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Home My WebLink About09-6807SUDHAKAR BALASANKAR, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION -LAW V. METCO, INC., : NO. Oq -(0807 Cw i l Term Defendant : Jury Trial Demanded 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siquientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICION, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 AGER & ADLER, P.C. BY: JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: JpietrzakaRea ergs AdlerPC.com BY: THOMAS O. WILLIAMS Attorney I.D. No. 67987 Email: Twilliams@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Sudhakar Balasankar SUDHAKAR BALASANKAR, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : CIVIL ACTION -LAW V. METCO, INC., : NO. Defendant : Jury Trial Demanded COMPLAINT Plaintiff Sudhakar Balasankar (hereinafter "Plaintiff') is an adult individual with an address of 114 Ellesmere Lane, Mechanicsburg, Pennsylvania 17055 (hereinafter the "Property"). 2. Defendant Metco, Inc. (hereinafter "Metco") is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with its principal place of business located at 504 Douglas Road, Hummelstown, PA 17036. 3. On or about January 8, 2007, Plaintiff and Metco entered into a written contract pursuant to which Metco agreed to provide the labor and materials necessary to erect a retaining wall on the Plaintiff's property and Plaintiff agreed to pay Metco the amount of $20,000.00 (hereinafter the "Contract"). A true and correct copy of the January 8, 2007 contract is attached hereto as Exhibit "A". 4. Metco completed the installation of the retaining wall on or about January 22, 2007. The retaining wall was constructed using K-Rock modular concrete blocks and measured approximately 80 feet long, eight feet high and two feet thick. 5. On or about June 17, 2009, a large portion of the retaining wall collapsed, causing extensive damage to the retaining wall and surrounding property. 6. The collapse of the retaining wall caused extensive damage to other parts of Plaintiff's Property, including, but not limited to: landscaping, a fence, a basketball court, a concrete pad near an adjacent swimming pool and an in-ground irrigation system. 7. The retaining wall collapsed due to Metco's defective construction, including but not limited to Metco's failure to install proper reinforcing. 8. Plaintiff has obtained an estimate to remove the defective retaining wall and replace it with a new retaining wall. The estimated cost of this work is at least $38,675.00 9. The removal and replacement of the retaining wall will cause damage to Plaintiff s lawn and irrigation system. The estimated cost to repair this damage is at least $3,000.00 10. Plaintiff has obtained an estimate to replace the fence that was damages by the collapse of the retaining wall. The estimated cost of this work is at least $4,280.00. 11. Plaintiff has obtained an estimate to replace the landscaping that was damaged by the collapse of the retaining wall. The estimated cost is $500.00. 2 12. Plaintiff has obtained an estimate to replace the concrete slab near the swimming pool that was damaged by the collapse of the retaining wall. The estimated cost is $3,500.00. 13. Plaintiff will also have to incur costs to repair and/or replace the basketball court that was damaged by the collapse of the retaining wall, at an additional cost. COUNTI BREACH OF CONTRACT 14. Plaintiff incorporates herein by reference the averments of paragraphs 1 through 13 above as if set forth fully herein. 15. Under the written Contract, Metco owed a duty to Plaintiff to perform and complete its work in a workmanlike manner. 16. Metco's defective construction of the retaining wall constituted a breach of its duty under the written Contract. 17. As a result of Metco's breach of the Contract, Plaintiff has suffered damages in an amount in excess of $50,000.00. 18. Plaintiff has not fully determined all of the damages suffered as a result of Metco's breach of contract and reserves the right to supplement the damages listed above. WHEREFORE, Plaintiff Sudhakar Balasankar respectfully requests this Honorable Court to enter judgment in its favor and against the Defendant, Metco, Inc. on Count One of its Complaint, in an amount in excess of $50,000.00, plus interest, costs and such other relief as the Court deems appropriate. COUNT II VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 19. Plaintiff incorporates herein by reference the averments of paragraphs 1 through 18 above as if set forth fully herein. 20. Pursuant to the Contract, Metco agreed to perform its work in a workmanlike manner. 21. Metco's work was of a nature or quality inferior to or below the standard of that it agreed to provide in the written Contract. 22. Metco's failure to perform its work in a workmanlike manner is a violation of the Unfair Trade Practices and Consumer Protection Law, 73 Pa.C.S.A. § 201-2(4)(xvi). 23. Plaintiff has suffered damages in excess of $50,000 due to Metco's violation of the Unfair Trade Practices and Consumer Protection Law. WHEREFORE, Plaintiff Sudhakar Balasankar respectfully requests this Honorable Court to enter judgment in its favor and against Defendant Metco, Inc. on Count Two of its Complaint in an amount equal to three times Plaintiffs actual damages, which are in excess of $50,000.00, plus costs, interest and attorney's fees. COUNT III NEGLIGENCE 24. Plaintiff incorporates herein by reference the averments of paragraphs 1 through 23 above as if set forth fully herein. 4 25. Metco owed a duty to Plaintiff to exercise reasonable care and to possess the requisite skill and knowledge expected of contractors in the construction industry when constructing the retaining wall on Plaintiff's property. 26. Metco breached its duty to Plaintiff by failing to use such reasonable care, skill and knowledge when it constructed the retaining wall in an improper and deficient manner. 27. Metco's negligence was the proximate cause of the collapse of the retaining wall. 28. As a result of the collapse of the retaining wall, Plaintiff has suffered damages in excess of $50,000.00. WHEREFORE, Plaintiff Sudhakar Balasankar respectfully requests this Honorable Court to enter judgment in its favor and against the Defendant, Metco, Inc. on Count Three of its Complaint, in an amount in excess of $50,000.00, plus interest, costs and such other relief as the Court deems appropriate. Respectfully submitted, REAGER & ADLER, P.C. Date: October 14, 2009 Jo H. Pietrzak, Es4 hire Attorney I.D. No. 79538 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011-464 Telephone: (717) 763-1383 Attorneys for Plaintiff ?? ? // PROPOSAL. METCO, Inc. P ROPOGa. o? 504 Douglas Road SHEU NO. Hummelstown, PA 17036 IaF / Ph/Fax: 717-566-1028 GATE I /y/a-7 PROPOSAL SUBMIT I W IU: NAME v? kar a??San 1Car ADDRESS IN C I /E g Ire re LA ?-c Me??a?cs? ,? ?7C)S r " PHONE NO.-7t -7 WORK TO BE PERFORMED AT 114 6-/l be 5 Nt -f c- Lit DATE OF We hereby propose to fumish the materials and perform the labor necessary for the completion of Ad (0 /ZeAt. ??? 1/ kFi 11 4 C ., _ R k 4SAW, L xaA ,Vw-le Fes' 6)F `,?c-Pq n•? 4.f 9 u s ,4`e I a.k L Crsr•?.?1 "Pt to 4C Gbv?-ecvY?e't oT' k B ?? ;k q " ;r- 'for .-s a...e ,8-4i'4 c, -'y 144 5LAer " bw MK e - No-( P_±j a ?b lc go-r t Q C7•?« _Q a?,c---7"? l?N ?.ta. ra, f f M' Se j.,y 2 &j2o% w+ 63.1fa 14 Ab , $ol All material is guaranteed to be as specified, and the above work to be performed in accordance with the drawings and specifications submitted for above work, and completed in a substantial workmanlike manner for the sum of `?we.•,P % 4206gecf - Dollars ($ 'QQQ00 o with payments to be made. as follows: (o p ?/o a e' tld •? 8 /d7 ch 4 sjo0,m.. qo% 5 .•?lr.-tl-? .,??, Gon ple-ba., c F' "J(d t X 8,000, W Respectfully submitted Lie, %Aoui Any alteration or deviation from above spec iications involving extra costs will be executed only upon written order, and will become an extra charge Per_11AI of CAc over and above the estimate. All agreements contingent upon strikes, ac- cidents, or delays beyond our control. Note -This proposal may be withdrawn by us if not accepted within -__._days. ACCEPTANCE OF PROPOSAL The above prices, specifications and conditions are satisfactory and are hereby ac ed. Y are authorized to do the work as specified. Payments will be made as outlined above. Signature Date P Signature VERIFICATION I, Sudhakar Balasankar verify that the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. r Date: IdtCl By: dl--91- 1 41-JI Sudhakar Balasankar 0 RED ;} = 1 THE 2OG9 OC i 13 Pf4 2: ? u }+ ., t _.1 ?I ? 1 9,th ? Ja 08.50 PO Am( cOa( pl* a318q 9 Sheriffs Office of Cumberland County R Thomas Kline FILE }-Cf _ E Sheriff OF THE P; i??'r ?,?k?TAW ?ntti??ta pt 4. +iu+ber/;??tb Ronny R Anderson Chief Deputy u ZOII9 OCT zg Am g' 4 Jody S Smith Civil Process Sergeant OFfi e CUM[- LA-114) ?C r•?$J+? PE 4't"SYLVANIA Edward L Schorpp Solicitor Sudhakar Balasankar vs. Metco, Inc. Case Number 2009-6807 SHERIFF'S RETURN OF SERVICE 10/14/2009 R. Thomas Kline, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Metco, Inc., but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Complaint and Notice according to law. 10/27/2009 03:47 PM - Dauphin County Return: And now October 20, 2009 at 1547 hours I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint, upon the within named defendant, to wit: Metco, Inc. by making known unto Deanna Muller, Attorney at 504 Douglas Road Hummelstown, PA 17036 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $37.00 SO ANSWERS, October 27, 2009 R THOMAS KLINE, SHERIFF WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP By: Andrew R. Benedict, Esquire ID# 87939 2000 Market Street 13th Floor Philadelphia, PA 19103 (215) 972-7900 SUDHAKAR BALASANKAR Attorney for Defendant, METCO, Inc. : COURT OF COMMON PLEAS : CUMBERLAND COUNTY vs. METCO, INC. No.: 09-6807 CIVIL TERM : JURY TRIAL DEMANDED Entry of Appearance And Jury Demand TO THE PROTHONOTARY: Kindly enter my appearance on behalf of the Defendant, METCO, Inc. Defendants demand a trial by jury with twelve (12) jurors. Respectfully submitted, WEBER GA AGHER SIMPSON STAPLET jJ7S & NEWBY, LLP By: Andrew R. Benedict, Esquire Attorney for Defendant METCO, Inc. Date: h129161 FlLED-u???UE 2004 NOV -2 Pty 3: 11 PEi NSYLb'ANI A. WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP By: Andrew R. Benedict, Esquire ID# 87939 2000 Market Street 13th Floor Philadelphia, PA 19103 (215) 972-7900 TO THE PLAINTIFF: Please be advis d that you are required to respond to the Newter and cross claims within 20 days or a Judg t p*Ae entered against you. Andfew R. Benedict, Esquire Attorney for Defendant, METCO, Inc. SUDHAKAR BALASANKAR COURT OF COMMON PLEAS CUMBERLAND COUNTY VS. METCO, INC. ; No.: 09-6807 CIVIL TERM JURY TRIAL DEMANDED ANSWER OF DEFENDANT, METCO, INC., TO PLAINTIFF'S COMPLAINT, WITH NEW MATTER I. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and accordingly demands strict proof thereof. 2. Admitted. 3. Denied as stated. It is admitted only that Answering Defendant and plaintiff entered into a contract. By way of further answer, the contract is a document which speaks for itself. 4. Admitted. 5. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and accordingly demands strict proof thereof. 6. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and accordingly demands strict proof thereof. 7. Denied. It is specifically denied that the retaining wall collapsed due to defective construction by, or on behalf of Answering Defendant. 8. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and accordingly demands strict proof thereof. 9. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and accordingly demands strict proof thereof. 10. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and accordingly demands strict proof thereof. 11. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and accordingly demands strict proof thereof. 12. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and accordingly demands strict proof thereof. 13. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and accordingly demands strict proof thereof. COUNTI Breach of Contract 14. Answering Defendant incorporates herein by reference its answers to paragraphs 1 through 13 as though each were fully set forth herein at length. 15. Denied. This averment states a conclusion of law to which a responsive pleading is not required. To the extent that such a pleading is required, Answering Defendant denies that it did not perform and complete its work in a workman like manner. 16. Denied. This averment states a conclusion of law to which a responsive pleading is not required. To the extent that such a pleading is required, Answering Defendant denies this averment. 17. Denied. This averment states a conclusion of law to which a responsive pleading is not required. To the extent that such a pleading is required, Answering Defendant denies this averment. 18. Denied. This averment states a conclusion of law to which a responsive pleading is not required. To the extent that such a pleading is required, Answering Defendant denies this averment. WHEREFORE, Answering Defendant, Metco, Inc., respectfully requests that this Honorable Court grant judgment in its favor and dismiss Plaintiff's Complaint with prejudice. COUNT II Violation of the Unfair Trade Practices and Consumer Protection Law 19. Answering Defendant incorporates herein by reference its answers to paragraphs 1 through 18 as though each were fully set forth herein at length. 20. Denied. This averment states a conclusion of law to which a responsive pleading is not required. To the extent that such a pleading is required, Answering Defendant denies that it did not perform and complete its work in a workman like manner. 21. Denied. This averment states a conclusion of law to which a responsive pleading is not required. To the extent that such a pleading is required, Answering Defendant denies that its work was of a nature or quality inferior to or below the standard of that agreed to in the written contract. 22. Denied. This averment states a conclusion of law to which a responsive pleading is not required. To the extent that such a pleading is required, Answering Defendant denies that it did not perform and complete its work in a workman like manner. 23. Denied. This averment states a conclusion of law to which a responsive pleading is not required. To the extent that such a pleading is required, Answering Defendant denies this averment. WHEREFORE, Answering Defendant, Metco, Inc., respectfully requests that this Honorable Court grant judgment in its favor and dismiss Plaintiff's Complaint with prejudice. COUNT III Negligence 24. Answering Defendant incorporates herein by reference its answers to paragraphs 1 through 23 as though each were fully set forth herein at length. 25. Denied. This averment states a conclusion of law to which a responsive pleading is not required. To the extent that such a pleading is required, Answering Defendant denies this averment. 26. Denied. This averment states a conclusion of law to which a responsive pleading is not required. To the extent that such a pleading is required, Answering Defendant denies this averment. 27. Denied. This averment states a conclusion of law to which a responsive pleading is not required. To the extent that such a pleading is required, Answering Defendant denies this averment. 28. Denied. This averment states a conclusion of law to which a responsive pleading is not required. To the extent that such a pleading is required, Answering Defendant denies this averment. WHEREFORE, Answering Defendant, Metco, Inc., respectfully requests that this Honorable Court grant judgment in its favor and dismiss Plaintiff's Complaint with prejudice. NEW MATTER 29. Plaintiff's Complaint fails to state a claim upon which relief can be granted. 30. No omissions or conduct on the part of defendant contributed to plaintiff's damages, if any. 31. Plaintiff failed to mitigate his damages. 32. The damages complained of by plaintiff pre-existed or are unrelated to the incident which is the subject matter of this Complaint. 33. The negligence of plaintiff either bars plaintiff's right to recover completely or reduces plaintiff's claims based upon the extent of plaintiff's negligence under the Doctrine of Comparative Negligence. 34. Plaintiff's alleged damages, if any, were the result of an unavoidable accident or sudden emergency. 35. Plaintiff's alleged damages were proximately caused in whole, or in part, by the bulk of third parties, including plaintiff, for whom defendant is not legally responsible. 36. Plaintiff's claims are barred by the applicable statute of limitations. 37. Service of process was improper and/or insufficient. 38. This Honorable Court lacks jurisdiction over defendant. 39. It is further specifically denied that any act or omission on the part of defendant was the sole or proximate cause of plaintiff's alleged damages or injuries. 40. At all times relevant herein, defendant acted in accordance with the applicable state and federal laws. 41. Plaintiff's claims for damages are excessive and unsupported and, therefore, must be barred or reduced. 42. Defendant had no notice. 43. In as much as Pa.R.C.P. 1032 provides that if a party waives all defenses not presented by way of answer, defendant, upon advice of counsel, hereby asserts all of the affirmative defenses set forth in Pa.R.C.P. 1010(a). 44. Answering Defendant did not violate the Unfair Trade Practices and Consumer Protection Law 73 Pa.C.S.A. § 201-2(4)(xvi). WHEREFORE, Answering Defendant, Metco, Inc., demands judgment in its favor and against the plaintiff together with costs and disbursements incurred by defendant, including attorney's fees, together with other such relief in favor of defendant, as this Honorable Court shall deem appropriate under the circumstances. Respectfully submitted, WEBER GAL GHER SIMPSON STAPLETO S & NEWBY, LLP By: i/I Andrew R. Benedict, Esquire Attorney for Defendant METCO, Inc. Date: didai Nov 17 09 05:19p 717-566-1028 p.2 VERIFICATION I, Denise Moritz, state that the facts set forth in the foregoing Answer of Defendant Metco, Inc. to the Plaintiff's Complaint with New Matter is true and correct to the best of my knowledge, information and belief. I understand that the statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. "'17 , '(J? D I E M ITZ CERTIFICATE OF SERVICE I, Andrew Benedict, Esquire, hereby certify that on this j day of NOV , 2009 a true and correct copy of Answer of Defendant Metco, Inc. to the Plaintiff s Complaint with New Matter was forwarded by First Class United States Mail, postage pre-paid, to the following: John H. Pietrzak, Esquire Thomas O. Williams, Esquire REAGER & ADLER, PC 2331 Market Street Camp Hill, PA 17011 WEBER GALLAGHER SIMPSON STAPLETON F S & NEWBY, LLP By: Andrew R. Benedict, Esquire Rau. OF THE F ;? ~( NOTARY 2009 NOY 24 AM 9: 17 IP "J, Flt.ED-Q4-riC~ OF THE PPt?T~t4'~l4TAf~Y 20i0 FEB -4 PM 2~ 54 CUt~~~~; ~ ~~~ i~'~vid7Y C#~i V1V~?~V1~'~~f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION: LAW SUDHAKAR BALASANKAR, Plaintiff vs. METCO, INC, vs. FOX POOLS, INC., Additional Defendant No. 09-6807 Civil Action NOTICE TO PLEAD TO: Metco, Inc. c/o Andrew R. Benedit, Esquire 200 Market St., 13th F1. Philadelphia, PA 19103 You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may entered against you. MORRIS &VEDDER 32 N. DUKE ST. DATED : February 3 , 2 010 YORK, PA MORRIS & VEDDER BY: Clyde W. Vedder Esquire 32 N. Duke St. PO Box 544 York, PA 17405 (717) 843-9815 Supreme Court No. 32098 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION: LAW SUDHAKAR BALASANKAR, No. 09-6807 Plaintiff vs. METCO, INC, vs. FOX POOLS, INC., Additional Defendant Civil Action ADDITIONAL DEFENDANT'S PRELIMINARY OBJECTIONS MORRIS & VEDDER 32 N. DUKE ST. YORK, PA AND NOW, TO WIT, this 3rd day of February, 2010, comes Fox Pool Corporation, by its attorneys, Morris & Vedder, and preliminarily objects to Defendant's joinder complaint, of which the following is a statement: 1. On December 14, 2009, Defendant, Metco, Inc., hereinafter "Metco," initiated this proceeding against an entity identified as Fox Pools, Inc., by the filing of a joinder complaint. 2. Plaintiff's joinder complaint merely asserts that it was sued by a homeowner as the result of a wall it built having collapsed, Fox Pools, Inc. installing a swimming pool near the wall within six (6) months of the collapse and such circumstance making Fox Pools, Inc. culpable for the claim. 3. Fox Pool Corporation appears in this action for the limited purpose of filing preliminary objections and for no other purpose. 4. By this filing, Fox Pool Corporation does not accept MORRIS & VEDDER 32 N. DUKE ST. YORK, PA service. 5. Fox Pool Corporation further contends that its participation in this proceeding for the limited purpose of having these preliminary objections judicially determined on the merits does not constitute effective service. COUNT I -FAILURE TO CONFORM TO Pa.R.C.P. 1024 6. Fox Pool Corporation incorporates the preceding paragraphs by reference as if fully set forth at length. 7. The verification attached to Plaintiff's complaint is executed by its legal counsel, Andrew R. Benedict, Esquire. 8. Pa.R.C.P. No. 1024 (c) requires that complaints be verified by a party, except in two limited instances not applicable here. Pa.R.C.P. No. 1024(c). 9. The verification does not allege that Metco lacks sufficient knowledge or information, nor does it allege that Metco is outside the jurisdiction of the court and its verification could not obtained within the time allowed for filing the pleading. 2 MORRIS & VEDDER 32 N. DUKE ST. YORK, PA 10. Pa.R.C.P. 1028(a)(2) provides that a party may preliminarily object by way or a motion to strike off a pleading because of lack of conformity to rule of court. Pa.R.C.P. 1028 (a) (2) . 11. Since Metco's complaint has not been verified as required, it is defective and must be stricken. WHEREFORE, Fox Pool Corporation respectfully requests your Honorable Court to sustain its preliminary objection regarding Metco's failure to attach a proper verification and to dismiss Plaintiff's complaint with prejudice and costs. COUNT II - LACK OF SERVICE 12. Fox Pool Corporation incorporates the preceding paragraphs by reference as if fully set forth at length. 13. No corporate entity exists in the Commonwealth of Pennsylvania under the name of Fox Pools, Inc. 14. A cursory search of the Department of State's business name records reveals three filings of persons or entities using the name Fox Pools, Inc., two (2) of which are fictitious names of individuals and the third has been withdrawn. 15. Metco served Fox Pool Corporation, not Fox Pools, Inc., the named additional defendant purportedly joined to this action. 16. Unless and until Plaintiff's complaint is served upon the identified entity, Fox Pools, Inc., it is legally 3 insufficient and the joinder complaint should be stricken from this action. WHEREFORE, Fox Pool Corporation respectfully requests your Honorable Court to sustain its preliminary objection regarding lack of service and to dismiss Plaintiff's complaint with prejudice and costs. COUNT III -DEMURRER MORRIS & VEDDER 32 N. DUKE ST. YORK, PA 17. Fox Pool Corporation incorporates the preceding paragraphs by reference as if fully set forth at length. 18. As noted above, Metco's joinder complaint does not identify any specific cause of action to implicate Fox Pools, Inc. except for timing. 19. As best one can discern, Metco alleges that the mere circumstance of Fox Pools, Inc. having installed a pool near the retaining wall within six (6) months of the collapse is reason enough on its own for such joinder. 20. Metco's supposition stand for nothing more than the well known logical fallacy "Post Hoc, Ergo Propter Hoc," that is, Event C happened immediately prior to event E. Therefore, C caused E. 21. Metco has committed the Post Hoc Fallacy is whenever one reasons to a causal conclusion based solely on the supposed cause preceding its "effect." 22. While it is a necessary condition of causation that 4 the cause precede the effect, such circumstance on its own is not a sufficient condition. 23. Before such evidence can suggest the hypothesis of a causal relationship, further testing is required none of which has been alleged here. 24. Metco's allegations standing alone manifest nothing more than one having reached an erroneous conclusion based upon mere coincidence. WHEREFORE, Fox Pool Corporation respectfully requests your Honorable Court to strike Metco's Complaint on the basis of its demurrer and to dismiss Fox Pools, Inc. as a party defendant in this action with prejudice and costs. Respectfully submitted, MORRIS & VEDDER BY: Clyde W. Vedde squire 32 N. Duke St. PO. Box 544 York, PA 17405 (717) 843-9815 Supreme Court No. 32098 Doc. No. Cwv27768 MORRIS &VEDDER 32 N. DUKE ST. YORK, PA 5 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION: LAW MORRIS &VEDDER 32 N. DUKE ST. YORK, PA SUDHAKAR BALASANKAR, No. 09-6807 Plaintiff vs. METCO, INC, vs. FOX POOLS, INC., Additional Defendant Civil Action CERTIFICATE OF SERVICE I, Stephanie M. Warehime, Secretary to Clyde W. Vedder, Esquire, of the law firm of Morris & Vedder, 32 North Duke Street, PO Box 544, City of York, York County, Commonwealth of Pennsylvania, 17405, do hereby certify that on this 3rd day of February, 2010, I served a true and correct copy of the Additional Defendant's Preliminary Objections, by placing the same in the United States mail, postage prepaid to: John H. Pietrzak, Esquire Andrew R. Benedict Esquire 2331 Market St. 2000 Market St., 13th Fl. Camp Hill, PA 17011 Philadelphia, PA 19103 MORRIS & VEDDER BY S phanie M. Warehime, Secretary to Clyde W. Vedder, Esquire FII~?-Or~ bF THiE p~~T!-lOTAF?Y 2Q10 MAR - I PN 3= ~0 ~~Idl~S~'LV IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION: LAW SUDHAKAR BALASANKAR, No. 09-6807 Plaintiff vs. METCO, INC, . vs. FOX POOLS, INC., . Additional Defendant Civil Action NOTICE TO PLEAD T0: Metco, Inc. c/o Andrew R. Benedict, Esquire 200 Market St . , 13th Fl . Philadelphia, PA 19103 You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may entered against you. DATED: February 25, 2010 MORRIS &VEDDER _ 32 N. DUKE ST. YORK, PA MORRIS & VEDDER BY: Clyde W. Vedder~" Esquire 32 N. Duke St. PO Box 544 York, PA 17405 (717) 843-9815 Supreme Court No. 32098 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION: LAW SUDHAKAR BALASANKAR, Plaintiff vs. ~METCO, INC, vs. FOX POOLS, INC., Additional Defendant No. 09-6807 Civil Action ADDITIONAL DEF'ENDANT'S PRELIMINARY OBJECTIONS TO DEFENDANT'S AMENDED JOINDER COMPLAINT MORRIS & VEDDER 32 N. DUKE ST. YORK, PA AND NOW, TO WIT, this 25th day of February, 2010, comes Fox Pool Corporation, by its attorneys, Morris & Vedder, and preliminarily objects to Defendant's joinder complaint, of which the following is a statement: 1. On December 14, 2009, Defendant, Metco, Inc., hereinafter "Metco," initiated this proceeding against an entity identified as Fox Pools, Inc., by the filing of a joinder complaint. 2. On February 4, 2010, Fox Pool Corporation filed preliminary objections to Metco's joinder complaint. 3. On or about February 23, 2010, Metco filed an amended joinder complaint. 4. Metco's amended joinder complaint merely asserts that a homeowner sued Metco as the result of a wall it built having collapsed, Fox Pools, Inc. installed a swimming pool improperly without "backfill" near the wall within six (6) months of the collapse, and such circumstance alone makes Fox Pools, Inc. culpable for the claim. See paragraphs 7, 8 and 12 of Metco's amended joinder complaint. 5. Curiously enough, Metco admits in its pleading that it was aware when it installed the wall where the homeowner intended to locate the pool, allegedly built two years later, and that upon learning of such intended location it deliberately did not reinforce the wall, simply burying the bottom of the wall instead. See paragraph 13 of Metco's amended joinder complaint. 6. Fox Pool Corporation appears in this action for the limited purpose of filing preliminary objections and for no other purpose. 7. By this filing, Fox Pool Corporation does not accept (service. 8. Fox Pool Corporation further contends that its MORRIS & VEDDER 32 N. DUKE ST. YORK, PA participation in this proceeding for the limited purpose of having these preliminary objections judicially determined on the merits does not constitute effective service. 2 COUNT I - FAILURE TO CONFORM TO Pa.R.C.P. 1024 MORRIS & VEDDER 32 N. DUKE ST. YORK, PA 9. Fox Pool Corporation incorporates the preceding paragraphs by reference as if fully set forth at length. 10. The verification attached to Plaintiff's complaint is executed by its legal counsel, Andrew R. Benedict, Esquire. 11. Pa.R.C.P. No. 1024 (c) requires that complaints be verified by a party, except in two limited instances not applicable here. Pa.R.C.P. No. 1024(c). 12. The verification does not allege that Metco lacks sufficient knowledge or information, nor does it allege that Metco is outside the jurisdiction of the court and its verification could not obtained within the time allowed for filing the pleading. 13. Pa.R.C.P. 1028(a)(2) provides that a party may preliminarily object by way or a motion to strike off a pleading because of lack of conformity to rule of court. Pa.R.C.P. 1028 (a) (2) . 14. Since Metco's complaint has not been verified as required, it is defective and must be stricken. WHEREFORE, Fox Pool Corporation respectfully requests your Honorable Court to sustain its preliminary objection regarding Metco's failure to attach a proper verification and to dismiss Plaintiff's complaint with prejudice and costs. 3 COUNT II - LACK OF SERVICE MORRIS & VEDDER 32 N. DUKE ST. YORK, PA 15. Fox Pool Corporation incorporates the preceding paragraphs by reference as if fully set forth at length. 16. No corporate entity exists in the Commonwealth of Pennsylvania under the name of Fox Pools, Inc. 17. A cursory search of the Department of State's business name records using the words "Fox Pools" reveals only three filings of persons or entities using such words, two (2) of which are fictitious names of individuals and the third bears the name Fox Pools of York, Inc., not Fox Pools, Inc. Copies of the Business Name History for the three entities are attached. 18. Metco served Fox Pool Corporation, not Fox Pools, Inc., the named additional defendant purportedly joined to this 'action. 19. Unless and until Plaintiff's complaint is served upon the identified entity, Fox Pools, Inc., it is legally insufficient and the joinder complaint should be stricken from this action. WHEREFORE, Fox Pool Corporation respectfully requests your Honorable Court to sustain its preliminary objection regarding lack of service and to dismiss Plaintiff's complaint with prejudice and costs. 4 COUNT III - DEMURRER MORRIS & VEDDER 32 N. DUKE ST. YORK, PA 20. Fox Pool Corporation incorporates the preceding paragraphs by reference as if fully set forth at length. 21. As noted above, Metco's joinder complaint does not identify any specific cause of action to implicate Fox Pools, Inc. except for timing and a general contention that it installed a pool near the wall improperly without any explanation how such installation affected the integrity of the wall. 22. As best one can discern, Metco alleges that the mere circumstance of Fox Pools, Inc. having installed a pool improperly near the retaining wall within six (6) months of the collapse is reason enough on its own for such joinder. 23. Metco's supposition stands for nothing more than the well-known logical fallacy "Post Hoc, Ergo Propter Hoc," that is, Event C happened immediately prior to event E. Therefore, C caused E. 24. Metco has committed the Post Hoc Fallacy by reasoning a causal conclusion based solely on the supposed cause preceding its "effect." 25. While it is a necessary condition of causation that the cause precedes the effect, such circumstance on its own is not a sufficient condition. 26. Before such evidence can suggest the hypothesis of a causal relationship, further testing is required none of which 5 has been alleged here. 27, Metco's allegations standing alone manifest nothing more than one having reached an erroneous conclusion based upon mere coincidence. WHEREFORE, Fox Pool Corporation respectfully requests your Honorable Court to strike Metco's Complaint based on its demurrer and to dismiss Fox Pools, Inc. as a party defendant in this action with prejudice and costs. Respectfully submitted, MORRIS & VEDDER BY : L-/~ ~ ~/~~ Clyde W. Vedde Esquire 32 N. Duke St. PO Box 544 York, PA 17405 (717) 843-9815 Supreme Court No. 32098 ~ Doc. No. Cwv27768-2 MORRIS &VEDDER 32 N. DUKE ST. YORK, PA 6 Business Entity ~~ S ~~~ ~ ; tsirl Page 1 of 1 Corporations Online Services I Corporations I Forms ~ Contact Corporations I Business Services Search By Business Name By Business Entity ID Verify Verify Certification Online Orders Register for Online Orders Order Good Standing Order Certified Documents Order Business List My Images Search for Images Business Entity Filing History Date: 2/25/2010 (Select the link above to view the Business Entity's Filing History) Business Name History Name Name Type FOX POOLS Current Name Fictitious Names -Domestic -Information Entity Number: 2210181 Status: Active Entity Creation Date: 8/11/1959 8:05:16 PM State of Business.: PA Principal Place of Business: UNKNOWN YORK PA 0 -0 Mailing Address: No Address Owner Information Owner(s) for: FOX POOLS Owners Name: GEORGE C FOX Mailing Address: [Address Not Available] p rp ~~m~e Copyright ®2002 Pennsylvania Department of State. All Rights Reserved. Commonwealth of PA Privacy Statement https://www.corporations.state.pa.us/core/soskb/Corp.asp? 1150079 2/25/2010 Business Entity Kt.; i,. Page 1 of 1 Corporations Online Services I Corporations ~ Forms I Contact Corporations I Business Services Search Business Entity Filing By Business Name History By Business Entity ID Date: 2/25/2010 (Select the link above to view Verify Certification the Business Entity's Filing Online Orders History) Register for Online Orders Order Good Standing Business Name History Order Certified Documents Order Business List Name Name Type My Images Search for Images FOX POOLS OF DELAWARE VALLEY Current Name Fictitious Names -Domestic -In formation Entity Number: 2210177 Status: Active Entity Creation Date: 6/28/1972 8:04:08 PM State of Business.: PA Principal Place of Business: REVERE-UPPER BLACK EDDY RD POBOX607 REVERE PA 0 -0 Mailing Address: No Address Owner Information Owner(s) for: FOX POOLS OF DELAWARE VALLEY Owners Name: JOHN G DYER Mailing Address: [Address Not Available] ~aa, '/~ ,`~ Q l ~ii Copyright ®2002 Pennsylvania Department of State. All Rights Reserved. Commonwealth of PA Privacy Statement https://www.corporations. state.pa.us/core/soskb/Corp. asp? 1150075 2/25/2010 Business Entity ~i~~"'"~.~ "~'"''"" Page 1 of 1 Corporations Online Services ~ Corporations I Forms ~ Contact Corporations I Business Services Search By Business Name By Business Entity ID Verify Verify Certification Online Orders Register for Online Orders Order Good Standing Order Certified Documents Order Business List My Images Search for Images Business Entity Filing Date: 2/25/2010 HlStory (Select the link above to view the Business Entity's Filing History) Business Name History Name Name Type FOX POOLS OF YORK INC. Current Name Business Corporation -Domestic -Information Entity Number: 128862 Status: Withdrawn Entity Creation Date: 1/4/1965 Registered Office Address: 1895 WHITEFORD ROAD YORK PA 0 -0 York Mailing Address: No Address -;'~or1~'''I~c~~ .'' ~ 7[ Horcle?. Copyright ®2002 Pennsylvania Department of State. All Rights Reserved. Commonwealth of PA Privacy Statement https://www.corporations.state.pa.us/core/soskb/Corp.asp? 122200 2/25/2010 COMMONWEALTH OF PENNSYLVANIA ss COUNTY OF YORK Before me, a Notary Public, in and for the said County and State, personally appeared Clyde W. Vedder, Esquire, who, being duly sworn according to law, doth depose and say that Fox Pool Corporation is unable to sign this affidavit at the present time, as its counsel he has sufficient knowledge and information and is authorized to make this Affidavit on Fox Pool Corporation's behalf, Fox Pool Corporation is the source of his information as to matters not stated upon his own knowledge and the facts set forth in the foregoing document are true and correct to the best of his knowledge, information and belief. A supplemental affidavit executed by Fox Pool Corporation will be filed forthwith. Clyde W. Vedd Esquire MORRIS & VEDDER 32 N. DUKE ST. YORK, PA Sworn and subscribed to before me this 25th day of February, 2010. ovary Public COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL STEPHANIE M. WAREHIME, Notary Public City of York, York County My Commission Expires March 21, 2013 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION: LAW MORRIS &VEDDER 32 N. DUKE ST. YORK, PA SUDHAKAR BALASANKAR, No. 09-6807 Plaintiff vs. METCO, INC, vs. FOX POOLS, INC., Additional Defendant Civil Action CERTIFICATE OF SERVICE I, Stephanie M. Warehime, Secretary to Clyde W. Vedder, Esquire, of the law firm of Morris & Vedder, 32 North Duke Street, PO Box 544, City of York, York County, Commonwealth of Pennsylvania, 17405, do hereby certify that on this 25th day of February, 2010, I served a true and correct copy of the Additional Defendant's Preliminary Objections to Defendant's Amended Joinder Complaint, by placing the same in the United States mail, postage prepaid to: John H. Pietrzak, Esquire Andrew R. Benedict, Esquire .2331 Market St. 2000 Market St., 13th Fl. Camp Hill, PA 17011 Philadelphia, PA 19103 MORRIS & VEDDER BY: G ` ep anie M. Warehime, Secretary to Clyde W. Vedder, Esquire