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HomeMy WebLinkAbout09-2718NELSON LEVINE de LUCA & HORST, LLC BY: PATRICK A. HUGHES, ESQUIRE IDENTIFICATION NO.: 91415 518 TOWNSHIP LINE RD, SUITE 300 BLUE BELL, PA 19422 (610) 862-6533 MICHAEL AND BEVERLY HENKE 68 RUSTIC DRIVE SHIPPENSBURG, PA 17257 Plaintiff(s) V. NEW ERA BUILDING SYSTEMS, INC. 451 SOUTHERN AVENUE P.O. BOX 291 STRATTANVILLE, PA 16258 and NEW ERA BUILDLING SYSTEMS, INC. d/b/a CASTLE HOUSING OF PENNSYLVANIA 2701 CAMBRIDGE COURT, SUITE 300 AUBURN HILL, MI 48326 and LARRY KIFER 143 WHISPERING OAKS CIRCLE ST. AUGUSTINE, FL 32080 Defendant(s ATTORNEYS FOR PLAINTIFFS IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PA CIVIL ACTION NO: Og - 0,1118 IVII ?? NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within (20) days after this Complaint and Notice are served, by entering a written appearance personally or by an 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 or any other claim or relief requested by the plaintiff. You may lose money or property rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 NELSON LEVINE de LUCA & HORST, LLC BY: PATRICK A. HUGHES, ESQUIRE IDENTIFICATION NO.: 91415 518 TOWNSHIP LINE RD, SUITE 300 BLUE BELL, PA 19422 (610) 862-6533 MICHAEL AND BEVERLY HENKE 68 RUSTIC DRIVE SHIPPENSBURG, PA 17257 Plaintiff(s) V. NEW ERA BUILDING SYSTEMS, INC. 451 SOUTHERN AVENUE P.O. BOX 291 STRATTANVILLE, PA 16258 ATTORNEYS FOR PLAINTIFFS IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PA CIVIL ACTION NO: D 9 - .2 7/ I 1,,-j 7z-,.- and NEW ERA BUILDLING SYSTEMS, INC. d/b/a CASTLE HOUSING OF PENNSYLVANIA 2701 CAMBRIDGE COURT, SUITE 300 AUBURN HILL, MI 48326 and LARRY KIFER 143 WHISPERING OAKS CIRCLE ST. AUGUSTINE, FL 32080 COMPLAINT Plaintiffs, Michael and Beverly Henke, hereby aver as follows: 1. Plaintiffs, Michael and Beverly Henke, (hereinafter "Plaintiffs"), are adult individuals, and husband and wife, who are the owners and residence of the above captioned property (hereinafter "subject premises") 2. Upon information and belief, at all times relevant hereto, Defendant New Era Building Systems, Inc. (hereinafter "NEBS") was a Pennsylvania corporation with a principal place of business located at the above captioned address. 3. Upon information and belief, at all times relevant hereto, NEBS was engaged in the business of, inter alia, designing, manufacturing, assembling, marketing and/or selling modular homes. 4. Upon information and belief, at all times relevant hereto, Defendant New Era Building Systems, Inc. d/b/a Castle Housing of Pennsylvania (hereinafter "Castle") was a foreign corporation with a principal place of business located at the above captioned address. 5. Upon information and belief, at all times relevant hereto, Castle was engaged in the business of, inter alia, designing, manufacturing, assembling, marketing and/or selling modular homes. 6. Upon information and belief, at all times relevant hereto, Defendant Larry Kifer (hereinafter "Kifer") was an adult individual who resides at the above captioned address. 7. Upon information and belief, at all times relevant hereto, Kifer was the President and Owner of Castle. 8. On or about May 10, 2007, a fire erupted at Plaintiffs' property, which subsequent investigation revealed the fire originated at a loose connection between the electrical wiring inside one of the walls and an outlet. 9. As a result of the aforementioned fire, Plaintiffs sustained substantial damage to their real and personal property, as well as additional expenses and hardships besides. COUNTI NEGLIGENCE AGAINST ALL DEFENDANTS 10. Plaintiffs herein incorporate the allegations set forth in all prior paragraphs of this Complaint as though the same were set forth at length herein. 11. The aforementioned damages were the direct and proximate result of the negligence, carelessness, recklessness and/or other liability producing conduct of all Defendants, including negligent acts and/or omissions, as performed personally and/or by and through their agents, employees, and/or servants, more specifically described as follows: (a) failing to exercise reasonable care in the performance of duties in the installation of electrical wiring at or near the subject property, including, but not limited to, carelessly and negligently performing the following: (1) failing to competently install the electrical wiring at the subject property in a safe and appropriate manner; (2) failing to ensure that proper techniques were employed, and applicable safety procedures followed, as to the installation of the electrical wiring at the subject property; (3) failing to properly supervise and/or monitor the work of all agents and/or employees during the installation of the electrical wiring to ensure compliance with applicable safety procedure; (4) failing to perform routine and/or periodic and/or final safety inspections of the electrical work being performed at or near the subject property so as to discover the dangerous condition of the electrical wiring in the subject premises; (b) failing to adequately instruct, supervise and/or train servants, employees and agents as to the proper ways to perform the tasks set forth in subparagraph (a); (c) failing to adequately warn Plaintiffs and others of the dangers resulting from the failure to exercise reasonable care as set forth in subparagraph (a), above; (d) failing to provide, establish and/or follow proper and adequate controls so as to ensure the proper performance of the tasks set forth in subparagraph (a) above; (e) failing to perform the tasks set forth in subparagraph (a) in conformity with prevailing industry and governmental specifications and standards; (f) failing to retain competent, qualified and/or able agents, employees or servants to perform the tasks set forth in subparagraph (a) above; and/or (g) violating the standards of care prescribed by statutes, rules, regulations, ordinances, codes, and/or industry customs applicable to this action. 12. As a direct and proximate result of such conduct, Plaintiffs sustained and incurred damage to their real and personal property, as well as additional expenses, in an amount not in excess of $50,000.00. WHEREFORE, Plaintiffs demand judgment in their favor and against all Defendants in an amount not in excess of $50,000.00 plus interest, costs of suit, reasonable attorney fees, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT II BREACH OF CONTRACT AGAINST ALL DEFENDANTS 13. Plaintiffs herein incorporate the allegations set forth in all prior paragraphs of this Complaint as though the same were set forth at length herein. 14. Defendants breached the terms of their agreements with plaintiff, or agreement(s) of which Plaintiffs were a third-party beneficiary, for the sale, assembly and installation of Plaintiffs' modular home including its electrical system which is the subject of this lawsuit. 15. Plaintiffs are not in possession of a copy of said contract, and therefore cannot append a copy hereto, however, Plaintiffs avers that defendants are in possession of said contract and/or has superior access thereto than Plaintiffs so Defendants are not prejudiced. 16. In causing the damage as alleged herein, Defendants breached the terms of their agreements with Plaintiffs, or agreement(s) of which Plaintiffs were a third-party beneficiary, either as expressed or implied therein and/or according to law. IT For its part, Plaintiffs performed all its obligations under the aforementioned agreements, as well as all conditions precedent to recovery on this count. 18. As a direct and proximate result of Defendants' above-described breach(es) of their agreements with Plaintiffs, Plaintiffs sustained and incurred damage to its property, and the imposition of additional expenses and hardships besides, in an amount not in excess of $50,000.00. WHEREFORE, Plaintiffs demand judgment in their favor and against all Defendants in an amount not in excess of $50,000.00 plus interest, costs of suit, reasonable attorney fees, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT III BREACH OF EXPRESS AND IMPLIED WARRANTIES AGAINST ALL DEFENDANTS 19. Plaintiffs incorporate by reference the preceding paragraphs as though set forth at length herein. 20. In furtherance of the aforementioned services performed, all Defendants had impliedly warranted that all work performed would be done in a reasonably workman-like manner, and/or with quality workmanship. 21. Based upon the aforementioned improper conduct on the part of all Defendants, personally and through servants, employees, and/or agents as set forth above, all Defendants breached these warranties. 22. In light of the defects and negligence described herein, defendants did not provide Plaintiffs a property, nor systems, of merchantable quality, reasonably fit for the purposes for which intended, nor constructed in a good and workmanlike manner, nor conducive to creating a habitable property, thus breaching express and implied warranties Plaintiffs had rights to rely upon, including but not limited to those described at 13 Pa.C.S. Sections 2314 and 2315, and otherwise in Pennsylvania law and the Uniform Commercial Code. 23. As a direct and proximate result of these breaches, Plaintiffs suffered the aforementioned damages to their real and personal property, as well as additional expenses, in an amount not in excess of $50,000.00. 24. Plaintiffs have performed all conditions precedent to recover based upon such breaches. WHEREFORE, Plaintiffs demand judgment in their favor and against all Defendants in an amount not in excess of $50,000.00 plus interest, costs of suit, reasonable attorney fees, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT IV STRICT LIABILITY AGAINST ALL DEFENDANTS 25. Plaintiffs incorporate by reference the preceding paragraphs as though set forth at length herein. 26. At all times materials hereto, defendants were engaged in the business of designing, manufacturing, assembling, installing, marketing, distributing, delivering and/or selling modular homes, including the subject defective modular home. 27. Plaintiffs were foreseeable users of the modular home at the time of the fire and thereafter. 28. The subject modular home was defectively designed, manufactured and/or installed in such a way making it unsafe for its intended use. 29. Defendants designed, manufactured, assembled, installed, marketed, distributed, delivered, and/or sold the subject modular home in a defective condition, unreasonably dangerous to plaintiffs and their property. 30. Defendants knew or should have known that the subject modular home would, and did, reach the plaintiffs without substantial change in the condition in which originally selected and sold. 31. The aforementioned defects consisted of: (a) design defects; (b) manufacturing defects; (c) component defects; (d) use-instruction and/or warnings defects; and/or (e) a failure to warn of the design, manufacturing, and/or component defects, and/or properly provide warning and/or safe use instructions. 32. As a direct and proximate result of the aforementioned product defects, plaintiffs sustained and incurred damage to their real and personal property, along with the imposition of additional expenses and hardship besides, in an amount not in excess of $50,000.00. WHEREFORE, Plaintiffs demand judgment in their favor and against all Defendants in an amount not in excess of $50,000.00 plus interest, costs of suit, reasonable attorney fees, delay damages, and such other relief as the Court deems appropriate under the circumstances. Respectfully submitted, NELSON LEVINE de LUCA & HORST, LLC BY: • _( 4-# ATRICK A. H G S, ESQUIRE ATTORNEYS FOR PLAINTIFFS Dated: April 28, 2009 V4/21/2008 03:33 FAX 011/011 VERMCATION I, DAVID MITCHELL,, hereby state that I am a duly authorized representative of State Farm Insurance Companies, the real party in interest, and that the facts contained in the foregoing COMPLAINT are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements therein are made subject to penalties of 18 Pa_C.S. § 4904 relating to unsworh falsification to authorities. CZA PfCHELL Dated: alJ CS 2009 kf30 PM 1: 23 t T, M *ex. So PLC ATI%f CACV-c2"q*7 ell*- uqq 21 Sheriffs Office of Cumberland County R Thomas Kline 4'6"Ior at Crumbe..440 Edward L Schorpp Sheriff Solicitor Ronny R Anderson Jody S Smith Chief Deputy OFFICE OF 74E -ERIFF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 04/30/2009 R. Tho as Kline, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry f r the within named defendant, to wit: New Era Building Systems, Inc., but was unable to locate them in is bailiwick. He therefore deputized the Sheriff of Clarion County, PA to serve the within Complaint and Notice. 05/05/2009 03:28 F Clarion and Nc unto Kc SHERIFF COST: $37 May 18, 2009 A - Clarion County Return: And now May 5, 2009 at 1528 hours I, William H. Peck, Sheriff of :ounty, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint ce, upon the within named defendant, to wit: New Era Building Systems, Inc. by making known by A. Bernard, adult in charge at 451 Southern Avenue Strattanville, Pennsylvania 16258 its and at the same time handing to her personally the said true and correct copy of the same. 00 2009-27ZBeverly Michael Henke New Era Puilding Systems, Inc. SO ANSWERS, R THOMAS KLINE, SHERIFF 71 Fri Q -'j C) . ;jff7 f ??ry NELSON LEVINE de LUCA & HORST, LLC BY: PATRICK A. HUGHES, ESQUIRE IDENTIFICATION NO.: 91415 518 TOWNSHIP LINE RD, SUITE 300 BLUE BELL, PA 19422 (610) 862-6533 MICHAEL AND BEVERLY HENKE 68 RUSTIC DRIVE SHIPPENSBURG, PA 17257 Plaintiff(s) V. NEW ERA BUILDING SYSTEMS, INC. 451 SOUTHERN AVENUE P.O. BOX 291 STRATTANVILLE, PA 16258 and NEW ERA BUILDLING SYSTEMS, INC. d/b/a CASTLE HOUSING OF PENNSYLVANIA 2701 CAMBRIDGE COURT, SUITE 300 AUBURN HILL, MI 48326 and LARRY KIFER 143 WHISPERING OAKS CIRCLE ST. AUGUSTINE, FL 32080 ATTORNEYS FOR PLAINTIFFS IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PA CIVIL ACTION NO: 09-2718 PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Kindly reinstate the Complaint filed in the above captioned matter for an additional thirty (30) days. NELSO NE de LUCA & HORST, LLC BY: ATRICK A. HU , ESQUIRE Dated: May 22, 2009 ATTORNEYS FOR PLAINTIFF NELSON LEVINE de LUCA & HORST, LLC BY: PATRICK A. HUGHES, ESQUIRE IDENTIFICATION NO.: 91415 518 TOWNSHIP LINE RD, SUITE 300 BLUE BELL, PA 19422 (610) 862-6533 MICHAEL AND BEVERLY HENKE 68 RUSTIC DRIVE SHIPPENSBURG, PA 17257 Plaintiff(s) V. NEW ERA BUILDING SYSTEMS, INC. 451 SOUTHERN AVENUE P.O. BOX 291 STRATTANVILLE, PA 16258 and NEW ERA BUILDLING SYSTEMS, INC. d/b/a CASTLE HOUSING OF PENNSYLVANIA 2701 CAMBRIDGE COURT, SUITE 300 AUBURN HILL, MI 48326 and LARRY KIFER 143 WHISPERING OAKS CIRCLE ST. AUGUSTINE, FL 32080 ATTORNEYS FOR PLAINTIFFS IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PA CIVIL ACTION NO: 09-2718 CERTIFICATE OF SERVICE I, Patrick A. Hughes, Esquire, hereby certify that a true and correct copy of the Praecipe to Reinstate Complaint was served on May 22, 2009, upon the below listed parties by United States Mail, postage prepaid. New Era Building Systems, Inc. 451 Southern Avenue P.O. Box 291 Strattanville, PA 16258 New Era Building Systems, Inc. d/b/a Castle Housing of Pennsylvania 2701 Cambridge Court, Suite 300 Auburn Hill, MI 48326 Larry Kifer 143 Whispering Oaks Circle St. Augustine, FL 32080 NELSON LEVINE de LUCA & HORST, LLC BY: (;61- -A 44&, TRICK A. HUCHN, QUIRE ATTORNEYS FOR PLAINTIFF Dated: May 22, 2009 O FUD-OMICE OF THE PROTW,-*IOTARY 2009 JUN -4 PM 2: 3 PD4 " XVANlA 410.= p o ATT`I C.Ic-' 3o333 e aa(ea.5q