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HomeMy WebLinkAbout04-1913YANEK CUSTOM HOMES, INC., Plaintiff DAVID A. LATSHA, Defendant In the Court of Common Pleas of Cumberland County, Pennsylvania Civil Action - Law NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. I]7 YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, Pennsylvania 17013 Phone: 717.249.3166 SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA Date: By: SAIDIS, SHUFF, FLOWER & LINDSAY, Attorney I.D. #77851 26 West High Street Carlisle, Pennsylvania 17013 Phone: 717.243.6222 Attorneys for Plaintiff YANEK CUSTOM HOMES, 1NC., Plaintiff DAVID A. LATSHA, Defendant In the Court of Common Pleas of Cumberland County, Pennsylvania Civil Action - Law COMPLAINT PARTIES SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA 1. Plaintiff, YANEK CUSTOM HOMES, INC. (hereinafter "YANEK"), is a licensed building contractor with a place of business located at 8 South Ridge Road, Boiling Springs, Cumberland County, Pennsylvania. 2. Defendant, DAVID A. LATSHA (hereinafter "Defendant"), is an adult individual residing at 85 Greenwood Circle, Wormleysburg, Cumberland County, Pennsylvania. 3. On or about July 2001, YANEK and Defendant entered into a written contract for the completion of improvements and remodeling work for an existing residential property located at 85 Greenwood Circle, Wormleysburg, Cumberland County, Pennsylvania. A true and correct copy of the contract is attached hereto, made a part hereof, and marked as Exhibit "A". 4. On or about July 2001, YANEK entered upon the performance of the contract and commenced the work called for by the same. 2 SA1DIS SHUFF, FLOWER & LINDSAY COUNT I - BREACH OF CONTRACT 5. The allegations in Paragraphs One through Four, inclusive, are made a part hereof and incorporated herein by reference. 6. In accordance with the contract, YANEK performed all work and provided all material necessary for the remodeling of the structure and all work was performed in a workmanlike manner. 7. All of the work was from time to time submitted for inspection and was duly approved by Defendant to be correct. 8. Pursuant to Article 2 of the aforementioned contract, YANEK was to receive payment in the form of time and material plus 15% for the improvements and remodeling, including all work performed by subcontractors. 9. On or about June 2002, YANEK completed the remodeling and the improvements on the interior of the home and submitted his bill to Defendant, who did, and continues to, refuse to pay YANEK pursuant to the contract, informing YANEK that he would not pay YANEK anything further. 10. Defendant has failed and refused to pay to YANEK the remaining balance of the contract price in the an~ount of $14,713.43, or any part thereof, although YANEK has repeatedly demanded payment of the same. WHEREFORE, YANEK demands judgment against Defendant for a sum in excess of $14,713.43 with interest from June 2002, attorneys' fees and costs. SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Streei COUNT II - QUANTUM MERU1T 11, The allegations in Paragraphs Five through Ten, inclusive, are made a part hereof and incorporated herein by reference. 12. The aforementioned contract called for the construction ora 1,000 square foot outdoor deck and the furnishing of certain materials by YANEK as therein stated, subject to the approval of Defendant. 13. YANEK completed construction of the outdoor deck in March 2002. 14. In March 2002, after construction of the deck, YANEK, through a subcontractor, installed cement board atop the deck, which was to be used to secure tiles that would be used on the deck pursuant to Defendant's request. 15. At that time, YANEK advised Defendant to use a specific flashing system, Schluters, recommended for outdoor tile on decks, and that carried a five (5) year warranty. 16. Defendant opted not to install the Schluters Flashing System. 17. Defendant consulted BEAM's CARPET, INC. (hereinafter "BEAM's") to perform the tile work on the deck and BEAM's was the company that had instructed YANEK to lay the cement board. 18. From March 2002 until July 26, 2002, BEAM's had on several occasions given quotes to Defendant for the tile work for the exterior deck, but never received authorization from Defendant to perform the work. 19. This period of delay, which had been caused by Defendant's refusal to authorize BEAM's to proceed with tiling the deck, lasted approximately four (4) months during the spring and summer of 2002, during which time YANEK had placed a plastic cover over the deck and cement board in order to keep out the elements. 4 SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street 20, That during this period of delay, Defendant was treating for a cancerous tumor on his neck, which was eventually removed in the summer of 2002. 21. That Defendant's medical condition contributed to his failure to provide authorization for the installation of the tile on the deck. 22. Near the end of July 2002, YANEK scheduled a meeting with BEAM's and Defendant regarding completion of the deck. 23. As a result of the meeting, BEAM's submitted its final quote regarding tiling the deck to Defendant on July 26, 2002. A true and correct copy of the quote is attached hereto, made a part hereof, and marked as Exhibit "B". 24. YANEK contacted BEAM's in August of 2002 for a status update on the tile work and was informed by BEAM's that it had not heard from Defendant since sending the July 26, 2002 quote and, therefore, had not received authorization to proceed. 25. At that time, BEAM's advised that it was booked for the rest of the year to perform outdoor work and that they could not complete Defendant's project before the winter. 26. YANEK contacted Defendant about his failure to approve the tiling work on the deck, but Defendant still refused authorization to proceed. 27. After BEAM's had informed YANEK it could not complete the project, YANEK arranged a meeting between Defendant, FLUSS and YANEK. 28. After that meeting, in August 2002, Defendant instructed YANEK to remove the tarpaulin from the deck and at which time it was discovered the wooden deck structure had been severely damaged from the rain and moisture. 29. At that point, Defendant threatened to sue YANEK if the deck was not torn down and rebuilt within Thirty (30) days. SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA 30. On or about September 2002, YANEK, in good faith, removed the entire wooden deck structure and began to reconstruct the same pursuant to the specifications received from Defendant's new flooring subcontractor, FLUSS FLOORING (hereinafter FLUSS). 31. Reconstruction of the deck was completed in October 2002 by YANEK and FLUSS completed the tile work on the deck in November of 2002. 32. In November 2002, YANEK had to expend time and materials to correct mistakes by FLUSS, which caused leaking on the deck, in the amount of $1,029.32. 33. After completion of rebuilding the deck and other work, YANEK submitted an invoice to Defendant totaling the amount of $16,567.91, such invoice did not include brickwork, a true and correct copy is attached hereto and marked as Exhibit "C". 34. Subsequent to the completion of rebuilding the deck, a claim was submitted through YANEK's insurance company for the damage and rebuilding of the deck, including brickwork, in the amount of $17,936.34, true and correct copies of supporting invoices are attached hereto and marked as Exhibit "D'. 35. In January of 2004, Defendant received an insurance settlement check in the amount of $17,018.09 for his expense to rebuild the deck in October 2002, but Defendant refused to pay YANEK for rebuilding the deck. A true and correct copy of the confirmation letter is attached hereto and marked as Exhibit "E". 36. YANEK requested payment from Defendant for his costs to rebuild the deck and to correct FLUS S' mistakes by letter dated January 16, 2004, a true and correct copy of which is attached hereto and marked as Exhibit "F", but Defendant refused payment. 6 37. YANEK has repeatedly demanded payment of the amount due for rebuilding the deck and correcting mistakes, but Defendant has wholly neglected and refused to pay the same or any part thereof. WHEREFORE, YANEK demands judgment against Defendant for the sum of $18,047.41, with interest from October 2002, attorneys' fees and costs. SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA COUNT III - BREACH OF CONTRACT 38. The allegations in Paragraphs Eleven through Thirty-Two, inclusive, are made a part hereof and incorporated herein by reference. 39. That pursuant to the contract between YANEK and Defendant, which is attached hereto as Exhibit "A," specifically, ARTICLE 1. SCOPE OF WORK, YANEK was to "furnish all of the materials and perform all of the Work for completion of the improvements and remodeling work" for the existing residential property. 40. That pursuant to the contract between YANEK and Defendant, which is attached hereto as Exhibit "A," specifically, ARTICLE 3. SUBCONTRACTS AND OTHER AGREEMENTS, all work on the project that was to be performed by parties other than YANEK, would go through a specific bidding process that would allow input from YANEK and Defendant, and that all work "shall be performed under subcontracts or by other agreements" with YANEK. 41. That pursuant to the contract between YANEK and Defendant, which is attached hereto as Exhibit "A," specifically, ARTICLE 9. CONTRACTOR'S EMPLOYEES AND SUBCONTRACTORS, YANEK was responsible for all subcontractors and any work they performed on the project. SAIDIS SI-Riff, FLOWER & LINDSAY 42. That pursuant to the contract between YANEK and Defendant, which is attached hereto as Exhibit "A," specifically, ARTICLE 2. PAYMENT OF CONTRACT PRICE; PROGRESS PAYMENTS, Defendant was to pay YANEK for time and materials, plus Fifteen (15%) Percent, including Fifteen (15%) Percent for all work completed by subcontractors. 43. Furthermore, pursuant to the contract, which is attached hereto as Exhibit "A," all subcontractors were paid directly by YANEK, who would then submit such invoiced amounts plus his Fifteen (15%) Percent profit to the Defendant for payment. 44. The terms of the contract, which is attached hereto as Exhibit "A," specifically, ARTICLE 3. SUBCONTRACTS AND OTHER AGREEMENTS, prohibited Defendant from hiring subcontractors directly and from paying subcontractors directly for work performed. 45. Disregarding the terms of the contract, on several occasions the Defendant directly contracted with third parties to perform work on the project. 46. Disregarding the terms of the contract, on several occasions the Defendant directly paid those parties with whom he had contracted to perform work without going through YANEK and without paying YANEK his Fifteen (15%) Percent fee for the work performed. 47. Specifically, in late April through early May 2002, the Defendant contracted directly with K.E. Cook, Excavating to perform some excavation work on the property. 48. In contracting with K.E. Cook, Excavating, Defendant failed to adhere to the terms of the bidding process as outlined in the contract. 8 SAIDI$ SItUFF, FLOWER & LINDSAY 26 W. High Slreet Carlisle, PA 49. In contracting with K.E. Cook, Excavating, Defendant failed to advise YANEK of the same and failed to pay YANEK his Fifteen (15%) Percent fee for work performed by K.E. Cook, Excavating, pursuant to the terms of the contract. 50. That K.E. Cook, Excavating submitted an invoice to the Defendant in May 2002 for work performed in the amount of Four Thousand Seven Hundred Thirteen and 61/1.00 ($4,713.61) Dollars, a copy of such invoice is attached hereto as Exhibit "G". 51. That Defendant paid such invoice on or about June 7, 2002. 52. That Defendant failed to pay YANEK his Fifteen (15%) Percent fee for that invoice as required by the terms of the contract., which would have been Six Hundred Seven and 04/1.00 ($607.04) Dollars. 53. Defendant's failure to adhere to the bidding process and failure to pay YANEK his Fifteen (15%) Percent fee for the work performed by K.E. Cook, Excavating was a breach of the terms of the contract, which is attached hereto as Exhibit "A." 54. In the spring of 2002, the Defendant also contracted directly with Scott Hoagland of H.S & S. to perform DRYVIT stucco work in the basement. 55. In contracting with H.S. & S., Defendant failed to adhere to the terms of the bidding process as outlined in the contract. 56. In contracting with H.S. & S., Defendant failed to advise YANEK of the same and failed to pay YANEK his Fifteen (15%) Percent fee for work performed by H.S. & S., pursuant to the terms of the contract. 57. That H.S. & S. submitted an invoice or invoices to the Defendant for work performed in the spring of 2002. 58. That Defendant paid such invoice(s) to H.S. & S. 9 SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street 59. Defendant's failure to adhere to the bidding process and failure to pay YANEK his Fifteen (15%) Percent fee for the work performed by H.S. & S. was a breach of the terms of the contract, which is attached hereto as Exhibit "A." 60. In the spring of 2002, the Defendant also contracted directly with Keith Lindsay to perform stonework on the property. 61. In contracting with Lindsay, Defendant failed to adhere to the terms of the bidding process as outlined in the contract. 62. In contracting with Lindsay, Defendant failed to advise YANEK of the same and failed to pay YANEK his Fifteen (15%) Percent fee for work performed by Lindsay, pursuant to the terms of the contract. 63. That Lindsay submitted an invoice or invoices to the Defendant for work performed in the spring of 2002. 64. That Defendant paid such invoice(s) to Lindsay. 65. Defendant's failure to adhere to the bidding process and failure to pay YANEK his Fifteen (15%) Percent fee for the work performed by Lindsay was a breach of the terms of the contract, which is attached hereto as Exhibit "A." 66. In the spring of 2002, the Defendant also contracted directly with Morris Hess to perform brickwork on the property. 67. In contracting with Hess, Defendant failed to adhere to the terms of the bidding process as outlined in the contract. 68. In contracting with Hess, Defendant failed to advise YANEK of the same and failed to pay YANEK his Fifteen (15%) Percent fee for work performed by Hess, pursuant to the terms of the contract. 10 SAIDIS SHUFF, FLOWER & L1NDSAY 16 W. High gt~t Carlisle, PA 69. That Hess submitted an invoice or invoices to the Defendant for work perfortned in the spring of 2002. 70. That Defendant paid such invoice(s) to Hess. 71. Defendant's failure to adhere to the bidding process and failure to pay YANEK his Fifteen (15 %) Percent fee for the work performed by Hess was a breach of the terms of the contract, which is attached hereto as Exhibit "A." 72. In the spring of 2002, the Defendant also contracted directly with BEAM'S Carpeting for interior tile on the property. 73. In contracting with BEAM'S, failed to adhere to the terms of the bidding process as outlined in the contract. 74. In contracting with BEAM'S, Defendant failed to pay YANEK his Fifteen (15%) Percent fee for work performed by BEAM'S, pursuant to the terms of the contract. 75. That BEAM'S submitted an invoice or invoices to the Defendant for work performed in the spring of 2002. 76. That Defendant paid such invoice(s) to BEAM'S. 77. Defendant's failure to adhere to the bidding process and failure to pay YANEK his Fifteen (15%) Percent fee for the work performed by BEAM'S was a breach of the terms of the contract, which is attached hereto as Exhibit "A.' 78. In the spring of 2002, the Defendant also contracted directly with Elam Fisher to perform custom cabinetry work on the property. 79. In contracting with Fisher, Defendant failed to adhere to the terms of the bidding process as outlined in the contract. 11 SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA 80. In contracting with Fisher, Defendant failed to pay YANEK his Fifteen (15%) Percent fee for work performed by Fisher, pursuant to the terms of the contract. 81. That Fisher submitted an invoice or invoices to the Defendant for work performed in the spring of 2002. 82. That Defendant paid such invoice(s) to Fisher. 83. Defendant's failure to adhere to the bidding process and failure to pay YANEK his Fifteen (15%) Percem fee for the work performed by Fisher was a breach of the terms of the contract, which is attached hereto as Exhibit "A." 84. In the spring of 2002, the Defendant also contracted directly with the company, Tom & Jere Painting, to perform indoor painting work on the property. 85. In contracting with Tom & Jere Painting, Defendant failed to adhere to the terms of the bidding process as outlined in the contract. 86. In contracting with Tom & Jere Painting, Defendant failed to pay YANEK his Fifteen (l 5%) Percent fee for work performed by Tom & Jere Painting, pursuant to the terms of the contract. 87. That Tom & Jere Painting submitted an invoice or invoices to the Defendant for work performed in the spring of 2002. 88. That Defendant paid such invoice(s) to Tom & Jere Painting. 89. Defendant's failure to adhere to the bidding process and failure to pay YANEK his Fifteen (15%) Percent fee for the work performed by Tom & Jere Painting was a breach of the terms of the contract, which is attached hereto as Exhibit "A." 12 SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA 90. In 2002, the Defendant also contracted directly with FLUSS Flooring to perform interior tile work on the property, which work was separate and distinct work performed on the exterior deck. 91. In contracting with FLUSS Flooring, Defendant failed to adhere to the terms of the bidding process as outlined in the contract. 92. In contracting with FLUSS Flooring, Defendant failed to pay YANEK his Fifteen (15%) Percent fee for work performed by FLUSS Flooring, pursuant to the terms of the contract. 93. That FLUSS Flooring submitted an invoice or invoices to the Defendant for work performed in the 2002. 94. That Defendant paid such invoice(s) to FLUSS Flooring. 95. Defendant's failure to adhere to the bidding process and failure to pay YANEK his Fifteen (15%) Pereem fee for the work performed by FLUSS Flooring was a breach of the terms of the contract, which is attached hereto as Exhibit "A." 96. In 2002, the Defendant also contracted directly with Douglas Baker Contracting to perform electrical work on the property. 97. In contracting with Douglas Baker Contracting, Defendant failed to adhere to the terms of the bidding process as outlined in the contract. 98. In contracting with Douglas Baker Contracting, Defendant failed to pay YANEK his Fifteen (15%) Percent fee for work performed by Douglas Baker Contracting, pursuant to the terms of the contract. 99. That Douglas Baker Contracting submitted an invoice or invoices to the Defendant for work performed. 13 SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA 100. That Defendant paid such invoice(s) to Douglas Baker Contracting. 101. Defendant's failure to adhere to the bidding process and failure to pay YANEK his Fifteen (15%) Percent fee for the work performed by Douglas Baker Contracting was a breach of the terms of the contract, which is attached hereto as Exhibit "A." 102. That Defendant's failure to abide by the terms of the contract has resulted in a breach of the contract and has cheated YANEK out of his Fifteen (15%) Percent fee for work performed by unauthorized subcontractors in an amount exceeding Twelve Thousand ($12,000) Dollars. WHEREFORE, YANEK demands judgment against Defendant for an amount equal to Fifteen (15%) Percent of the fees of all subcontractors who were hired directly by Defendant and who were paid directly by Defendant for work performed on this project with interest, attorneys' fees and costs. Date: By: Respectfully submitted, Attorney I.D. #77851 26 West High Street Carlisle, Pelmsylvania 17013 Phone: 717.243.6222 Attorneys for Plaintiff 14 VERIFICATION I verify that the statements made in this COMPLAINT 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. Dated: ,~. Steve SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA CONSTRUCTION AGREEMENT THIS CONSTRUCTION AGREEMENT, made this ~,r~ day of July, 2001, by and between YANEK CUSTOM HOMES, INC., with an address at 8 South Ridge Road, Boiling Springs, Cumberland County, Pennsylvania, 17007 (hereinafter called the "Contractor"), and DAVID T. LATSHA, with an address at 1141 Columbi~ Avenue, Lemoyne, Cumberland County, Pennsylvania, 17043 (hereinafter called "Owner"). WITNESSETH, that in consideration of the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto agree as follows: ARTICLE 1. SCOPE OF WORK. Contractor shall furnish all the materials and ~perform all the Work for completion of the improvements and remodeling work for an existing residential property of Owner located at 85 Greenwood Circle, Wormleysburg, Cumberland County, Pennsylvania, 17043, (herein the "Property" as more particularly described in Exhibit "A" attached hereto and made a part hereof, pursuant to the specifications attached hereto and made a part hereof as Exhibit "B" (herein the "Improvements") and shall do everything required herein to Owner's satisfaction. ARTICLE 2. PAYMENT OF CONTRACT PRICE; PROGRESS PAYMENTS. Owner agrees to pay to Contractor on a time and materials basis plus 15% for the Improvements set forth in Exhibit "B" (herein the "Contract Price"). In the event time and materials plus fifteen percent (15%) for the specified work is less than the foregoing amount, the lesser amount shall become the Contract Price. Owner, at his option, shall have the right to audit the Contractor's expenditures for time and materials in connection with the Improvements. Owner shall pay Contractor on a monthly basis for all time and materials expended to the date payment is requested plus fitfeen percent (15 %), within ten (10) days of Owner's receipt of all invoices and employee or subcontractor's time sheets verifying the amounts claimed due, provided however, that any such payments requested shall not exceed the itemized amounts set forth in Exhibit "B" attached hereto. Owner's payment of any amounts due hereunder shall be conditioned upon inspection by Owner or a qualified inspector retained by Owner, satisfactory to the foregoing persons, such inspection to be completed within five (5) days of Contractor's notice to Owner that certain work for which payment is requested has been completed. ARTICLE 3. SUBCONTRACTS AND OTHER AGREEMENTS. Those portions of the Work that the Contractor does not customarily perform with the Contractor's own personnel shall be performed under subcontracts or by other appropriate agreements with the Contractor. The Contractor shall obtain bids from Subcontractors and from suppliers of materials or equipment fabricated especially for the Work and shall deliver such bids to the Owner. The Owner will then determine, w/th the advice of the Contractor, which bids will be accepted. The owner may designate specific persons or entities from whom the Contractor shall obtain bids. The Contractor shall not be required to contract with anyone to whom the Contractor 2 has reasonable objection. The Contractor shall not contract with anyone to whom the Owner has reasonable objection. Ifa specific bidder among those whose bids are delivered by the Contractor to the Owner (1) is recommended to the Owner by the Contractor; (2) is qualified to perform that portion of the Work; and (3) has submitted a bid which conforms to the requirements of the Contract Documents without reservations or exceptions, but the Owner requires that another bid be accepted without reason for reasonable objection, then the Contractor may require that a Change Order be issued to address the price by the difference between the bid of the person or entity recommended to the Owner by the Contractor and the amount of the Subcontractor or other agreement actually signed for the person or entity designated by the Owner. ARTICLE 4. TiME OF COMPLETION. The work on the Improvements to be performed under this Agreement shall comnaence no later than Contractor shall complete all Improvements set forth in Exhibit "B" no later than March 31, 2002. The date of substantial completion shall be the date the Owner accepts occupancy of the property (herein "Substantial Completion".) The time limits stated herein shall be of the essence of this Agreement. Contractor recognizes and acknowledges that (i) time is of the essence in its performance of the Work; (ii) Owner will suffer damages in the event that Contractor's performance of the Work is not timely as herein provided; and (iii) the actual damages suffered by Owner in the event of any delay may be difficult to estimate accurately. Contractor hereby agrees to pay Owner or Owner may deduct from sums owed to Contractor as part consideration 3 for entering into this Agreement by way ofliquidated damages and not as a penalty or forfeiture for each calendar day after March 31, 2002, the sum of Two Hundred ($200.00) Dollars per day until such Work is completed to Owner's satisfaction. Notwithstanding the foregoing, Contractor shall not be responsible for delays in - construction due to extraordinary circumstances beyond his control caused by fire, adverse weather, or delays authorized by Owner. ARTICLE 5. CONTP,~CTOR'S WOP,2<i. The Contractor shall perform the Work in a good and workmanlike manner and in accordance with and required by the specifications attached hereto as Exhibit "B" and in compliance with all local laws and ordinances. The term "Work" as used herein shall mean: (i) ali machinery, appliances, fuel, transportation, power, light, water, telephone, heat and plant facilities required to perform this Agreement; (ii) the coordination of the Contractor's work with work of other trades and other contractors and subcontractors; (iii) the provision of competent, suitably qualified personnel to supervise and to lay out the work as herein defined, perform construction as required by this Agreement and at all times maintain good order and discipline at the site; (iv) all additional work and changes in the work which Owner may order as provided in Article 7 hereof; and (v) the performance to Owner's satisfaction of everything else required by this Agreement. ARTICLE 6. H.B. MCCLURE CONTRACT. The parties hereto agree that Owner shall enter into a separate contract for the renovations and repairs to the hearing and cooling systems on the Property with H.B. McClure, Inc. and that all work related thereto is 4 expressly not included in the definition of Contractor's Work. Contractor shall have oversight responsibility for the work performed pursuant to the H.B. McClure contract to ensure that the work specified therein is performed in accordance with the H.B. McClure contract. In consideration of the f.o_regoing responsibility, Owner shall pay Contractor a fee in the amount of ~ percent of the H.B. McCJure contract at the time of Substantial Completion of the Work. ARTICLE 7. CHANGES IN THE WORK. Owner may order changes in the Work hereunder in accordance with the provisions below. Should such change increase or decrease the amount or character of labor or material for such work, the Contract Price shall be adjusted accordingly. The amount of the increase or decrease in the Contract Price shall be determined on the basis of the Contractor's own costs of material and labor with a labor rate of completion of said modification. All additional work or deviation from the contract shall be completed in accordance with Article 5. If there is a deletion of work under the Agreement, the reduction in Contract Pr/ce shall be subtracted from the next installment payment due. Any change in the contract Work and any adjustment pursuant thereto shall be effected by a written amendment to the Agreement. Such amendment shall be furnished to the Contractor in duplicate signed by Owner and the accepted copy thereof shall be returned to Owner. ARTICLE 8. PAYMENT BY CONTRACTOR. Contractor shall provide and pay for all materials, labor and tools and other items necessary to complete the Work. In 5 addition, the Contractor shall pay all sales, consumer, use and other similar taxes arising out of the constraction process required by law and shall timely secure and pay for all permits, fees and licenses necessary for the execution and completion of the Work. The Contractor shall give all notices and comply with ail laws, ordinances, roles, regulations and orders of any public authority bearing on the performance of the Work. ARTICLE 9. CONTRACTOR'S EMPLOYEES AND SUBCONTRACTORS. The Contractor shall be responsible for the acts and omissions of his employees and all subcontractors engaged by him, their agents and employees, and ali other persons performing any of the Work under this Agreement on behalf of or with the Contractor. Contractor shall supply duly qualified and experienced artisans and workmen to carry out the Work. ARTICLE 10. CONTRACTOR'S DUTY TO LEAVE CLEAN PREMISES. The Contractor shall at all times keep the premises reasonably free from the accumulation of waste materials or rubbish caused by the operations of the Contractor. At the completion of the Work, the Contractor shall remove ali tools, construction equipment, machinery and surplus materials, and shall leave the Work "broom clean" or its equivalent. ARTICLE 11. NEW MATERIALS AND EOUIPMENT. The Contractor hereby warrants and guarantees to Owner that all materials and equipment incorporated in the work under the Agreement shall be new and both workmanship and materials shall be of good quality. 6 ARTICLE 12. iNSPECTION. Owner or Owner's agents shall have the right to inspect Contractor's work at all reasonable times during and after working hours. ARTICLE 13. CONTRACTOR'S WARRANTIES AND COMPLETION OF WORK. Contractor warrants that the Work shall be performed in accordance with specifications set forth herein and in Exhibit "B" in a good and workmattlike manner. Neither acceptance of nor payment for the Work or any part thereof, nor the partial or entire use or occupancy of the Property by Owner shall release Contractor from liability for any warranties of material or equipment installed or for workmanship which is faulty, unsound, improper, not good or not in accordance with the specifications for the Work. Contractor, at its expense, shall correct and replace all such portions of the Work not in conformity with this standard as determined by Owner or Owner's building inspector, whether performed by Contractor or its subcontractors and at its expense shall remedy any defect or work not conforming to this standard which shall appear within a one year period immediately following the date of Substantial Completion. Contractor shall complete such remedy within a reasonable time after receipt of notice from Owner of the defect or the Work failing to meet the standard herein provided but in no event later than three months after such notice. In the event ora latent defect not ascertainable at the time of Substantial Completion, Contractor agrees to remedy any such defect within one (1) year after date of discovery of such latent defect. Contractor hereby assigns to Owner ali rights which Contractor may have under manufacturers' wan-anties on appliances and other items of equipment included in the Property. Ali appliances and equipment installed in the Property shall be new. The warranties in this paragraph shall survive completion of the Work. 7 ARTICLE 14. CONTKACTOR'S INDEMNIFICATION AND FNSURANCE. The Contractor shall indemnify and hold Owner harmless from all losses, costs, claims or damages on account of injury to persons or property occurFmg in the performance of this Agreement, together with any and all attorney's fees incurred by the Owner on account thereof. The Contractor shall purchase and maintain such insurance as will protect him and the Owner from claims under Workmen's Compensation acts and other employee benefit acts, from claims for damages because of bodily injury, including death, and from claims for damages to property which may arise out of or result from the Contractor's operations under this Agreement, whether such operations be by himsel£or by any subcontractor or anyone directly or indirectly employed by any of them. This insurance shall be written for not less than any limits ofliability required by law, as applicable, and shall include the following minimum coverages: (a) bodily injury or death - $500,000/$1,000,000 (b) property damage - $500,000 Certificates of such insurance shall be filed with Owner and shall set forth the termination date of any such coverage. Owner shall be named as additional insureds on the foregoing policies of insurance as their interests appear. Owner shall be entitled to thirty (30) days prior notice of cancellation of any such policies of insurance. ARTICLE 15. OWNER'S INSURANCE. The Owner shall purchase and maintain liability insurance and property insurance on the value of the entire structure upon which work is to be performed. Owner's policy shall not cover any equipment or property of the Contractor used in the work. 8 ARTICLE 16. CONTRACTOR'S OTHER REPRESENTATIONS AND WARRANTIES. Contractor represents and warrants as follows: (a) Contractor is a corporation duly organized, validly existing and in good standing under Iaws of the Commonwealth of Pennsylvania and has the right, power and authority to enter into this Agreement and to perform its obligations hereunder. Contractor's President is duly authorized to execute this Agreement on its behalf. (b) Contractor's execution and delivery of this Agreement on the date hereof and its performance of its obligations hereunder have been duly and validly authorized by ail requisite corporate action of Contractor. (c) Contractor's execution and delivery of this Agreement and its performance of its obligations hereunder do not violate Contractor's by-laws, charter or any agreement, indenture, note, mortgage or other document to which Contractor is a party. (d) There is no development or threatened development of any nature which would adversely affect Contractor's business. These warranties shall survive Substantial Completion of the Work. 9 ARTICLE 17. STIPULATION AGAINST LIENS. The Contractor hereby agrees to execute an appropriate stipulation against liens simultaneously with the execution of this Agreement. The Contractor shall have and keep the building referred to, and the lands on which it is situated, free from any and all mechanics' liens and other liens by reason of its work or of any materials or other things used therein. If the Contractor fails to keep the property free from any liens, a sufficient amount of the Contract Price to pay the said liens and costs incurred by Owner due to Contractor's failure to do so shall be held in escrow by Mette, Evans & Woodside pending the release or satisfaction of the liens. The parties declare that no materials have been delivered to the said Property or work done on the Property and a stipulation against liens has been executed simultaneously herewith by the parties hereto and is to be recorded in the office of the Prothonotary of the said county within five (5) days from the date hereof, which shall be before any construction has been started. ARTICLE 18. ASSIGNMENT. The Owner or the Contractor may not assign this Agreement to anyone else without the previous written consent of the Contractor or Owner, respectively. ARTICLE 19. BENEFITS. Ali rights and liabilities herein given to or imposed upon, the respective parties hereto shall extend to and bind the respective heirs, executors, administrators, successors and assigns of the parties. 10 ARTICLE 20. CONSTRUCTION. This Agreement has been executed in the Commonwealth of Pennsylvania and shall be governed by the laws of that state. ARTICLE 2I. DEFAULT BY OWNER. If the Owner fails to make a payment to Contractor as herein provided through no fault of the Contractor, the Contractor may, upon seven (7) days' written notice to the Owner, terminate the Agreement and recover from the Owner payment for all work completed and for any proven loss sustained upon any materials, equipment, tools, and construction equipment and machinery, including reasonable profit and damages. ARTICLE 22. DEFAULT BY CONTRACTOR. If the Contractor shall fail to properly execute any of the terms of this Agreement, including a failure to perform the Work in a good and workmanlike manner, or become bankrupt or make an assi,m,2nent for the benefit of creditors, or otherwise become unable to carry out the work all of which are deemed to be a default under this Agreement or if the Contractor removes from the work absent breach of the Owner and without the written consent of the Owner, the Owner shall by notice in writing addressed to the Contractor provide for three (3) business days to cure the default and if not cured within that time, the Owner may terminate this Agreement, and all claims of the Contractor under the same shall thereupon cease. If the Contractor shall in any manner delay or neglect to Finish the said Improvements within the time hereinbefore provided, the Owner may by written notice to the Contractor require the Contractor to proceed with the work; said written notice shall permit Contractor three (3) business days within which to cure the default, and upon his failure to do so, the Owner shall have the right to employ any other contractor to continue and complete 11 the said work according to the said plans and specifications, or any alterations or additions thereto as hereinbefore provided. Owner shall also have the right to authorize such contractor to use any materials at the site provided that Owner pays Contractor the cost thereof. Contractor shall have the right to remove equipment from the construction site, and the Contractor shalI in such case forfeit and forego all his interest whatsoever under this Agreement. If the expense of completing the Contract, in addition to any payments made to the Contractor hereunder, shall exceed the original Contract Price, the Contractor shall be liable to the Owner for such excess ARTICLE 23. NOTICES. All written notices which may or shalI be given to any party to this Agreement shall be deemed to have been properly given if mailed to such party by postpaid certified mail, return receipt requested, at the addresses hereinafter stated or to such other address as one party may specify in a written notice to all other parties, and shall be effective upon mailing: CONTRACTOR: Steve Yanek Yanek Custom Homes, Inc. 8 South Ridge Road Boiling Springs, PA 17007 OWNER: David T. Latsha 1141 Columbus Avenue Lemoyne, PA 17043 12 With a copy to: Paula J. Leicht, Esquire Metre, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 IN WITNESS WHEREOF, we have set our hands and seals the date and year £u'st above written. WITNESS: ATTEST: 265176 OWNER: DAVID T. LATSHA CONTRACTOR: 13 David T. Latsha THIS DEED 717-7~7-7577 SAIDIS, SHUFF & MASLAND Made the f 5'1'14 day of C'c.l'='~'~ ,1999, BETWEEN GEORGE S. LATSHA, widower, of the Borough of~'ormleysburg, Cuuuty of Cumberland, ("Grantor"). AND DAVID T. LATSHA, of Lemoyne, PA., Cumberland County, Pennsylvania, ("Grantee"). WITNESS, that [n consideration of the sum of One and 00/100 Dui[az ($1.00) in hand paid, the receipt whereof is hereby acknowledged, and intending to be legally bound hereby, the Grantor does grant and convey to the Grantee, Iris heirs and assigns, his undivided fifty-one (51%) interest in: ALL that certain lot of land situate in the Borough of Wormleyshurg, formerly Pennsboro Township, Cumberland County, Pennsylvania, being the southern part of Lot No. 85 on :he Plan of Lots known as the Revised Plan of Pennsboro Manor, said Plan being recorded in the office of the Recorder of Deeds for Curoberland County in Plan Book 3, Page 6, more particularly bounded and described as follows: BEGINNING at a point on thc East side of Greeowood Circle, said point being 408 feet south of thc point of curve of the east side of the aforementioned Greenwood Circle and at thc southerly llne of]ands formerly o£the Graotor, now or late of Edwin S. Weber and Vera H. Weber; thence along said Weber land north 57 degrees 52 minutes east 300,01 feet to a point on thc westerly right-o£- way line of Pennsylvania Railroad Company; thence by the latter south 31 degrees 45 minutes East 112.36 feet to a point at the dividing line between lots 84 and 85; thence along the latter line south 56 degrees 45 min=tes west 300.01 feet to a stake oo thc cast side of Greenwood Circle; thence along tbe latter north 31 degrees 45 minutes west 118.22 feet to the place of BEGINNING. HAVING thereon erected a dwelling house No. 85 Greenwood Circle, Wormleysburg, Pennsylvania. BEING the same premises which Blancbe Latsha, a/Ida Blanche H. Latsha by her Deed dated November 23, 1982 aod recorded in Deed Book Z, Volume 29, Page 125, granted and conveyed unto George S. Latsha and Blanche H. Latsha, husband and wife. The said Blanche H. Larsha died May 31, 1997 h'zr undivided interest therein vesting iix George S. Latsha, the Grantor hereio, and the said George S. Latsha by deed dated June 4, 1998, granted an conveyed an undivided fortymlne Jul 03 Ol Ol:O8p 717-737-7577 $ '~-~1° ~LS' ~ ATTACHMENT "A" SCHEDULE OF RATES Principal ....................................................................... $ 45.00 ~ Hour Lead Carpenter ............................................................ $ 35:00 t Hour Car~$ Hetper ........................................................ $ 25.00 t Hour Secretariah ................................................................... $ 20.0Ot N0ur Travel ........................................................................... $ 0~30 Per Mile Exhibit B Beams Carpet, Inc. P.O. Box 697 Carlisk, PA 17013 Fax (~17) July 26, '20~2 Dave L~tsha 85 Greenwood Circle Wormleysburs, PA 17043 Quote for deck 23 cma. (356.5 ~/f)Cerdomu~ Pie~ra Rosso 16x24 ...................................... $ 2,491.94 44¢tm. (454.52 ~/f)Cerdomu~ Pie~ra Rolo 16x16 .................................... $ 2,177.16 tl etna. (104.38 s/f)Ce~xlomus PleUra Rosco 8x16 ..................................... $ 49~.50 I1 etna. (104.35 s/f)Cerdomu~PielraRosso $x8 ....................................... $ 499.50 6 bags - #56l Parchn~at gzout .................................................................. $ 150.00 40 b~gs - Latierele #272 gray morta~ ......................................................... $ 926.0~ 5 g~L - #1667 a~itive ............................................................................... $ 969 s/f (3 rolls) ~di 200 .......................................................................... $1,$07,50 54 s/f (1 roil) I(~rdi 200/5M ....................................................................... $ 112,55 969 ~/f (3 roll~) 54 ~/¢(1 roll) Ditra 5M .............................................................................. $ 110.30 112 If(14 p~.)Bara-Rak Balcony proffl~ ................................................... $1,026.20 shi~ing ....................................................................... ; ...... $ 50.00 10 pcs, Dll~x-BW$ rnov~raent profile BWSl25 - color ? ............................ $ 139,50 shipping ............................................................................. $ 50,00 7 pcs. sckluter #A123 ................................................................................ $ 56,00 ]mtallatio~ K~dl. $1.00 ~/f ......................................................................................... $1,019.55 Ditra - 31.00 ~/f. ......................................................................................... $1,019.58 tile - $ 2,00 ~/f ......................................................................................... $ 2,039.16 gwut o 3.50 s/f ........................................................................................... $ 509.79 Total ........................................................................................... $1 &,$f~.~ *S0% deposit requiFed on oH orderL *Any changu or additions may be extra. 1464 Trin~le Road * Ca~lisle. PA 17013 Exhibit C PAGE 02 · 04/25/2004 ~.4:44 71725E147'97 Exhibit YANEK CUSTOM HOMES INC 8 SOUTH RIDG! ROAD BOILING SPRINI}S PA 17007-O522 ii SOUTH RIDGE ROAD BOILING SPRINGS PA 117D07-0522 The Lumber Yard of Carlisle Phone 717-243-4140 PO Box 2204 York PA 17~O5-220¢ , ~)E~c ~ Invoice Bold-zo Aoeoun! No. 1001092 Numbe~lOat. 923518159 / 10/1&/2002 POIR~f~f~e no./~ate la~shall i ioi~t 823~B551 / 1D/14/2002 Or~ number/Date 193~485 / Item M~l~erial Desaripfian 0O0010 000020 OOO03O 000O40 000050 000060 505077 WI-40 2-1/2"I x $-1/2' JaiaT 17 ~cs 16' 34 pc~ 1¢' 6 pcs 18' I ~al 12' 50~094 GP RIM 1~1/$' [ 9-1/2" X 12' 112011 3/~" x 4' x 8' T&G Advante=h Flooring 10192¢ 3 1/4" SmD=th VC Bright Common SIP 83C~.5 101916 2 3/8' Ring MC Brigh~ Common $/P 63065 118445 29 Dz DSt $)F-¢60 HD Subfloor Adhesive Unit Price/UniT Value 868 FT 1.14 SBS,E2 11 PCS 40 PCS 1 PCS I PCS 12 PCS 14.96 16.23 649.20 23.60 23.60 41.O9 41.O9 2,E3 30.36 rT~t~X NO 6818] ~0o3 BOILING BPRINC~S PA 17007-0622 Total amount (not includi?g sales taX) 6,000 % T~l amoum (Including e~lel tax) 10/1412002 1,898,33 1,8~8,33 113.90 2,012,23 o2/21/o3 PRI 16:o4 [T~/RX NO 6818] ~oo4 YANEK CUSTOM HOMES INC 6 SOUTH RIDG~ ROAD BOLLING SPRINGS PA 17007-0622 6 SOUTH RIDGE ROAD BOILING SPRINGS PA 17007-0522 The Lumbar Yard of Carliaia Phone 717-2~,3-41 ~.0 PO ~z 2204 York PA 17~06-2204 Invoice Sold.to Account No. 1001092 Numb~w/Dete 62351880 I 1011¢12002 PO/Refereeu no./Oat. latshmll D~lv~ na~ 82356246 / ~0/1~/2002 Or'er number/~me ~tam M~arial Des=ription 000010 111688 ~ 2 x 8 x 18 SPF Western 000020 120502 S Mil 20x100 Clear PoI¥ REX&M To~.l amount (not including salem taxi 6.000 Total amount (including i Sales taX} Value PCS 7,96 63.88 ROL 53.¢9 53,49 117.17 117,17 7,03 12¢,20 YANEK CUSTOM HOMES INC 8 SOUTH RIDG~ ROAD BOILING SPRINGS PA 17007-0B22 8 SOUTH RIDGE ROAD! BDIUNG SPRINGS PA 17007-0522 O0OO10 111BBB 2 x B x 18 Total amount (not Including Tax Total 8moun~ (including .Th" Lumb~r Yard of Carlisle Phone 717-243-414.0 PO Ik, x 2204 York PA 1740E-2204 Qty Credit memo Sold-to Account Nc, 1001O92 Numb~lDetm 923541B0 / 10/I ;/2002 PO/RefMMI'-e no./Date Jatahall D~ n~te no. IOe~ 841E9432 / 10/15/2002 O~ auto. IDaho 60167&70 / 10/15/2~2 I~vo~ numb~ata B23BIBBO / 10/1~/2~2 B Unit PCS 83.68 Value 63.69- B3.ES~ 3,92- 6'/.SO- YANEK CUETOI~I HOMES 8 SOUTH RIDG ROAD BOILING SPRINI;S PA 17007-0622 8 SOUTH RIDGE ROAD BOILING SPRINGS PA 7DQ7-Q522 Item Materiel Daeeriptlon 000020 111697 2 x 8 - 18 SpF Western Invoice 82359928 / 10/1612002 Or'er number/Date 19434,75 / 10/1~12002 Unit Price/Unit Value B PCS 11,92 95.36 Tote[ amoun; {not Including ealee tax) Tax 6.000 Total amount (including ~ales tax) % 95,38 9E.3S 101 YANEK CUSTOM HOMES INC B SOUTH RIDI3E ROAD SOILING SPRINGS PA 170D?-0522 $ SOUTH RIDGE ROAD BOILING SPRINGS PA '007-0522 Item Material Description O0O010 120602 6 Mil 20xlOb Clear Poly 000020 111781 1 X 3 x $ SD Edge Lath BlartohaT East Total amount (not including sales ~ex), Tax 8,000 Total amount (Including sales taX} The Lumber Yard of Carlisle Phone ? t 7-243-4140 PO Box 2204 York PA ~ 7~05-2204 Invoice ~oM-~o A~t No. 1001092 Numbe~/Date 92429092 / 12/03/2002 le~c~ D~ no~e naa/Date 82436622 / 12/03/2002 ~d~ ~ber/Dat. 2~8102 / 12/03/2~2 Qty Unit Prico/Unit Value I ROL 94.63 64.83 24 PCS 1.28 30;72 95.59 95.$5 5,73 101 Thant~ you for yeuf e~emem The LU~lbm Yard An lBO BOOt Carlifim~ CeenFany YANEK CUSTOM HOldES INC B SOUTH RIDG~ ROAD BDILING SPRINGS PA 17007-0522 ~,.~l,~i~,,l~,, ~o~ ,.p~.,' ..... .......~.~: ...... , · g SOUTH RIDGE ROAD BO UNO SPRINGS PA 7007-0522 Item Material DeecrlptiO~ 000010 120602 ' 6 Mil 20xlOO~ Clear Total arneun: {not including sales Tax) Tax 8.O00 The Lumber Yard of Carlisle Phone 717-243-41 a,O PO Box 2204 York PA 17405-Z204 Invoice Sold-to Account No. 1001092 Numbs/Date 92436997 / 12/09/2002 PO/~ef.~ence la, shall D~v.~ n~e no./Date B24428EO / 12/O9/2002 O~d~ nu~/Dete 201 3626 / 12/O9/2D02 Unit Price/Urfi~ Value 1 ROL 52.48 52,48 62,~8 52.48 3,15 5~.63 & $O ,L Lumber · MIIIwork · Bulldmra' Guppllem Ren~le · Hardware · Flooring · Kitchens Mailing Addreas: P,O, Box 1924 · York, PA 17405 "Visit us at www,Jhmson,com' IJ4OCTi~'~ 7.69/BOX 7. E~ % ANNUAL ~CENTAOE P, AT~ ~ M e -g SON, ~ C~I~IEEDA~ DO~TO~ Lumber · MIIIwc~l( · Bulldem' Suppllee Renlaie ,. He~twmre · Flooring · Kltehenl Mailing Address: P.O. Box 1924 · York, PA 17405 "Visit us at www.l, hmson.com" ,L~,, ~ % PER MQNTH TER~S: ~ay~ble In Full 1mb ol e~liowlng Monlh. Minimum Finance ~Wge TRUCTION SUPPLIES, INC. D le:L~ ~S m ~.70o7! RECEIVED BY' TImbaLE 33.,IA 33.'~ mit Cl'~P~, t~'T~TE~ 1 2 3 4 7 17 ~ 19 KEEP THI~ SLIP FOR REFERENCE ' PRICE ~MDUNT DOUGLAS M. BAKER CONTRACTING BILL TO; YANEK, CUSTOM HOMES, INC, 8 SOUTH BRIDOE ROAD BOIL[N O SPRINGS, PA~ 17007 · DATE: NOV, 11, ~002 JOB REFERENCE:', ~L JOB DESCRIPTIO~ECK THE FOLLOWIN~ BLL S FOR: {) DEMD EXISTING WIRING UNDER REAR DECK, NO CHARGE. 2) REWIRE NEWiDECK IN DUPLICATE OF ORIGINAL PATTERN. 3) INSTALL 18 R~CESSED LIGHTS. 4) INSTALL 4 QL~ARTZ LIGHT SET-UPS IN BAND BOARD OF DECK, 5) RE~INSTALLGAZEBO WIRING TO FRONT OF DECK, AMOUNT DUE FC~R MATERIAL: AMOUNT DUE FC~R I/2 LABOR; TOTAL AMOUNT DUE IS: $24o.0o MAIL TO: 531 YORK ROAD CARLISLE, PA. 17013 Renta! Service THE ITEMS RENTED ARE RENTED AT THE RATES RET FORTH BELOW AN[ s., CrT E ~ N C NI~m0N ~ E BE¥~ER~B ~I~E OF ~ p~EBSlQN. ~U~ECT TO A MtN MUM CHARGE. PENNSYLVANIA CRIMINAL LAW DEFINES ANY OF THE FOLLOWING ACTS AS ]~ 1. Signing a rental agreement with · n&me other than your ~, 2, Failing ~ ~ re~t~ pro~ w~i~ the s~eO time. 3. Ual~ a~on af ~y ~lnd to evolo ~yment. A CLONING FEE ~LL BE GHARGE~ ON EQUIPMENT RETURNED DIR~ Do not re~ on othem lo m~m equlpme~ ranted, ~e responslbll~ Is youm. WEEKLY & MOlC'HLY RATES ONLY APPLY IF RENT IS PAID IN ADVA~C THIS EQUIPMEkrI' FOR RENTAL ONLY - NOT FOR SALE INVOICE Invoice #: 1711AO-IN DATE: JOB ADDP-,~$S / Two Story - Latsha 85 Greenwood Ci~l-~ ~ on or b~tbre OI/I~;~0G3, can ~ a dls~ouat of $15.00 · 1-~% nmnthly fluSn~ char s.o.~: TI~ItM~ DATX COMPLETE 1711AO 2% 10 Nz~ 30 12/03/2002 ffpak] by 12/23/2002, you ~d an~ pay $735.00 [~ ~[ be Idd~ to n~ lnvofae ~er 30 da~ old. ADD ON Nm Invoice:" 750,00 Lela Dim~unc: 0.0O Freight: 0,00 l~alr, a Tax: 0,00 Wickard Bras, Siding 684 Lym:s P.d. Dill~burg, PA 17019 (?l 7) 432-336S Bill Fo~ Yaa~k Custom Hom~s, Inc. 8 South Ridge Rd. ~ii~ S~ PA 17~7 Date: Pe~ 18, Bill D~ptlo~: Job~ ~ 465 R. ~ ~ (h~r & ~L) 118 ~ ofPqr~ ~ covered (~r & m~.) 1~ ~. ofB~ ~ ~ (~ I ink) Total Due: $2375.00 675,00 S3S~,00 ,04/29/2004 ~2:46 7~72584797 PAGE 02 INVOICE I~/h 454~ DATE- 09/24/02 ~l'Eim 10819 CU~T ~- E10~19 PO~ TAX*/,= 6.00 TAXk TEI~ COD MRKT= PT1 BILUNG ADDRE~ YANEK CUSTOM HOMES IN{~ B S RIDGE RD BOLLING SPRINGS, PA 17007 Plxme: 258.3940 LATSHA (DEUOUSK)N) GREENWOOD CR WORMLEYSBURG, PA 17043 UNIT NUMBER DESCRIPTION ITEM RATE "/*TAX AMOUNT 10381 09/17/02 10/14/02 PTI.RENT' 6~.00//MTH 6.00 68,00 103~1 09/17/02 10/14/02 PTI -DAMG 2,721/UTH 6.00 2.72 TAX CHAR~ED 4,24 Total ~h[i Inw~e: 74.96 ALL INVOICES OVER ~) DAYS LATE INCUR A RNANCE CHARGE OF I$,01/i/YR OR A MINIMUM CHARGE OF S.O0 PER INVOICE YAREK CUSTOM HOMES INC DETACH AND RETURN WITH PAYMENT .04/2B/200~ 12:46 7172S8,~797 PA~E INVOICE G.O0 TERMS= CO0 CUSq' I- El 081 ~ MRKT= PT1 BILUNG ADDRI~8 YANEK CUSTOM HOMES INC 8 S RIDO~ RD BOLLING SP~NQ8, PA 17007 258-3940 WORML.EYGSURG, PA 17O43 UNII' 10381 10381 0T/22/02 08/2~/02 07/'22/02 Pq'I.RENT IS2,00t/MTH $.00 08/25/02 07/22/02 PTI-DAMG 2.48#MTH 6.00 TAX CHARGED 07/22/02 PORTABLE BILLING CHANGE 1.000 Poflat~e rental~ vdl ~,nge $~.08 ~ July 12, 2002, Thb k the f~t re, tm dmmga in ove~' t0 yearn, 2.48 3,87 TOlII thll,lfwglee: 68.35 ALL INVOICE8 OVER 31 DAY8 LATE INCUR A RNANCE CI~U~ OF 15.f'/~11 OR A MINIMUM Ct, lARGE OF 5,00 03 YANEK CUSTOM HOMES INC DETACH AND RETURN WITH PAYMENT Involm~ 449797 ~ 10819 CuttlE10819 statment dale 06/29/O2 Sub feral 6'~ i~voice Futura 0.08 Tax Cu~en{ 08.35 P~d mmunt: 30+ 0.00 Currant InvOm bmnoe: ~0+ 0.00 Prea~ balanoe ~0+ 0.00 TeCtal O~ T~ml dui: 4I,~S Pa~ Bm~m~ 64,48 3,87 0.08 68.35 0.00 88.35 04/29/2004 i2:4B 7172584797 PAGE 04 800-433-20?0 TXX '7'1 '1-'7 $6-&~99 KBC]r~rzcBBI~RG ~ 3iA. 17055 INVOICE INVl~l 451223 DATE- 07/'~ 10819 DUST l- E10819 TAX~ 6.00 TAXI. 'I~RM~ COD MRN'T= PT1 BILUNG ADI~IEIi9 YANEK CUSTOM HOMES INC 8 S RIDGE RD BOILING SPRINGS. PA 17007 LATSHA (DEMOLI$1Ofl) 85 QREENWOOO CR WORMLEYSBURG. PA 17043 UNIT NUMBER D~¢RIRTION ITEM RA'I'~ %TAX AMOUNT 103~1 07/23~2 0~19/0~ PTI-~ENT 88.00//MTH 6.00 1O381 O7/23/O2 08/1~/0~ PTt-OAMQ Z?21/MTH 6.00 2.?2 TAX CHARGED 4.24 Total t~ involoe: 74.96 AU. INVOICE8 OVeR 30 DAYS LATE iNCUR A F1NANCE Ci,~,RGE OF 16.0%fir OR k MINIMUM CHARGE OF 5,00 PER iNVOI(~ YANEK CUSTOM HOMES IIqC DETACH AND RETURN WITH PAYMENT Irr~c~. 451223 ~ 10819 Cu~tg,,E10816 mt~f~ dire 07~02 ~t~l~ 70.72 F~m 0.~ T~ Cu~ 74.~ P~ ~: 0,~ ~ 0.~ Cu~t ~ ~: 74.~ ~ 0.~ P~ ~ 0.~ .84/29/2004 12:46 7172504797 3 ~l~r,tq /LO INVOICE ~1~i1~ 10819 TERMS= GOD PAGE 05 ~ CU~l' IN, E10819 TAX~ MRKT~ FT1 BILUNG ADDRESS YANEK CUSTOM HOMES INC RIDGE RD I~ILINGi SPRINGS, PA 17007 P~: 25~-3940 LA'r~HA (DEMOLI$1ON) GREENWOOD CR WORMLEYSSURG, PA 17043 ~ 258.3940 UNIT NUMBER DE.qCRIPllON ITEM RA'I'~ '/,TAX ~kMOUNT 10581 08/20/02 09/16/02 PTI..DAMG 2,72//MTH 6.OO 2,72 TAX CHARGIED 4,24 Totld ~hll~ I~,votg~l: 74.96 ALL INVOICES OVER 30 DAYS LATE INCUR A fiNANCE CIHARGE OF 16.0%1YR OR A MINIMUM CHARGE OF 6.00 PER INVOICE YANEK CUSTOM HOMES INO DETACH AND RETURN WITH PAYMENT Involc~ 4~2846 81te~, 10819 Guet~E10619 ~tiib~ent date 06/24/02 ~ub tolal 1hi8 Invoir~ 70.72 Future 0,00 T~x 4.24 Cunent 74.96 Paid armx~t 0,00 30~ 0.00 Current invoioe beJmxe: 74.98 ~ o.oo Previous balano~ 0.0O ~ 0.00 Total Due Total duo2 14.06 Paid anlou~t: CARLISLE MASONRY 246 LEEDS RO~D~ NE'WVlLLE, PAit7241 JOB INVOICE DECEMBER 19, 2003 YANEK CUSTC ~M HOMES, INC. a SOUTH RIDGE ROAD BOLLING SPRIi Ig$, PA 17007 JOB: I.J~TSHA BRICKWORK WORMLEYBURG ITEMS: FURNISH & INSTALL PENNSBURY HANDMADE BRICK WiTH GG 407 COLORED MORTAR ON DECK COLUMNS EXTRA CHARGE FOR LABOR CUTTING BRICK TOTAL CHARGE FOR JOB COST / ~ $1,700.00 ALL EXTRA M~TERIAL TO BE HAULED OFFSITE BY OTHERS. TERM~ ARE NET 30 DAYS. THANK YOU. O. C ] , 000' ~00-00 + 560 - O0 Exhibit E December 29, 2003 THE CINCINNATI INSURANCE COMPANIES THE CINCINNATI INSURANCE COMPANY THE CINCINNATI INDEMNITY COMPANY THE CINCINNATI CASUALTY COMPANY THE CINCINNATI LIFE INSURANCE COMPANY P.O. Box 503 Scotland, PA 17254 Mr. David Latsha 85 Greenwood Circle Wormleysburg, PA 17043-1140 Policyholder: Policy Number: Date of Loss: Yanek Custom Homes, Inc. CPP0693146 4/2/02 Dear Mr. Latsha: This letter will confirm our telephone conversation of December 23, 2003 with regard to the above matter. As promised, I enclose copies of all invoices presented to me by Steve Yanek in justification of' the repair o£ your deck fi-om water damage. The totaI o£ the invoices covered by this insurance comes to $17,018.09. A release o£all claims against Yanek Custom Homes, Inc. for this amount is enclosed as well. Assuming that you find the enclosed to be in line, I will deliver to you a check for the sum of $17,018.09 in exchange for the properly executed release, at our meeting on Tuesday, January 6, 2004 at 9:00 am. Please contact me prior to our arranged meeting should you have any questions or concerns. s® Brian S. Knepper, Senior Claims Representative (717) 263-1011 (7J 7) 263-0300fax brian_knepper~cinfin.com Mr. Steve Yanek Yanek Custom l-tomes, Inc. 8 South Ridge Road Boiling Springs, PA 17007 W/enclosures Exhibit F JOHN E. SLIKE ROBERT C. SAIDIS GEOFFREY S. SHUFF JAMES D. FLOWER, JR CAROL J. LINDSAY MATTHEW J. ESHELMAN~ KIRK S. SOHONAGE THOMAS E. FLOWER LINDSAY GINGRICH MACLAY JACLYN SMrrH LAW OFFICES SAIDIS, SHUFF, FLOWER & LINDSAY A PROFESSIONAL CORPORATION 26 WEST HIGH STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486 EMAIL: attorney@sail-law.corn www.ssfl-law.com CAM~ IqlLL OFFICE: 2109 MARKET STREET CAMP HILL, PA 17012 TELEPHONE: (717)737-3405 FACSIMILE: (717)737-3407 REPLY TO CARLISLE January 16, 2004 Mr. David Latsha 85 Greenwood Circle Wormleysburg, Permsylvauia 17043 RE: YANEK CUSTOM }~OMES, INC. Dear Mr. Latsha: Recently the undersigned was engaged by Yanek Custom Homes, Inc. (hereinafter "Yanek") to inquire as to what extent you intend to satisfy certain mounts owed to Yanek for the remodeling work performed on your home. Pursuant to a contract entered into between yourself and Yanek dated July 6, 2001, you owe Yanek a sum in the mount of Fourteen Thousand Seven Hundred Thirteen and 43/100 ($14,713.43) Dollars for work performed. Even though "time was of the essence" and work on your home was to be completed by March 3 I, 2002, Yanek cannot be held responsible for failure to meet such deadline do to changes in the original scope of work authorized by you, the failure of the exterior deck due to work performed by others and the "extraordinary weather circumstances" encountered during Yanek's correction of the aforementioned failure. Further, beyond the aforementioned contracted work, Yanek, on good faith, reconstructed a damaged deck for which you recently received an insurance reimbursement check in the amount of Seventeen Thousand Eighteen and 09/100 ($17,018.09) Dollars, wh/ch Yanek believes it is entitled to under the theory of quantum meruit. Plus, Yanek also corrected mistakes made by the flooring company, which cost Yanek an additional One Thousand Twenty-Nine and 32/I 00 ($1,029.32) Dollars. In total, Yanek's records indicate that you owe the company Thirty-Two Thousand Seven Hundred Sixty and 84/100 ($32,760.84) Dollars. In closing, please note that th/s letter is not an attempt to collect a debt, rather it should be considered an inquiry of what you intend to pay Yanek for work completed on your home. Mr. David Latsha Jaluary 16, 2004 Page 2 Yanek has no desire to become involved in a contentious matter with you and to that end has requested that all correspondence be directed to my office. Kindly respond as to your position within ten days. Thank you. Very truly yours, Saidis, Shuff. Flower & Lindsay Kirk S. Sohonage, Esquire KSS: ahg Cc: Steve Yanek Exhibit G , FF4BI'q :KEITH CDOK FRX NO. :-.~Et2--1~643 F~b. ~.? 2~304 ).0: $~,P~'l F1 K. E. COOK~ EXCAVATING 388 8outh York Road Dillsbul~, PA 17018 (717) INVOICE TO: David T, Latsha 1t41 Columbus Avenue Lemoyne, PA 17043 IDate: May 18, 2002 Bne.,l(hoe Rate: $.55 p~r hour Date of Job: 4/25/02 ~ hours- graoe~ rear',~ E~ipment move 4/26/02 6 ~ hours- re~dr'~vay 6/~2 8 h~um. tewlle~t ahae 9 % hours- le~mlled Ihlllll 50 tOn~- driveway sl~n~ THANK YOUI OFFICE COPY $ 330.01) 55.00 357,50 522.50 $ 4,7t$.$t Net Due within 1 ~ clayll; I ~ % monthly ohar~ ~ ~0 Onyx. SHERIFF'S RETURN - REGULAR CASE NO: 2004-01913 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND YANEK CUSTOM HOMES INC VS LATSHA DAVID A SHANNON SHERTZER , Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE LATSHA DAVID A DEFENDANT , at 1345:00 HOURS, at 85 GREENWOOD CIRCLE WORMLEYSBURG, PA 17043 DAVID A LATSHA a Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon the on the 5th day of May , 2004 by handing to true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff,s Costs: So Answers: Docketing 18.00 Service 11.04 Affidavit o00 Surcharge 10.00 R. Thomas Kline .00 39.04 05/06/2004 SAIDIS SHUFF FLOWER LINDSAY ~ me this ~_~ ~ day of ~ Deputy Sheriff YANEK CUSTOM HOMES, INC., Plaintiff V. DAVID A. LATSHA, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Docket No. 04-191.3 Civil Term Civil Action - Law DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT And now comes Defendant David T. Latsha (incorrectly referred to in Plaintiff's complaint as "David A. Latsha"), through his counsel, Metre, Evans & Woodside, P.C., and files these preliminary objections, in support of which he avers as follows: I. MOTION TO STRIKE 1. Plaintiff's complaint contains three counts, two alleging breaches of contract and one in quantum meruit. 2. The prayer for relief with regard to each count of Plaintiff's complaint seeks attorneys' fees in addition to the amounts claimed therein. 3. Under Pennsylvania law, attorneys' fees are not recoverable unless specifically provided for by contract or statute. 4. The contract between the parties to this action is attached as Exhibit "A" to Plaintiff's complaint, and contains no provision upon which Plaintiff Yanek Custom Homes, Inc. can base a request for attorneys' fees. 5. There is no statutory authority for attorneys' fees to be awarded in favor of Plaintiff Yanek Custom Homes, Inc., even if it is successful in proving its underlying claims. 6. Accordingly, the inclusion in the prayers for relief of a claim for attorneys' fees is not in accordance with law and should be stricken from Plaintiff's complaint in accordance with Pa. R.C.P. 1028(a)(2). WHEREFORE, Defendant David T. Latsha respectfully requests this Court to grant his preliminary objections and to strike the request for attorneys' fees from Plaintiff's complaint. II. DEMURRER TO COUNT III 7. Count III of Plaintiff's complaint alleges a breach of contract by reason of Defendant David T. Lasha's entering into direct contractual agreements with certain contractors on the project, which is alleged to be a violation of Article 3 of the contract between the parties. 8. Count III of Plaintiffs complaint seeks a 15 percent fee for Plaintiffto be multiplied by the fees paid from Defendant David T. Lasha to various contractors named in Count III of Plaintiff's complaint. 9. Nowhere in Count III of Plaintiff's complaint does Plaintiffallege that Plaintiff had any supervisory responsibility with regard to the contractors in question. 10. Nowhere in Count III of Plaintiff's complaint does Plaintiff allege that Plaintiff objected to the direct retention of contractors by David T. Lasha during the project. 11. Nowhere in Count III of Plaintiff' s complaint does Plaintiff allege that Plaintiff has ever, up to the date of the filing of its complaint in this action, invoiced David T. Lasha for the 15 percent fees allegedly due. 12. Article 2 of the contract between the parties, att~tched as Exhibit "A" to Plaintiffs complaint, requires the contractor to give notice to the owner when work for which payment is requested has been completed. No such notice was given by Plaintiffwith respect to the work of the other contractors for which Plaintiff now seeks payment. 13. Accordingly, Plaintiff cannot establish the contractual duty on the part of Defendant to pay Plaintiffthe 15 percent fee claimed, nor can Plaintiff establish any breach of contract by Defendant. 14. Count III of Plaintiff's complaint fails to state a cause of action upon which relief can be granted. WHEREFORE, Defendant David T. Latsha respectfully :requests that this Court grant his preliminary objection in the nature of a demurrer as to Count III of Plaintiff's complaint and further requests that the Court dismiss Count III of Plaintiff's complaint pursuant to Rule 1028(a)(4). By: Respectfully submitted, METTE, EVANS & WOODSIDE ~Vlichael D. Reed, Esquire Sup. Ct. I.D. No. 35193 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant David T. Latsha Date: May 26, 2004 C~ERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements 'of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Kirk S. Sohonage, Esquire Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 Date: May 26, 2004 By: METTLE, EVANS & WOODSIDE 1 D. Reed, Esqui~~ Sup. Ct. I.D. No. 35193 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0!950 (717) 232-5000 Attorneys for Defendant David T. Latsha 399400vl PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please listthewithinmatterforthene~tAr:3~uentCourt' CAPTION OF CASE (entire captionmustbestatedin~ll]) Yanek Custom Homes, Inc. , ( p1 a~ntiff) David A. Latsha, ( Defendant ) No. 04-1913 Civil Term State matter to be argued (i.e., plaintiff's ~tion for new trlal, defend:nnt's d~'a~r to cu~l~int, etc. ): Defend&nt's Preti~ainary Objections to Plaintiff's Complaint. 2. Identify counsel who w~]] arc3ue case: (a) for p]m~ntJ-ff: Kirk S. Sohonage, Esquire ~z~-ess: Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 (b) for defe~wRmnt: Michael D. Reed, Esquire ~t~es$: Mette Evans & Woodside 3601 N. Front Street, PO Box 5950 Harrisburg, PA 17110--0950 I w~ll notify all Darties in writing within tmo days that this case has been l ~-~ted for az~jtwnent. 4. Arg~nent Court ~ate: D~ted: June 16, 2004 Att°z~n~Y/fd~ Plaintiff YANEK CUSTOM HOMES, INC., PLAINTIFF V. DAVID A. LATSHA, DEFENDANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : : : 04-1913 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO P.~LLAINTIFF,S COM__PIj~I~NT BEFORE BAYLEY j. ORDER OF COUR-~i AND NOW, this '-~--~day of August, 2004, IT IS ORDERED: (1) The motion of defendant to strike the claim of plaintiff for attorney fees from all counts of the complaint, IS GRANTED. The claims for attorney fees, ARE STRICKEN. (2) The motion of defendant for a demurrer to count II/of plaintiff's complaint, IS DENIED. u,/~_~( S. Sohonage, Esquire For Plaintiff ~/~chae/D. Reed, Esquire For Defendant :saJ g r B. Bay .~ YANEK CUSTOM HOMES, INC., : Plaintiff : V. DAVID A. LATSHA, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Docket No. 04-1913 Civil Term Civil Action - Law TO: NOTICE TO PLEAD Kirk S. Sohonage, Esquire Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 You are hereby notified to plead to the within document within twenty (20) days after service hereof, or a default judgment may be entered against you. Date: September 1, 2004 By: METTE, EVANS & WOODSIDE Michael D. Reed, Esquire Sup. Ct. I.D. No. 35193 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant David A. Latsha 405687vi YANEK CUSTOM HOMES, INC., : Plaintiff : V. DAVID A. LATSHA, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Docket No. 04-1913 Civil Term Civil Action - Law ,ANSWER WITH NEW MATTER AND COUNTERCLAI~ 1. Admitted in part and denied in part. It is admitted that Yanek is a building contractor with a place of business located at 8 South Ridge Road, Boiling Springs, Cumberland County, Pennsylvania. As to Yanek's licensure, Defendant is w/thout knowledge or information sufficient to form a belief as to the truth of the averments, and they are therefore denied, with proof thereof demanded at trial. 2. Admitted. However, Defendant's correct name is David T. Latsha. 3. Admitted in part and denied in part. It is admitted that on or about July, 2001, Yanek and Defendant entered into a written contract for the completion of improvements and remodeling work for an existing residential property located at 85 Greenwood Cimle, Wormleysburg, Cumberland County, Pennsylvania. It is specifically denied that the document attached as Exhibit "A" to Plaintiff's Complaint is a true and correct copy of the contract between the parties. By way of further answer, the document represents a portion of the contract between the parties, but fails to include the budget estimate of June 28, 2001 which was also a part of the contract. 4. Admitted. .COUNT I reference. The responses in paragraphs 1 through 4 above are incorporated herein by 6. Denied. It is specifically denied that Yanek performed all work and provided all material necessary for the remodeling of the structure and that all work was performed in a workmanlike manner. To the contrary, Yanek failed to complete all work required under the contract and, in numerous instances, failed to perform in a worlananlike manner. 7. Denied. It is specifically denied that all of the work was from time to time submitted for inspection and was duly approved by Defendant to be correct. To the contrary, not all work was submitted for inspection, and it was not Defendant's responsibility to inspect or approve the work. By way of further answer, to the extent the Defendant accepted and paid for the work, he did so upon the representation of Yanek that the work was properly completed. 8. Denied as stated. The contract, being an instrument in writing, speaks for itself. Therefore, to the extent that the averments of paragraph 8 mischaracterize or are inconsistent with the contract, they are specifically denied. 2 9. Admitted in part and denied in part. It is admitted that Yanek submitted his bill to Defendant on or about June, 2002. It is specifically denied that: Yanek had completed the remodeling and improvements on the interior of the home at that time. It is further specifically denied that Defendant refused to pay Yanek pursuant to the contract or informed Yanek that he would not pay anything further. To the contrary, Defendant, at or around that time, pointed out several instances in which Yanek had overbilled Defendant. Yanek refused to credit Defendant for such overpayments. Accordingly, Defendant refused to make further payments unless and until such prior overpayments were properly credited to him. 10. Admitted in part and denied in part. It is admitted that Defendant has refused to pay Yanek any further amounts on the contract and that Yanek has made repeated demands for payment. It is specifically denied that any balance remains on the contract, or that Defendant's refusal to pay Yanek constitutes a failure to pay. To the contrary, there is no balance payable to Yanek because the amounts owed by Yanek to Defendant for delays in performance, defective performance and overcharges exceed the amount which would otherwise remain as the balance of Yanek's contract. WHEREFORE, Defendant, David T. Latsha, respectfully requests the Court to dismiss Count I of Plaintiff's Complaint and enter judgment in his favor mad against Yanek, together w/th such other remedies as this Court shall deem just and appropriate. 3 COUNT II 11. reference. The responses in paragraphs 5 through 10 above are incorporated herein by 12. Denied as stated. The contract, being an instrument in writing, speaks for itself. Therefore, to the extent that the averments of paragraph 12 mischaracterize or are inconsistent with the contract, they are specifically denied. 13. Denied. It is specifically denied that Yanek completed construction of the outdoor deck in March, 2002. To the contrary, he did not complete the deck at that time. 14. Admitted in part and denied in part. It is admitted[ that after construction of the deck, Yanek, through his subcontractor, installed cement board atop the deck, which was to be used to secure tiles that would be used on the deck. It is specific~dly denied that the cement board was installed pursuant to Defendant's request. By way of fhrther answer, this work was performed improperly by Yanek's subcontractor. It is specifically denied that the deck construction was complete in March, 2002 15. Denied. It is specifically denied that Yanek advised the Defendant to use a specific flashing system, Schluters, recommended for outdoor tile and decks, and it carried a five year warranty. To the contrary, Yanek did not make that recommendation to Defendant. (??) 4 16. Denied. It is specifically denied that Defendant opted not to install the Schluters' flashing system. To the contrary, Defendant contacted Schluters' representative and received approval for an alternate system to support the five year warr~tty. 17. Admitted. 18. Admitted in part and denied in part. It is admitted that Beams have on several occasions given quotes to Defendant for the tile work for the exterior deck. It is specifically denied that Beams never received authorization from Defendant to perform the work. To the contrary, Beams advised Defendant that it would be unable to perform the work at that time. 19. Denied. It is specifically denied that Defendant refused to authorize Beams to proceed with the tiling of the deck or that Defendant caused any .delay whatsoever with respect to the deck. To the contrary, any delays with respect to the deck were the responsibility of Yanek and/or others. 20. Admitted in part and denied in part. It is admitted that Defendant received treatment for a cancerous tumor on his neck. It is specifically dentied that such treatment caused any delay to the project or had any impact whatsoever upon Yanek or the other contractors working on the project. 21. Denied. It is specifically denied that Defendant's medical condition contributed to his failure to provide authorization for the installation of the tile on the deck. To the contrary, Defendant's medical condition did not contribute to any alleged delay. To the contrary, the delay was caused by problems with the deck caused by improper construction by Yanek and/or his subcontractors. 22. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments and they are therefore denied, with strict proof thereof demanded at trial. 23. Admitted in part and denied in part. It is admitted that Beams submitted a final quote regarding the tiling work on or about July 26, 2002 and that Exhibit "B" to Plaintiff's complaint is a true and correct copy of that quote. It is specifically denied that the quote was submitted as a result of the alleged meeting. By way of further answer, Beams, at or around the same time as the final quote was supplied advised Defendant that it would be unable to perform the work at that time. 24. Denied. It is specifically denied that Beams had not heard from the Defendant since sending the July 26, 2002 quote or that it had not received attthorization to proceed. To the contrary, Beams advised Defendant that it would be unable to perfbrm the work at that time. 6 25. Denied. After reasonable investigation Defend~mt is without knowledge or information sufficient to form a belief as to the truth of the averments and they are therefore denied, with strict proof thereof demanded at trial. 26. Denied. It is specifically denied that Yanek contacted Defendant about his failure to prove the tiling work on the deck or that Defendant refused authorization to proceed. To the contrary, Beams had advised Defendant that it could not perform the work at that time. Thus, there was no contractor ready to perform the work and no one for Defendant to "authorize" to perform the work. By way further answer, the work could not have proceeded at that time, since the deck was not built to the proper elevation. 27. Admitted. 28. Admitted. 29. Denied. It is specifically denied that Defendant threatened to sue Yanek if the deck was not torn down and rebuilt within 30 days. To the contrary, what Defendant said to Yanek was "if you don't have the deck complete by November 1, you are going to have to deal with an attorney." By way of further answer, this statement was made to Yanek due to the fact that Yanek was already substantially late in completing the projecl:, had incorporated defective work in the original construction of the deck, had failed to construct the deck to an appropriate 7 elevation, and had failed to adequately protect the deck against deterioration while the problems caused by Yanek's own defective work were attempted to be resolved. 30. Admitted in part and denied in part. It is admitted that in or around September 2002 Yanek removed the entire wooden deck structure and began to reconstruct the same. It is specifically denied that Yanek proceeded in good faith or pursuant to the specifications received from Fluss. To the contrary, Yanek failed to perform in accordance with those specifications. Defendant is without knowledge or information sufficient to fonaa a belief as to Yanek's intent in that regard, and such characterizations are therefore denied, with strict proof thereof demanded at trial. 31. Admitted in part and denied in part. It is admitted[ that Fluss completed the tile work on the deck in or around November 2002. It is specifically denied that Yanek completed reconstruction of the deck in October 2002. To the contrary, Yartek failed to complete reconstruction of the deck in accordance with Fluss' specifications. 32. Denied. It is specifically denied that in November of 2002, Yanek had to expend time and materials to correct mistakes by Fluss. To the contrary, the leaking of the deck was caused by defective work by Yanek and/or his subcontractors. As to the costs allegedly incurred by Yanek, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, and they are therefore denied, with strict proof thereof demanded at trial. 8 33. Admitted in part and denied in part. It is admitted that Yanek submitted an invoice to Defendant totaling the amount of Sixteen Thousand Five Hundred Sixty-Seven Dollars and Ninety-One ($16,567.91) Cents and a true and correct copy of the invoice is attached to the Complaint as Exhibit "C." It is specifically denied that Yanek had completed rebuilding the deck. 34. Admitted in part and denied in part. It is admitted that a claim was submitted through Yanek's insurance company for the cost of damage and repairs to the deck in the amount of Seventeen Thousand Nine Hundred Thirty-Six Dollars and Tlfirty-Four ($17,936.34) Cents and that true and correct copies of supporting invoices are attached to the Complaint as Exhibit "D." It is specifically denied that Yanek had completed rebuilding the deck. It is further specifically denied that Yanek had done the brick work required for completion of the deck. By way of further answer, Yanek's work on rebuilding the deck was improperly performed and resulted in the necessity of further repairs to the deck. 35. Admitted in part and denied in part. It is admitted that in January, 2004, Defendant received an insurance settlement check in the amount of Seventeen Thousand Eighteen Dollars Nine ($17,018.09) Cents for costs related to dan:rage to the deck. It is further admitted that Defendant refused to pay Yanek the proceeds of that check, since Yanek's work was not yet complete and was defective, therefore requiring further repairs to the deck. 9 36. Admitted in part and denied in part. It is admitted that the letter attached as Exhibit "F" to Plaintiff's Complaint was forwarded to Defendant by Yanek's counsel. Any inference that the matters set forth in the letter are correct is specifically denied. To the contrary, Yanek was not owed any payment whatsoever for the defective work he performed with regard to the deck and Defendant properly refused to make payment for such defective work. 37. Admitted in part and denied in part. It is admitted that Yanek has demanded payment from Defendant for work associated with repairs to the deck and that Defendant has refused to pay Yanek. The characterization of such demand as having been made "repeatedly" is specifically denied. It is specifically denied that any payment is due to Yanek for such repairs, since the repairs were necessitated by defective work performed by Yanek and/or his subcontractors and the repairs themselves were improperly performed, necessitating further repairs to the deck. It is further specifically denied that Defendant has neglected any duty to pay. To the contrary, he has not. WHEREFORE, Defendant respectfully requests this Court to dismiss Count II of Plaintiff's Complaint and to enter judgment in his favor and against Yanek, together with such other remedies as this Court shall deem just and appropriate. COUNT I11 38. reference. The responses in paragraphs 11 through 32 above are incorporated hereby by 10 39. Denied as stated. The contract, being an instrtanent in writing, speaks for itself. Therefore, to the extent that the averments of paragraph 39 mischaracterize or are inconsistent with the contract, they are specifically denied. 40. Denied as stated. The contract, being an instrument in writing, speaks for itself. Therefore, to the extent that the averments of paragraph 40 mischamcterize or are inconsistent with the contract, they are specifically denied. 41. Denied as stated. The contract, being an instrument in writing, speaks for itself. Therefore, to the extent that the averments of paragraph 41 misclharacterize or are inconsistent with the contract, they are specifically denied. 42. Denied as stated. The contract, being an instrument in writing, speaks for itself. Therefore, to the extent that the averments of paragraph 42 mischaracterize or are inconsistent with the contract, they are specifically denied. 43. Denied as stated. The contract, being an instrument in writing, speaks for itself. Therefore, to the extent that the averments of paragraph 43 mischaracterize or are inconsistent with the comract, they are specifically denied. 11 44. Denied as stated. The contract, being an instrmnent in writing, speaks for itself. Therefore, to the extent that the averments of paragraph 44 mischaracterize or are inconsistent with the contract, they are specifically denied. 45. Denied. It is specifically denied that Defendant disregarded the terms of the contract in directly contracting with third parties to perform work on the project. To the contrary, the contract did not prohibit Defendant from contracting with third parties. In the alternative, to the extent that the contract can be interpreted to prohibit Defendant from contracting directly with third parties, Yanek expressly and impIiedly waived any such prohibition on the occasions where Defendant contracted directly with third parties. 46. Denied. It is specifically denied that Defendant disregarded the terms of the contract in directly paying parties with whom he had contracted to perform work without going through Yanek and without paying Yanek a fifteen (15%) percent fee for the work performed by such other parties. To the contrary, the contract did not permit Yanek to obtain a fifteen (15%) percent fee for work for which he bore no responsibility, performed no work or supervision, and for which he had no contract and submitted no invoice and did not prohibit Defendant from directly paying parties with whom he had contracted to perform work. In the alternative, to the extent that the contract can be interpreted to prohibit direct payment to third parties or to require the fifteen (15%) pement fee alleged by Yanek, Yanek waived any' such prohibitions or fees. 47. Admitted. 12 48. Denied. The averments of paragraph 48 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the terms of the bidding processes outlined in the contract. To the contrary, the contract did not prohibit Defendant from contracting directly with third parties. In the a][ternative, to the extent that the contract can be interpreted to prohibit Defendant from contracting directly with third parties, Yanek waived any such prohibition. 49. Denied. It is specifically denied that Defendant/hiled to advise Yanek of the separate contract or failed to pay Yanek any fee due under the contract. To the contrary, Yanek was made aware of the separate contract and was not entitled to ~my fee for the work performed thereunder, since he did not perform or supervise the work, bore no responsibility for such work, and presented no invoice for such work. 50. Admitted. 51. Admitted. 52. Denied. It is specifically denied that Defendant failed to pay Yanek any fee required by the terms of the contract. To the contrary, no such fee was required by the terms of the contract, since Yanek neither performed nor supervised the work and presented no invoice for payment with respect to the work. It is further specifically denied that Yanek was entitled to 13 any fee whatsoever with respect to work performed by third parties with whom Defendant contracted directly. To the contrary, he was not entitled to any such fee. 53. Denied. The averments of paragraph 53 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the bidding process or failed to pay Yanek any fee due under the terms of the contract. It is further specifically denied that Defendant breached the contract in any way. To the contrary, the contract did not prohibit Defendant from contracting directly with third parties. In the alternative, to the extent that the contract can be so interpreted, Yanek waived any such prohibition. 54. Admitted. 55. Denied. The averments of paragraph 55 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the terms of the bidding processes outlined in the contract. To the contrary, the contract did not prohibit Defendant from contracting directly with third parties. In the alternative, to the extent that the contract can be interpreted to prohibit Defendant from contracting directly with third parties, Yanek waived any such prohibition. 14 56. Denied. It is specifically denied that Defendant failed to advise Yanek of the separate contract or failed to pay Yanek any fee due under the contract. To the contrary, Yanek was made aware of the separate contract and was not entitled to any fee for the work performed thereunder, since he did not perform or supervise the work, bore no responsibility for such work, and presented no invoice for such work. 57. Admitted. 58. Admitted. 59. Denied. The averments of paragraph 59 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the bidding process or failed to pay Yanek any fee due under the temas of the contract. It is further specifically denied that Defendant breached the contract in any vmy. To the contrary, the contract did not prohibit Defendant from contracting directly with third parties. In the alternative, to the extent that the contract can be so interpreted, Yanek waived any such prohibition. 60. Admitted. 15 61. Denied. The averments of paragraph 61 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the terms of the bidding processes outlined in the contract. To the contrary, the contract did not prohibit Defendant from contracting directly with third parties. In the al[ternative, to the extent that the contract can be interpreted to prohibit Defendant from contracting directly with third parties, Yanek waived any such prohibition. 62. Denied. It is specifically denied that Defendant fhiled to advise Yanek of the separate contract or failed to pay Yanek any fee due under the contract. To the contrary, Yanek was made aware of the separate contract and was not entitled to any fee for the work performed thereunder, since he did not perform or supervise the work, bore no responsibility for such work, and presented no invoice for such work. 63. Admitted. 64. Admitted. 65. Denied. The averments of paragraph 65 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Proced~are. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the bidding process or failed to pay Yanek any fee due under the terms of the contract. It is further 16 specifically denied that Defendant breached the contract in any way. To the contrary, the contract did not prohibit Defendant from contracting directly uhth third parties. In the alternative, to the extent that the contract can be so interpreted, Yanek waived any such prohibition. 66. Admitted. 67. Denied. The averments of paragraph 67 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the terms of the bidding processes outlined in the contract. To the contrary, the contract did not prohibit Defendant from contracting directly with third parties. In the alternative, to the extent that the contract can be interpreted to prohibit Defendant from contracting directly with third parties, Yanek waived any such prohibition. 68. Denied. It is specifically denied that Defendant failed to advise Yanek of the separate contract or failed to pay Yanek any fee due under the contract. To the contrary, Yanek was made aware of the separate contract and was not entitled to any fee for the work performed thereunder, since he did not perform or supervise the work, bore no responsibility for such work, and presented no invoice for such work. 69. Admitted. 17 70. Admitted. 71. Denied. The averments of paragraph 71 constit~ate conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the bidding process or failed to pay Yanek any fee due under the te~ns of the contract. It is further specifically denied that Defendant breached the contract in any way. To the contrary, the contract did not prohibit Defendant from contracting directly with third parties. In the alternative, to the extent that the contract can be so interpreted, Yanek waived any such prohibition. 72. Admitted. 73. Denied. The averments of paragraph 73 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the terms of the bidding processes outlined in the contract. To the contrary, the contract did not prohibit Defendant from contracting directly with third parties. In the alternative, to the extent that the contract can be interpreted to prohibit Defendant from contracting directly with third parties, Yanek waived any such prohibition. 18 74. Denied. It is specifically denied that Defendant failed to advise Yanek of the separate contract or failed to pay Yanek any fee due under the contract. To the contrary, Yanek was made aware of the separate contract and was not entitled to any fee for the work performed thereunder, since he did not perform or supervise the work, bore no responsibility for such work, and presented no invoice for such work. 75. Admitted. 76. Admitted. 77. Denied. The averments of paragraph 77 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the bidding process or failed to pay Yanek any fee due under the temps of the contract. It is further specifically denied that Defendant breached the contract in any way. To the contrary, the contract did not prohibit Defendant from contracting directly with. third parties. In the alternative, to the extent that the contract can be so interpreted, Yanek waived any such prohibition. 78. Admitted. 19 79. Denied. The averments of paragraph 79 constitute conclusions of law to which no response is required under the Pennsylvania Ruies of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the terms of the bidding processes outlined in the contract. To the contrary, the contract did not prohibit Defendant from contracting directly with third parties. In the alternative, to the extent that the contract can be interpreted to prohibit Defendant from contracting directly with third parties, Yanek waived any such prohibition. 80. Denied. It is specifically denied that Defendant ~hiled to advise Yanek of the separate contract or failed to pay Yanek any fee due under the contract. To the contrary, Yanek was made aware of the separate contract and was not entitled to .any fee for the work performed thereunder, since he did not perform or supervise the work, bore no responsibility for such work, and presented no invoice for such work. 81. Admitted. 82. Admitted. 83. Denied. The averments of paragraph 83 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the bidding process or failed to pay Yanek any fee due under the terms of the contract. It is further 20 specifically denied that Defendant breached the contract in an3' way. To the contrary, the contract did not prohibit Defendant from contracting directly with third parties. In the alternative, to the extent that the contract can be so interpreted, Yanek waived any such prohibition. 84. Admitted. 85. Denied. The averments of paragraph 85 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the terms of the bidding processes outlined in the contract. To the contrary, the contract did not prohibit Defendant from contracting directly with third parties. In the alternative, to the extent that the contract can be interpreted to prohibit Defendant from contracting directly with third parties, Yanek waived any such prohibition. 86. Denied. It is specifically denied that Defendant failed to advise Yanek of the separate contract or failed to pay Yanek any fee due under the contract. To the contrary, Yanek was made aware of the separate contract and was not entitled to any fee for the work performed thereunder, since he did not perform or supervise the work, bore no responsibility for such work, and presented no invoice for such work. 87. Admitted. 21 88. Admitted. 89. Denied. The averments of paragraph 89 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the bidding process or failed to pay Yanek any fee due under the terms of the contract. It is further specifically denied that Defendant breached the contract in any way. To the contrary, the contract did not prohibit Defendant from contracting directly with third parties. In the alternative, to the extent that the contract can be so interpreted, Yanek waived any such prohibition. 90. Admitted. 91 Denied. The averments of paragraph 91 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the terms of the bidding processes outlined in the contract. To the contrary, the contract did not prohibit Defendant from contracting directly with third parties. In the ah!ernative, to the extent that the contract can be interpreted to prohibit Defendant from contracting directly with third parties, Yanek waived any such prohibition. 22 92. Denied. It is specifically denied that Defendant failed to advise Yanek of the separate contract or failed to pay Yanek any fee due under the contract. To the contrary, Yanek was made aware of the separate contract and was not entitled to any fee for the work performed thereunder, since he did not perform or supervise the work, bore no responsibility for such work, and presented no invoice for such work. 93. Admitted. 94. Admitted. 95. Denied. The averments of paragraph 95 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the bidding process or failed to pay Yanek any fee due under the temas of the contract. It is further specifically denied that Defendant breached the contract in any way. To the contrary, the contract did not prohibit Defendant from contracting directly with third parties. In the alternative, to the extent that the contract can be so interpreted, Yanek waived any such prohibition. 96. Admitted. 23 97. Denied. The averments of paragraph 97 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the terms of the bidding processes outlined in the contract. To the contrary, the contract did not prohibit Defendant from contracting directly with third parties. In the altemative, to the extent that the contract can be interpreted to prohibit Defendant from contracting directly with third parties, Yanek waived any such prohibition. 98. Denied. It is specifically denied that Defendant failed to advise Yanek of the separate contract or failed to pay Yanek any fee due under the contract. To the contrary, Yanek was made aware of the separate contract and was not entitled to any fee for the work performed thereunder, since he did not perform or supervise the work, bore no responsibility for such work, and presented no invoice for such work. 99. Admitted. 100. Admitted. I01. Denied. The averments of paragraph 101 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant failed to adhere to the bidding process or failed to pay Yanek any fee due under the terms of the contract. It is further 24 specifically denied that Defendant breached the contract in any way. To the contrary, the contract did not prohibit Defendant from contracting directly with third parties. In the alternative, to the extent that the contract can be so interpreted, Yanek waived any such prohibition. 102. Denied. The averments of paragraph 102 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. It is specifically denied that Defendant failed to abide by the terms of the agreement. It is fimher specifically denied that Defendant breached the contract. It is further specifically denied that Defendant has cheated Yanek out of any fee owed to Yanek. It is further specifically denied that work in question was performed by "unauthorized subcontractors." To the contrary, the work was performed by parties with whom Defendant contracted directly. The contract did not prohibit such direct contracts between Defendant and third parties. In the alternative, to the extent that the contract can be so interpreted, Yanek waived any such prohibitions. WHEREFORE, Defendant respectfully requests this court to dismiss Count III of the Complaint and enter judgment in his favor against Yanek, together with such other remedies as this Court shall deem just and appropriate. 25 NEW MATTER 103. In all instances where Defendant contracted directly with third parties on the project, Yanek was aware of that fact, and either expressly or implicitly agreed to that procedure. 104. Therefore, Count III of Yanek's Complaint is b*xred by the doctrines of estoppel, waiver, release and/or accord and satisfaction. 105. Yanek performed defective work which caused Defendant to incur costs in excess of the mounts presently claimed by Yanek for unpaid invoices; accordingly, Yanek is barred by the doctrine of estoppel from recovery for the amounts alleged in Counts I and II of his Complaint. 106. Yanek breached the contract by his failure to perform work in a timely manner, specifically failing to complete the improvements performed trader the agreement by March 31, 2002 as required in Article 4 of the contract between the parties. 107. Accordingly, Yanek is barred from recovery under the contract by his own breaches of contract. 108. Yanek improperly invoiced Defendant for a fifteen percent fee markup on sales tax from invoices submitted to Yanek by his subcontractors and fbr materials purchased by 26 Yanek; accordingly, Yanek is estopped from recovery for amounts equal to such improper overcharges. 109. Yanek's Complaint fails to state a cause of action upon which relief can be granted. WHEREFORE, Defendant respectfully requests this Court to dismiss Yanek's Complaint and to enter judgment in his favor and against Yanek, together with such other remedies as this Court shall deem just and appropriate. COUNTERCLAIM 110. The averments in paragraphs 103 through 109 are incorporated herein by reference as if fully set forth. 111. Article 4 of the contract between the parties specifically require that the improvements contemplated therein he completed "no later than March 31, 2002." 112. Article 4 of the contract between the parties further stated as follows: "Contractor recognizes and acknowledges that (i) time is of the essence in its performance of the Work; (ii) Owner will suffer damages in the event that Contractor's performance of the work is not timely as herein provided; and (iii) the actual damages suffered by Owner in the event of any delay may be difficult to estimate accurately. Contractor hereby agrees to pay Owner or Owner may deduct from sums owed to Contractor as part consideration for entering to this Agreement by way ofliqnidated damages and not as a penalty or forfeiture for 27 each calendar day after March 31, 2002, the sum of Two Hundred ($200.00) Dollars per day until such Work is completed to Owner's satisfaction." 113. Yanek failed to complete the improvements on March 31, 2002 as required by the contract. 114. The property was not substantially complete and ready for occupancy by Defendant until at least June 25, 2003, a total of 451 days in delay. 115. Thus, pursuant to Article 4 of the contract between the parties, Defendant is entitled to payment in the amount of $90,200.00 from Yanek as liquidated damages for Yanek's delay in performance and completion under the contract. 116. In addition, Defendant has incurred costs exceeding $951.00 for corrective work by other contractors required to correct defective or incomplete work performed by Yanek and/or his subcontractors. 117. Accordingly, Defendant is entitled to payment in an amount in excess of $951.00 from Yanek for correction of defective or incomplete work for which Yanek is responsible. 118. In addition, Defendant paid several invoices which included overcharges due to Yanek's improper inclusion of a fifteen percent markup on sales tax on invoices to Yanek from 28 anek s subcontractors and supphers, as well as other improper overcharges. These overpayments total $1,260.42. 119. Accordingly, Defendant is entitled to reimbursement from Yanek in the amount of $1,260.42 for overcharges previously paid to Yanek. COUNT I - SPECIFIC PERFORM[ANCE 120. The averments contained in paragraphs 110 through 119 are incorporated herein by reference as if fully set forth. 121. Pursuant to the terms of Article 4 of the contract ibetween the parties, Defendant Latsha is entitled to payment in the amount of $90,200.00 in liqnidated damages from Yanek. WHEREFORE, Defendant Latsha respectfully requests this Court to enter judgment in his favor and against Yanek in the amount of $90,200.00 plus pre-judgment interest, the costs of this action, and such other remedies as this Court shall deem just and appropriate. .COUNT II - BREACH OF CONTRACT 122. The averments of paragraphs 110 through 121 are incorporated herein by reference as if fully set forth. 29 123. The delays, defective performance and ovemharges attributable to Yanek constitute breaches of Yanek's contract with Defendant. 124. As a direct and proximate result of Yanek's breaches of contract, Defendant has suffered damages in the amount of $92,411.42. WHEREFORE, Defendant respectfully requests this Court to enter judgment in his favor and against Yanek in the amount of$92,411.42, together with pre-judgment interest, the costs of this action and such other remedies as this Court shall deem just and appropriate. COUNT III - VIOLATION OF THE PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 125. The averments contained in paragraphs 110 through 124 are incorporated herein by reference as if fully set forth. 126. At the time of entering into the contract with Defendant, Yanek represented to Defendant that it would perform the work in a good and workmardike manner and that it would perform its work expeditiously so as to meet the contract completion dates set forth in the contract between the parties, and that it had sufficient resources to. perform the work in accordance with the requirements of the contract both as to time a~ad as to quality of work. 30 127. In making these representations o Defendant, 5 anek prowded misleading and/or deceptive information to Defendant Latsha, all in violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et se__~q. 128. Defendant Latsha justifiably relied upon the misleading and/or deceptive information provided by Defendant Yanek in entering into the contract with Yanek and making payments thereunder, all to his detriment. 129. As a direct and proximate result of Yanek's violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, Defendant has suffered damages in the amount of $92,411.42. 130. Pursuant to the provisions of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-9.2, Defendant is entitled to recover treble damages and reasonable attorneys' fees in this litigation. WHEREFORE, Defendant Latsha respectfully requests this Court to enter judgment in his favor and against Yanek in the amount of$92,411.42, plus treble damages, plus attorneys' fees, pre-judgment interest, the costs of this action and such other remedies as this Court shall deem just and appropriate. 31 Date: September 1, 2004 By: Respectfully submitted, METTE, EVANS & WOODSIDE alglicha~l D. Reed,'Esquire Sup. Ct. I.D. No. 215193 3401 North Front :Street P. O. Box 5950 Harrisburg, PA 1;7110-0950 (717) 232-5000 Attorneys for Defendant, David A. Latsha 32 VERIFICATION I, David T. Latsha, have read the following document mad verify that the facts set forth herein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are sutbject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities. DATED: David T. Latsha C~ERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Kirk S. Sohonage, Esquire Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 Date: September 1, 2004 By: METTE, EVANS 8: WOODSIDE Sup. Ct. I.D. No. 35]93 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant David A. Latsha YANEK CUSTOM HOMES, INC., Plaintiff DAVID A. LATSHA, Defendant In the Court of Common Pleas of Cumberland County, Pennsylvania DocketNo.: 04-1913 Civil Term Civil Action - Law NOTICE TO PLEAD. You are hereby notified to reply to the within New Matter within twenty (20) days or a judgment may be entered against you. SAIDIS SHIYFF, FLOWER & LINDSAY Carlisle, PA Date: ~ ' ff---/Z- 'ff-~" Respectfully submitted, Saidis, Shuff, Flower & Lindsay Attorney ID #42667 26 West High Street. Carlisle, Pennsylvania 170Xl~ Phone: 717.243.6222 Fax: 717.243.6510 Attorney for Plaintiff YANEK CUSTOM HOMES, 1NC., Plaintiff DAVID A. LATSHA, Defendant In the Court of Common Pleas of Cumberland County, Pennsylvania DocketNo.: 04-1913 Civil Term Civil Action - Law SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA PLAINTIFF'S REPLY TO NEW MATTER AND COUNTERCLAIM AND NOW, comes the Plaintiff, Yanek Custom Homes, Inc., by and through his undersigned attorneys, Saidis, Shuff, Flower & Lindsay, and files the within Reply to New Matter and Counterclaim: 103. It is admitted that where Defendant contracted directly with third parties on the project, Yanek was aware of that fact. It is denied that Yanek either expressly or impliedly agreed to that procedure. It is further denied that Yanek waived the provisions of the contract entitling him to 15 % of the amount billed by all subcontractors on the job. 104. Paragraph 104 sets forth a legal conclusion to which no reply is required. It is denied that Count III of yanek's complaint is barred by the doctrines of estoppel, waiver, release or accord and satisfaction. 105. It is denied that Yanek performed defective work which caused Defendant to incur costs in excess of the amounts claimed by Yanek for unpaid invoices. The remainder of paragraph 105 sets forth a legal conclusion to which no reply is required. To the extent any reply is required, the doctrine of estoppel has no application to Plaintiffs claims or the facts of this case. 106. It is denied that Yanek breached the contract by failing to perform his work in a timely manner. It is further denied that the uncompleted state of the improvements as SAIDIS SHUFF, FLOWER & LINDSAY 26W. High Street Carlisle, PA of March 31,2002 resulted from any delay or breach of contract on the part of Yanek. On the contrary, the uncompleted state of the improvements as of March 31, 2002 resulted from delay and indecision on the part of Defendant, and from the many significant changes to the original scope of the work which were ordered, approved and authorized by Defendant. By way of further reply, the contract explicitly provides in Article 4, page four: Notwithstanding the foregoing, Contractor shall not be responsible for delays in construction due to extraordinary circumstances beyond his control caused by fire, adverse weather, or delays authorized by Owner. 107. Paragraph 107 sets forth a legal conclusion to which no reply is required. It is denied that Yanek breached the contract and that such breach bars him from recovery. 108. It is denied that Yanek improperly invoiced Defendant for a fifteen per cent fee markup on sales tax from invoices submitted to Yanek by his subcontractors or for materials purchased by Yanek. Any markup charged by Yanek was charged properly and in accordance with the terms of the contract. It is denied that Yanek is estopped from recovery for amounts equal to any such charges. 109. Paragraph 109 sets forth a legal conclusion to which no reply is required. It is denied that Yanek's complaint fails to state a cause of action upon which relief can be granted. WHEREFORE, Plaintiff Yanek demands judgment in its favor and against Defendant, with costs of suit. REPLY TO COUNTERCLAIM 110. The averments set forth in paragraphs 103 through 109 above are incorporated herein by reference. 2 SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Streel Carlisle, PA 111. Denied as stated. The contract is attached to the complaint and speaks for itself. By way of further reply, Defendant in his pleading has taken a small portion of Article 4 out of context. Article 4 in its entirety, and the remainder of the contract in its entirety, control Yanek's claims. Paragraph 106 set forth above, and the contract between the parties, attached to Yanek's complaint, are incorporated herein by reference. 112. Denied as stated. The contract is attached to the complaint and speaks for itself. By way of further reply, Defendant in his pleading has taken a portion of Article 4 out of context. Article 4 in its entirety, and the rerriainder of the contract in its entirety, control Yanek's claims. Paragraph 106 set forth above, and the contract between the parties, attached to Yanek's complaint, are incorporated herein by reference. 113. Paragraph 106 set forth above is incorporated herein by reference. 114. Plaintiff Yanek is without knowledge or information sufficient to enable him to form a belief as to the truth of the averment in paragraph 114. By way of further reply, Yanek is not responsible under the contract for 451 days of delay or any part of it. The entirety of any 451-day period of delay was caused exclusively by Defendant's own delay, indecision, and significant changes to the original scope of the work which he ordered, approved and authorized. Additionally, Yanek was not contractually obligated to secure a final occupancy permit. 115. Paragraph 115 sets forth a legal conclusion to which no reply is required. To the extent any reply is required, paragraph 114 set forth above is incorporated herein by reference. Defendant is not entitled to $90,200.00, or any part thereof, from Yanek as liquidated damages. 116. It is admitted that some work was necessary to correct defects in the insulation, plumbing and soffit on the deck. Yanek is without knowledge or information SAIDIS SHUFF, FLOWER & LINDSAY 26W. High Street Carlisle, PA sufficient to enable him to form a belief as to the truth of the averment that the necessary repairs cost $951.00. By way of further reply, Defendant's claim for any such expense is barred by the release executed by Defendant, attached hereto as Exhibit "A" and incorporated herein by reference. See Yanek's New Matter below. 117. Paragraph 116 set forth above is incorporated herein by reference. Defendant is not entitled to any payment in excess of $951.00 from Yanek. 118. It is admitted that Defendant paid the amounts of Yanek's invoices which included a fifteen per cent markup which took acco,unt of sales tax. The contract is a time- and-materials contract. Yanek paid all applicable sales taxes in order to acquire the materials necessary to perform the job. Defendant was fully aware that sales taxes were included in the amounts of the invoices when he paid them, and made no objection to the inclusion of the sales tax. The contract does not require Yanek to back sales taxes out of materials invoices before assessing the fifteen per cent markup. The invoices were properly presented to Defendant in accordance with the contract. It is denied that Defendant "overpaid" Yanek in the amount of $1,260.42 in relation to any such invoices. 119. It is denied that Defendant is entitled to reimbursement from Yanek in the amount of $1,260.42. Paragraph 118 set forth above is incorporated herein by reference. COUNT I - SPECIFIC PERFORMANCE 120. The averments contained in paragraphs 110 through 119 set forth above are incorporated herein by reference. 121. It is denied that Defendant is entitled to payment of $90,200.00 in liquidated damages from Yanek. Paragraphs 106 and 111 set forth above are incorporated herein by reference. Yanek is not responsible under the contract for 451 days of delay or SAIDIS SHHFF, FLOWER & LINDSAY 26W. High Street Carlisle, PA any part of it. The entirety of any 451-day period of delay was caused exclusively by Defendant's own delay, indecision, and substantial changes to the original scope of work. WHEREFORE, Plaintiff Yanek demands judgment in its favor and against Defendant on Count I of Defendant's counterclaim, with costs of suit. CQI~INT II - BREACH OF CONTRACT 122. The averments of paragraphs 110 through 121 set forth above are incorporated herein by reference. 123. Paragraph 123 sets forth a legal conclusion to which no reply is required. Yanek did not cause any delays in the work and did not overcharge Defendant. Defects were limited to those described in paragraph 116 above. Yanek did not breach his contract with Defendant. Paragraphs 106, 116 and 118 set forth above are incorporated herein by reference. 124. Paragraph 124 forth a legal conclusion to which no reply is required. Paragraph 123 set forth above is incorporated herein by reference. WHEREFORE, Plaintiff Yanek demands judgment in its favor and against Defendant on Count II of Defendant's countemlaim, with costs of suit. COUNT III - VIOLATION OF THE PENNSYLVANIA UNFAIR TRADE pRACTICES AND CONSUME]R PROTECTION LAW 125. The averments contained in paragraphs 110 through 124 set forth above are incorporated herein by reference. 126. Other than what is contained in the written contract, Yanek made no specific representations to Defendant, including those representations alleged in paragraph SAIDIS SHUFF, FLOWER & LINDSAY 26W. High Street Carlisle, PA 126. Yanek did not make any misrepresentations to Defendant. In any event, any statement by Yanek that it would perform the work in a workmanlike manner and would perform its work expeditiously so as to meet the contract completion dates set forth in the contract would constitute a promise, not a "representation." Other than what is contained in the written contract, Yanek made no representation to Defendant that it would perform the work in a workmanlike manner, or that it would perform the work expeditiously so as to meet the completion date(s), or that it had sufficient resources to perform the work in accordance with the requirements of the contract both as to time and as to quality of work. 127. Paragraph 126 set forth above is incorporated herein by reference. Yanek did not provide misleading or deceptive information to Defendant, and did not violate the Pennsylvania Unfair Trade Practices and Consumer Protection Law. 128. Paragraphs 126 and 127 set forth above are incorporated herein by reference. Defendant did not rely upon any misleading or deceptive information to his detriment concerning the contract with Yanek or Yanek's performance thereunder. 129. Paragraphs 126-128 set forth above are incorporated herein by reference. Defendant has not suffered damages in the amount of $92,411.42. 130. Paragraph 130 sets forth a legal conclusion to which no reply is required. Paragraphs 126-129 set forth above are incorporated herein by reference. Defendant is not entitled to recover treble damages or attorneys' fees in this litigation. WHEREFORE, Plaintiff Yanek demands judgment in its favor and against Defendant on Count III of Defendant's counterclaim, with costs of suit. PLAINTIFF'S NEW MATTER TO DEFENDANT'S COUNTERCLAIM 131. Paragraphs 103-130 set forth above are incorporated herein by reference. SAIDIS SH1JFF, FLOWER & LINDSAY 26W. High Street Carlisle, PA 132. On or about January 6, 2004 Defendant signed a document entitled "Release of All Claims" (the "Release"), a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference. 133. The Release relates to a payment in the amount of $17,018.09 which Defendant received from the Cincinnati Insurance Companies concerning a loss dated on or about April 2, 2002 at or near 85 Greenwood Circle, Wormleysburg, PA 17043. 134. The payment of $17,018.09 was made because of damage to the deck which was constructed on Defendant's premises pursuant to the contract. 135. As the result of Defendant's execution of the Release, any and all claims by Defendant against Yanek relating to or resulting from damage to the deck, including but not limited to claims for liquidated damages of $200.00 per day for delay under the contract between the parties, are barred by the doctrine of compromise and release. 136. By virtue of executing the Release and accepting payment of $17,018.09, Defendant is estopped from contesting Yanek's claim to be paid for work performed on the deck. 137. The $200-per-day liquidated damages provision in Article 4 of the parties' contract does not constitute a reasonable approximation of Defendant's loss in the event of a breach of the contractual provisions governing the completion date. 138. The $200-per-day liquidated damages provision in Article 4 of the parties' contract is tantamount to a penalty and is therefore, unenforceable. 139. Defendant waived his right to insist on strict compliance with the contract terms by making numerous changes to the scope of work, inordinately delaying the progress of the work, and disregarding and contravening Plaintiff's recommendations as to subcontractors and materials. 7 SAIDIS SHUFF, FLOWER & LINDSAY 26W. High Street Carlisle, PA 140. Defendant failed to mitigate any damages which he sustained. 141. The doctrine of specific performance has no application to the allegations in the instant action. 142. Defendant's claims are barred in whole or in part by applicable statutes of limitation. WHEREFORE, Plaintiff Yanek demands ~judgment in its favor and against Defendant on Defendant's counterclaim, with costs of suit. Respectfully submitted, Saidis, Shuff, Flower & Lindsay 'Attorne~ ID #42667 ~ 26 West High Street Carlisle, Pennsylvania 17013 Phone: 717.243.6222 Fax: 717.243.6510 Attorney for Plaintiff SAIDIS SHUFF, FLOWER & LINDSAY 26W. High Street Carlisle, PA I hereby verify that the facts set forth in the foregoing Pleading are true and correct to the best of my knowledge, information and belief, and that as President of Yanek Custom Homes, Inc., I am authorized to make this. verification on its behalf. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unswom falsification to authorities. Date: September 17, 2004 By: ~ '-' Steve Y~esid~nt YANd( CJ~TOM HOMES, INC. RELEASE OF ALL CLAIMS KNOW ALL MEN BY THESE pRESENTS: ......... a .aoht,~n and 09/I 00 Dollars ($17~018.09) to That the undersigned, being of lawful age, for the sole consideration oI s~entecn m~,u .......... the undersigned in hand paid, receipt whereof is hereby acknowledged, do/does hereby and f~r my/our/i? heirs, executors, administrators, successors .......... vnnek Custom Homes/Steve yanak and his, her, their, or its agents, servants, successors, heirs, executors, administrators and ail other persons, firms, corporations, aesociatinas or parmerships of and from ~ny and all claims, actions, causes Ofmay action, demands, rights, damages, costs, loss orsermcc, expansas and compansstmn v~hatsoever, winch the undersigned now hardhave or whi5 herea~er accrue on account of or in any way growing out of any and all known and anknown, foreseen and unforeseen bodily and personal injuries and propcn'ty damage mad the consequences thereof resulting or to result from the accadent, casualty or event which occurred on or about the 2nd day of ~rll, 200~2, at or nest 85 Grannwood Circle. Wormlevsburu' PA 17042. It is understood and agreed that thks settlement is the cOn~}u,i.lse ufa doubtful ~md disputed claim, and that the payment made is not to be canfaued as an admission of liability on the part of the party or parties bereby released, ac~d that said relcasecs deny liability therefor and intend void thi atiun and by their peace. _ .... ~ ....... },~ nm'manent and progressive and that recovery therefrom is uncertain and indefinite and in making this Release it is understood and agrecat, that the undersigned rely(les) wholly upon the unde~igned's judgment, belief and knowledge of the nature, extent, effect and duration of said injuries and liability therefor and is made without reliance upon any ~atement or representation of the party or parties hereby released or their representative or by any physician or surgeon by them employed. - - ~ ~--owu or unanticipated injuries resulting from the above stated The undersigned further declare(s) and represent(s) mat mere naay oe un~n casualty or event and in making this Release it is understood and agreed that this Release in intended to include such injuries. accident, The undersigned further agree(s) to pay and satisfy all hospital or medical charges of any type incurred by the undersigned in relation to the chow-stated accident, casualty or event, and further agrees to indermufy, protect and hold harmless the party or parties hereby released (including the claims, charges or liens against the released l~arty or parties by any released party or parties' insurers and attorneys), from the assertion of any such assume the defense of the released party or parties, and to third party or eh'dry. The undersigned agrees in relation to such inderanified claims to indemnify the released pasties for any costs or damages assae~ated therewith, mcluthng but not hm~ted to attorney fees Thc undemgned further declare(s) and represent(s) that no promise, indueemem or agreement not herein expressed has been made to the undersigned, and that this Release cuntmns the an'are agreement between the parUes hereto, and that the terms of this Release are eontra~eaai a~d not a mere recalls Release expressly reserves ail rights of the person, or person, on whose bchaif thc paymem ~s made and the rights of all persons privity or eunnem'ed with them, and reserves to them thetr right to pursue their legal rern{,&es, ~f any, tnnludmg but not hrmted to elamas for cceiribution, prt~perty damage and personal injury against the undersigned or those in privity or connected with thc undersigned. THE UNDERSIGNED HAS READ THE FOREGOING RELEASE .a/ND FULLY UNDERSTANDS IT. Signed, seated and dehvered this ~ day of__ STATE OF SS cOUNTY OF CAUTION: READ BEFORE SIGNING BELOW On the day of ,20 , before me personally appea~ed to me known to be the person(s) earned harem and who executed the foregoing Release and aclmowledged to me the( voluntarily executed the same, My ~erm expires _-- ,20_ _. Notary Public "Any person who knowingly and with t ' ' ' ' ' ' CL-1224-PA (7/94) SAIDIS SHUFF, FLOWER & LINDSAY 26W. High Street Carlisle, PA YANEK CUSTOM HOMES, 1NC., Plaintiff DAVID A. LATSHA, Defendant In the Court of Common Pleas of Cumberland County, Pennsylvania DocketNo.: 04-1913 Civil Term Civil Action - Law CERTIFICATE OF SERVICE Onthis dJ~ay of~9~f~/~, 2004, 1, Adele H. Group, hereby certify that I served a true and correct copy of the foregoing PLAINTIFF'S REPLY TO NEW MATTER AND COUNTERCLAIM via United States Mail, first-class, postage prepaid addressed as follows: Michael D. Reed, Esquire METTE EVANS & WOODSIDE 3401 N. Front Street PO Box 5950 Harrisburg, PA 17110-0950 By: Saidi:~, Shuff, Flower & Lindsay Adele H. Group ! YANEK CUSTOM HOMES, INC., : Plaintiff : V. DAVID A. LATSHA~ Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Docket No. 04-1913 Civil Term Civil Action - Law DEFENDANT'S REPLY TO NEW MATTER 131. Paragraphs 103 through 130 of Defendant's counterclaim previously filed with this Court are incorporated herein by reference as if fully set forth. 132. Admitted. 133. Denied as stated. The Release, being an instrun~ent in writing, speaks for itself. Therefore, to the extent that the averments of paragraph 133 are inconsistent therewith, they are specifically denied. 134. Admitted in part and denied in part. It is admitted that the payment of $17,018.09 was made because of damage to the deck constructed on Defendant's premises. It is specifically denied that the deck was constructed pursuant to the contract. To the contrary, the deck was improperly constructed by Plaintiff Yanek and/or parties under his direction and control. 135. Denied. The averments of paragraph 135 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that the claim for liquidated damages contained in Defendant's counterclaim is covered by or included within the claims recited in the Release. 136. Denied. The averments of paragraph 136 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil[ Procedure. To the extent that a response is deemed required, it is specifically denied that Defendant is estopped from contesting Yanek's claim to be paid for work performed on the deck. To the contrary, there is no such estoppel since the Release does not require Defendant to pay Yanek's claim for work performed on the deck. 137. Denied. The averments of paragraph 137 consl!itute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that the $200.00 per day liquidated damages provision in Article 4 of the parties' contract does not constitute a reasonable approximation of Defendant's loss in the event of a breach of the contractual provisions goveming the completion date. To the contrary, the liquidated damages sum was an approximation negotiated by the parties at the time they entered into the contract for the very reason that actual damages were difficult to estimate or ascertain in the event of such a breach. 138. Denied. The averments of paragraph 138 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that the $200.00 per day liquidated damages provision in Article 4 of the parties' contract is tantamount to a penalty and is therefore unenforceable. To the contrary, the liquidated damages sum represent the negotiated attempt of the parties to approximate damages in the event of a breach, and is therefore enforceable. 139. Denied. The averments of paragraph 139 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a 2 response is deemed required, it is specifically denied that Defendant waived his right to insist on strict compliance with the contract terms by making numerous changes to the scope of work, inordinately delaying the progress of the work, and disregarding and contravening PlaintiWs recommendations as to subcontractors and materials. To the contrary, Defendant did not waive any provision of the contract terms, did not make any unreasonable number of changes to the scope of work, did not delay the progress of the work, and did not disregard or contravene Plaintiff's recommendations as to subcontractors and materials. 140. The averments of paragraph 140 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Delq~ndant failed to mitigate any damages which he sustained. To the contrary, Defendant made reasonable efforts to mitigate his damages. 141. The averments of paragraph 141 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 142. The averments of paragraph 142 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendant David T. Latsha demands judgment in his favor and against Plaintiff Yanek in accordance with the prayer for relief contained in Defendant's counterclaim previously filed with this Court. Date: October 12, 2004 By: Respectfully submitted, METTE, EVANS & WOODSIDE 'chael D. Reed, Esquire Sup. Ct. I.D. No. 35193 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, David T. Latsha 4 VERIFICATION I, David T. Latsha, have read the following document and verify that the facts set forth herein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities. CERTIFICATE OF SER¥ICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Kirk S. Sohonage, Esquire Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 Date: October 12, 2004 By: METTE, EVANS & WOODSIDE // · ,, q'e [ Sup. Ct. I.D. No. 35193 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant David T. Latsha 408646vl Y ANEK CUSTOM HOMES, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. Docket No. 04-1913 Civil Term DAVID A. LA TSHA, Defendant Civil Action - Law PRAECIPE FOR DISCONTINUANCE TO THE PROTHONOTARY: Kindly mark the above-captioned matter settled, discontinued and ended with prejudice. SAIDIS, SHUFF, FLOWER & LINDSAY METTE, EVANS & WOODSIDE B .(t. /4 2f1 ,..J / "1 By: ;~'.~/ MIChael D. Reed, Esquire Sup. Ct. I.D. No. 35193 Brian C. Caffrey, Esq Sup. Ct. I.D. No. 426 26 West High Street Carlisle, P A 17013 (717) 243-6222 3401 North Front Street P. O. Box 5950 Harrisburg, P A 17110-0950 (717) 232-5000 Attorneys for Plaintiff, Yanek Custom Homes, Inc. Attorneys for Defendant, David T. Latsha Date: /'~f9-c&~ 414709vl c: (-~! 1 . , J .j i"".) '--' C'~, -