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Home My WebLink About01-6927TERENCE SMITH, an Adult Individual 3922 Emilridge Drive Mechanicsburg, PA 17050 and p^TPdCIA SMIrH, an Adult Individual 3922 Emilridge Drive Mechanicsburg, PA 17050 Plaintiffs VD ACCENT LANDSCAPING, INC., A Pennsylvania Corporation 1636 Williams Grove Road Dillsburg, PA 17019 and D^mD E. FUREMAN, an Adult Individual 1636 Williams Grove Road Dillsburg, PA 17019 Defendants IN THE COURT OF COMMON PLE CUMBERLAND COUNTY, PENNS' No. kCsO CIVIL ACTION - LAW PRAECIPE To the Prothonotary: Kindly issue a Writ of Summons in the above-captioned action. Respectfully submitted, JOHNSTON & DLa~OND, P.C. Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 Dated: December 7, 2001 ?Y A S A. oi o ~r~. I.D. No. 43902 Attorneys for Plaintiffs kS ~LVANIA Commonwealth of Pennsylvania County of Cumberland Terence Smith, an Adult Individual 3922 Emilridge Drive Mechanicsburg, PA 17050 and Patricia Smith, an Adult individual 3922 Emilridge Drive Mechanicsburg, PA 17050 vs. Accent Landscaping, Inc. A Pennsylvania Corporation 1636 Williams Grove Road Dillsburg, PA 1~g019 Court o[ Conunon Pleas 01-6927 civil and David E. Fureman, an Adult individual Civil Action - Law 1636 Willimas Grove Road In ............... r ............................. Dillsburg, PA 17019 an Adult individl[al ~dividual E. Fureman~ To Accent Landscaping_, Inc., _a~__d_ p~_v_~d You are hereby notified that Terence Smith, an Adult Individual and Patricia Smith, an Adult I1 the Plaintff Shavecommenced an action in Civil Action - Law ...... against you which you are required to defend or a default judgment may be entered against (SEAL) December 7, 2001 19 .... Date .............................. SHERIFF'S RETURN - CASE NO: 2001-06927 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SMITH TERENCE ET AL VS ACCENT L~dNDSCAPING INC ET AL OUT OF COUNTY R. Thomas Kline duly sworn according to law, says, that he made a diligent and inquiry for the within named DEFENDANT , to wit: ACCENT LANDSCAPING INC , Sheriff or Deputy Sheriff who being search and but was unable to locate Them deputized the sheriff of YORK serve the within WRIT OF SUMMONS in his bailiwick. County, He therefore Pennsylvania, to On January 10th , 2002 this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing Out of County Surcharge Dep York Co 18.00 9.00 10.00 62.08 .00 99.08 01/10/2002 JOHNSTON & DIAMOND R.~Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this ~'q~ day of ~ ~2~ A.D. P~othonota~yl · SHERIFF'S RETURN - CASE NO: 2001-06927 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SMITH TERENCE ET AL VS ACCENT LANDSCAPING INC ET AL OUT OF COUNTY R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: FUREMAN DAVID E but was unable to locate Him deputized the sheriff of YORK serve the within WRIT OF SUMMONS in his bailiwick. County, He therefore Pennsylvania, to On January 10th , 2002 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing Out of County Surcharge 6.00 .00 10.00 .00 .00 16.00 01/10/2002 JOHNSTON & DIAMOND SO answe3~: ~ j~ ~ ..... ~ R. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this [ [ ~ day of ~ ~,L A.D. / ! Prothonotary~ · 2of2 COUNTY OFYORK OFFICE OF THE SHERIFF 28 EAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT and AFFIDAVIT OF RETURN SERVICE CALL (717) 771-9601 1. PLAINTIFF/S/ Terence Sm&th et al 4. TYPEOFWRITORCOMPLAINT Accent Landscapin.q, Inc. et al s SERVE ~ 5. NAME OF ~NDMDUAL. COMPANY. CORPORATION. ETC. TO SERVE OR CESCR,PT~ON OF PROPERTY TO BE LEWED. ATTACHED. OR SOLD Accent Landscapin.q, Inc. 5 ADDRESS (STREET OR RFO V~TH SOX NUMBER, APT NO., CITY, SORO, 3~VP. STATE AND ZIP CODE) AT 1636 Williams Grove Road Dillsburq, PA 17019 ~FR ~ POSTED ~ OTMER 7. INDICATE SERVICE: r~ PERSONAL n PERSON iN CHARGE X~OEPUTIZE ~ ~l-'l ~'~J~ n 1 ST CLASS MAIL NOW December 10 ,20 O1 I, SHERIFF OF 3~R~COUNTY, PA, do hereby deputize the sheriff of ¥o~'k COUNTY to execut~.~P~rnake return...t~...~, according to law. This deputization being made at the request and risk of the plaintiff. SHERIFF OF ~'rY - 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: ADVANCED FEE PAID BY SHERIFF OUT OF COUNTY CUMBERLAND NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of h~vy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any propo~y before s~eriffs sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATU RE JOHNSTON & D[AMOND 12. SEND NOTICE OF SERVICE COPYTONAMEANDADDRESS BELOW: (Thisarea must be completed lf notice is to be mailed CUNBERLAND CO. SHERZFF 13. lacknowledgereceiptof~ewdt RD AHRENS ~4. DATE RECEIVED or complai.t as indicated above, / 12 - 13 - 01 16. HOWSERVED: PERSONAL(~" RESIDENCE(~''~ POSTED( ) POE( ) SHERIFF'S OFFiCE ( ) OTHER( ) SEE REMARKS BELOW 17.~ I hereby c~rtify and return a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) lit~ II~AMEANJ:).TIT~OFiNDIVIDUALSERVED/LiSTADDRESS HEREiF NOT SHO'~%I ABOVE (I)elationshiptoDetundap. t) ~, I 19. j)afoofyService I 20. TirneofServioe 22. REMARKS: 23, Advance Costs 24, Service Costs 25. N/F 26, Mileage 27, Postage 28. SubTotal 29. Pound 30. Nofary 31,Surchg. 32. Tut. Co,ts 33. C4~tsDue0rReftmd CheckN~- SO ANSWERS 41. AFFIRMED and subscdded to before me this ' 1447 I of ~.,~ ~.~' ~/.~-- .d , 145D~T_E .~TE '~ - 44, Signature of I ' I N~IARIAL St:AL %.~'do,,.u.~h... c~ ~ - ~ ./. ~-~ · / I ~ Jl J~ELISSA J. SHAFFE", No_~ P~ FOE WI,L-LIAM M. HOSEQ~, ~ ~/./~ ~'~"~ .~-._~j~~ 1-7-02 //// I// Ci~'/ of York, York0~"~'~/.m - .,'r -.;,- 149 DATE - 5(~. I AC~OWLEDGE RECEIPT OF THE SHERIFF'S ~r0RN/SlGNATU~R~ ,. , I 51 DATE RECEIVED OF~.AUTHORIZED ISSUING AUTHORITY AND TITLE , 1. WHITE - Issuing Author~ 2. PiNK - Attorney 3. CANARY - Sheitffs Office 4. BLUE - Sher~s Office lof2 COUNTY OFYORK OFFICE OF THE SHERIFF 28 EAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT and AFFIDAVIT OF RETURN 1. PLAINTIFF/S/ 3 DEFENDANT/S/ SERVEAT SERVICE CALL (717) 771-9601 Tereace Smith et al [ ]~c°(~[T-'l~Rci'v'il TYPE OF ~IT OR COMP~INT Aoo~n~ T~nd~oap~q Inc.] Writ of S~ns ~. ~E OF mND~DUAL, OO~PANY. ~ORPO~TmON, ETC TO SERVE OR QES~RIPTION O~ PROPSR~ TO ~5 L~, A~AOH~Q, OR SOLD. ~vid E. ~ 6. ADDRESS (STREET OR RFO '~ITH BOX NUMBER, APT NO., CtTY, BoRg, TWP., STATE AND ZIP CODE) 1636 Wiltia~s Grove R~d Dillsb~g, PA 17019 7 INDICATE SERVICE: r~ PERSONAL 0 PERSON IN CHARGE XX~DEPUT~ZE L-,l~l~ef~z~l C3 IST CLASS MAIL C3 POSTED C3 OTHER NOW December 10 ,20 01 I, SHERIFF OFI!~COUNTY. PA. do hereby deputize the sheriff of zulu, COUNTY to execute this Writ and make return thereof according to law. This deputization being made at the request and risk of the plaintiff. -~/ //~ 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: Cumberl~o OUT OF COUNTY CUMBERLAND ADVANCED~FEE PAID BY SHERIFF NO~E: ONLY APPLICABLE ON W~IT OF EXECUTION: N.B. WAIVER OF WATCHMAN. Any deputy shedlf levying upon or attaching any property unrier within writ may leave same without a watchman, in custody of whomever is found in I:)O~seseion, after notifying person of levy or attachment, without liability on the pert of such deputy or the sheriff to any plaintiff herein for any loss, desh'ucbon, o~,removal o{ any property befo*e shedti's sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY I ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER 11. DATE FILED r,,JOHNSTONA.. .., , & DIAI~IOND.. , ~.,,, PC~,,~.STE ~00, 150 CORPORATE CI:R. PO BOX 98 975-5500 12-7-01 12. ~')~)'No~r~E'O~I SI~Ik~/IC E'~Cb~¥ 'h~ )~dk~'"AN D ADDRESS BELOV~ (This area must be completed if notice is th be mailed}. CUMBERLAND CO. SHERIFF 13. I acknowledge receipt of thewri[ 14. DATE RECEIVED 15. Expiratio~/Hearthg Date or complaint as indicated above. R. AHRENS ... 12-13-01 IXX)~XIBXX)______~ n~ t6. HOWSERVED: PERSONAL(~)/~ RESIDENCE~'~'~ POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW 17. ~ I h~by ~r~ and return a NOT FOUND because I am unable to Ioca~ the individual, company, etc. named above. (See re~ b~.) 1~ i~I,~M ~, AND "F~T~E OF INDIVIDUAL SERVED I LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) ) 19. ,pate of/Service I 20. Time of Service 22. REMARKS: ~,.)23. Advance Costs 24. ServiceCoMs 25. N/F 26. Mileage 27. Postege 28. SubTotal 2g. Pound 30. Notary 31.Surchg. $2. Tot. Cos~ 33C0~tsDu~.~elund I~heckNo. 100.0024.00 134.08 I I 58.08 [ I 4.00 I 62.081 37.92"-"T/5;0 : THE SHERIFEF~S,~RETURN SIGNATURE 51. DATE RECEIVED OR UTHORIZED ISSUING AUTHORITYAND~'ITLE i Wi-lITE - Issuing Authority 2. PINK - Attorney 3. CANARY - Sheriffs Office 4. BLUE - Sher~s Office TERENCE SMITH and PATRICIA SMITH, husband and wife, Plaintiffs ACCENTS LANDSCAPING, INC., a Pennsylvania Corporation, and DAVID E. FUREMAN, Defendants : IN TIlE COURT OF cOMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-6927 Civil : CML ACTION - LAW _DEFENDANTS' ANSWER pARTIES 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. _REPRESENTATIONS OF DEFENDANTS. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Denied. Defendant believes and therefore avers that E.P. Ilenry does not have a list of approved contractors. 12. for five years. 13. 14. Denied. Defendant did not fully warrant his construction, supplies and plantings fully Denied. Defendant has no knowledge of such example of a wall falling down. Denied. The terms of the contract specifically permit additional charges to be made by the contractor. 15. Admitted. 16. Admitted. 17. Admitted. 18. Denied. While the Plaintiffs may not have know that Accents Landscaping was a corporation, such information is a matter of public record. 19. Admitted. 20. Admitted. 21. Admitted. 22. Denied. Plaintiffs had an obligation to locate the rear boundary. 23. Denied. Defendant has no knowledge of what is meant by the Plaintiffs' use of the term fully insured. Defendant has workers' compensation insurance and liability insurance. 24. Denied. Defendant denies that any general five-year warranty was issued. 25. Admitted. 26. Admitted. 27. Admitted. 28. Admitted. PROFESSIONAL DESIGN SERVICES PERFORMED BY DEFENDANTS 29. Admitted. 30. Denied. The Defendant has no knowledge of Computer Aided Design plans and further denies that any plans presented to Plaintiffs were required to be signed by a licensed engineer, landscape architect or general architect. 31. Admitted. 32. Admitted. 33. Denied. The activities undertaken by the Defendant were not subject to professional licensing laws. 34. Denied. The activities undertaken by the Defendant were not subject to professional licensing laws. 35. Denied. The activities undertaken by the Defendant were not subject to professional licensing laws. 36. Denied. The activities undertaken by the Defendant were not subject to professional licensing laws. 37. Denied. The activities undertaken by the Defendant were not subject to professional licensing laws. DEFECTIVE DESIGN AND/OR WORK OF DEFENDANTS 38. Admitted. 39. Admitted. 40. Denied. Defendant believes and therefore avers that E.P. Henry does not have a list of approved contractors. 41. Admitted. 42. Denied. The E.P. Henry specifications for use of the Coventry Wall decorative block changed every year for the last three years. Defendant believes and therefore avers that the earliest specifications advanced by E.P. Henry were met. 43. Denied. The E.P. Henry specifications for use of the Coventry Wall decorative block changed every year for the last three years. Defendant believes and therefore avers that the earliest specifications advanced by E.P. Henry were met. 44. Admitted. 45. Denied. Defendant believes and therefore avers that E.P. Henry does not have a list of approved contractors. 46. Denied. Defendant believes and therefore avers that E.P. Henry does not have a list of approved contractors. 47. Admitted. 48. Admitted. DEFECTS AND FAILURES OF STRUCTURES 49. Denied. Defendants have no knowledge of what Plaintiffs began to see. 50. Denied. Defendants have no knowledge of how quickly Plaintiffs notified them of what they were alleged to have seen. 51. Admitted. 52. Denied. Defendants remedial work was neither sloppy, nor performed in an unworkmanlike manner. Any visible adhesive was minimal. 53. Denied. Defendant believes and therefore avers that the remedial work was not improper and did not result in the alleged failure. 54. Denied. The construction of the steps was within the design parameters. 55. Denied. The retaining wall has not failed and the staircases are not hazardous. 56. Denied. The Plaintiffs established the location of all plantings and the boundary line. 57. Admitted. REFUSAL TO REMEDY CONTINUING DEFECTS 58. Admitted. 59. Denied. The contract clearly calls for additional monies to be paid under unusual circumstances. Defendant requested that Plaintiffpay for additional material which would be used to tie in the retaining wall to the retained earth. 60. Denied. The retaining wall remains erect, although it has a bulge. FINAL NOTICE OF CLAIM TO DEFENDANTS 61. Admitted. 62. Admitted. 63. Admitted in part, Denied in part. It is admitted that the Defendant has refused to take action, but it is denied that what the Plaintiffrefers to as necessary corrective action is required. 64. Admitted in part, Denied in part. It is admitted that the Defendants arc not insured with Errors and Omissions coverage, but it is denied that the Defendants are not fully covered. The only insurance required is workers' compensation and liability insurance. 65. The paragraph alleges a conclusion of law for which is an answer is not required. 66. The paragraph alleges a conclusion of law for which is an answer is not required. 67. 68. 69. 70. 71. 72. 73. The paragraph alleges a conclusion of law for which ~s an answer ~s not required. The paragraph alleges a conclusion of law for which ~s an answer ~s not required. The paragraph alleges a conclusion of law for which is an answer ~s not required. The paragraph alleges a conclusion of law for which is an answer is not required. The paragraph alleges a conclusion of law for which is an answer ~s not required. The paragraph alleges a conclusion of law for which xs an answer is not required. Denied. While Plaintiffs may believe that the cost of bringing the retaining wall and steps to their own standards will be a certain amount, the Defendants contend that the amount would be significantly less. 74. Denied. While Plaintiffs may believe that the cost of bringing the retaining wall and steps to their own standards will be a certain amount, the Defendants contend that the amount would be significantly less. 75. Denied. shrubbery. 76. Admitted. 77. 78. 79. There is no reason to believe that any remedial work result in the loss of The paragraph alleges a conclusion of law for which is an answer is not required. The paragraph alleges a conclusion of law for which is an answer is not required. Admitted in part, Denied in part. It is admitted that David E. Fureman is the owner and sole stockholder of Accents Landscaping, Inc. It is denied that the term alter-ego is applicable. 80. Admitted in part, Denied in part. It is admitted that $ 25,000 is beyond the threshold of mandatory arbitration, but it is denied that the potential liability of this case exceeds this amount. 81. reference. 82. 83. 84. 85. 86. reference. 87. 88. 89. reference. 90. 91. COUNT I BREACH OF CONTRACT/EXPRESS AND IMPI,IEI) WARRANTY The answers set forth in Paragraphs 1 through 80 herein are incorporated by The paragraph alleges a conclusion of law for which is an answer is not required. The paragraph alleges a conclusion of law for which is an answer is not required. The paragraph alleges a conclusion of law for which is an answer is not required. The paragraph alleges a conclusion of law for which is an answer is not required. COUNT II NEGLIGENCE The answers set forth in Paragraphs 1 through 85 herein are incorporated by The paragraph alleges a conclusion of law for which is an answer is not required. The paragraph alleges a conclusion of law for which is an answer is not required. COUNT III FRAUD The answers set forth in Paragraphs 1 through 88 herein are incorporated by The paragraph alleges a conclusion of law for which is an answer is not required. The paragraph alleges a conclusion of law for which is an answer is not required. COUNT IV UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW CLAIMS 92. The answers set forth in Paragraphs I through 91 herein are incorporated by reference. 93. Admitted. 94. The paragraph alleges a conclusion of law for which is an answer is not required. 95. Denied. It is denied that the improvements were below the standards or quality agreed to. It is further denied that the improvements were not executed in a workmanlike manner. 96. The paragraph alleges a conclusion of law for which is an answer is not required. WHEREFORE, Defendant demands judgment in his favor and dismissal of the complaint. Date: Respectfully submitted, David T. Kluz, Esquire ~ I.D. # 18005 212 Locust Street, Suite 404 Harrisburg, PA 17101 (717)238-8183 Attorney for Defendants VERIFICATION I, DAVID E. FUREMAN, verify that the statements made in the foregoing document are hue and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn falsification to authorities. David E. Fureman CERTIFICATE OF SERVIC~ I, ELLEN M. PALMER, Legal Assistant, certify that I have served a copy of the foregoing document on the individual listed below by depositing the same in the United States Mail, First Class, postage prepaid, at Harrisburg, Pennsylvania: James A. Diamond, Esquire Johnston & Diamond Suite 100, 150 Corporate Center Drive P.O. Box 98 Camp Hill, PA 17001-0098 Date: 212 Locust Street, Suite 404 Harrisburg, PA 17101 (717)238-8183