Entry of Award (Chaizznan) Now, the 134k day of 2001___, at A.M., the above award was entered upon the docket and notice thereo given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: $ 3$TQ, ry? ?i C&?Qlf I& By: Prothonotary Deputy FILED--C, Fr,E OF THE Fpc)TI-i'C OTARY 2099 MAY 13 AM 9: 33 r'c 13?o4 - cf+ DAVID R. SCHERER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. 08-6709 CIVIL TERM HI-TECH HI-ART, LLC Defendant CIVIL ACTION - LAW PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Kindly mark the above-captioned action as having been settled and discontinued. O'BRIEN, BARIC & SCHERER 4A b A ? (j- 1,,, el c erer, Esquire 19 West South Street Carlisle, Pennsylvania 17013 onathan W. Crisp, Esquire 601 Vartan Way Harrisburg, Pennsylvania 17110 Attorney for Plaintiff Attorney for Defendant FILL' 0. r {= -, Y 2009 A!' -' F'i L: t 0 t 61.