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HomeMy WebLinkAbout09-8572ERNEST A CLAWSER, III, ) Plaintiff ) VS. ) VINCENT SCHANER, ) Defendant ) NOTICE TO DEFENDANTS NAMED HEREIN: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. JI - ?57,;? TGVYr') 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 SOUTH BEDFORD STREET CARLISLE, PA 17013 TELEPHONE: (717) 249-3166 ERNEST A CLAWSER, III, Plaintiff VS. VINCENT SCHANER, Defendant COMPLAINT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. D i AND NOW comes the above-named Plaintiff, by his attorney, Samuel L. Andes, and makes the following Complaint in this matter: 1. The Plaintiff is Ernest A. Clawser, III an adult individual who resides at 1341 Old Willow Mill Road in Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. The Defendant is Vincent Schaner an adult individual who resides at owns property at 95 Park Drive in Dover, York County, Pennsylvania 17315. 3. At all times relevant to this action, Plaintiff was engaged in the business of home construction and remodeling. 4. At all times relevant to this action, Defendant was the owner of the property at 95 Park Drive in Dover, York: County, Pennsylvania. 5. In April of 2009, at the request and insistent of Defendant, Plaintiff prepared a proposal to do substantial construction and remodeling work at Defendant's home at 95 Park Drive. A copy of that proposal is attached hereto and marked as EXHIBIT A. 6. After reviewing and discussing Plaintiff's proposal, Plaintiff and Defendant entered into an oral agreement whereby Plaintiff was to do the work on the first two and a half pages of his proposal for a total contract price of $63,612.40. The parties specifically agreed that work to covert the old kitchen to an office, to re-roof and reside the existing house, and to install a deck with roof was not to be done by Plaintiff and not to be included in the contract between the parties. 7. The parties specifically agreed to the terms for payment attached to Plaintiff s proposal. 8. The parties agreed that payments would be made by Defendant to Plaintiff at Plaintiff's place of business at 1341 Old Willow Mill Road in Mechanicsburg, Cumberland County, Pennsylvania. 9. Thereafter, Plaintiff proceeded to purchase and deliver the materials and to otherwise do the work required by the terms of the agreement between the parties. 10. Before Plaintiff commenced construction of the project, Defendant engaged another contractor to do the excavation work for the basement of the addition to the house. Because Defendant's excavator dug the foundation too deep, the work on the project had to be changed to accommodate additional work in the basement to bring the basement walls up to the proper height for the rest of the project. When Defendant became aware of that, he authorized Plaintiff to do that additional work and to install windows in the basement wall and other work to accommodate changes which Defendant requested in the project. 11. Plaintiff prepared proposals to do the extra work requested by Defendant and necessitated by the change in the elevation of the basement floor. After Plaintiff presented those proposals to Defendant, Defendant agreed to pay Plaintiff for that additional work. Copies of the proposals for such additional work are attached hereto and marked as EXHIBIT B. 12. In August of 2009, without prior notice to Plaintiff, Defendant terminated the contract between the parties and ordered Plaintiff to cease work on the project and remove himself, his tools, and his workmen, from the project. By his conduct, Defendant terminated the agreement between the parties. 13. The work done by Plaintiff on the project was pursuant to the terms of the agreement between the parties and the work was done in a good and workmanlike manner. COUNT I - CONTRACT 14. The averments set forth in the foregoing paragraphs of this Complaint are incorporated herein by reference. 15. At the time that the Defendant wrongfully terminated the contract between the parties, Plaintiff had completed work on the project having a value of $51,774.04. Attached hereto, and marked as EXHIBIT C, is a list of the portions of the contract work completed by Plaintiff prior to the time that Defendant wrongfully terminated the contract. 16. In addition to payment for the work he completed on the project, Plaintiff is entitled to be compensated for his lost profit and overhead caused to him by Defendant's wrongful termination of the contract. 17. At the time the Defendant wrongfully terminated the contract, Plaintiff would have been able to complete all of the work on the contract for $17,000.00. As a result, Defendant's wrongful termination of the contract caused Defendant a loss of profit and overhead, of $9,618.00. 18. To date, Defendant has paid Plaintiff, against the balance Defendant owes Plaintiff, the sum of $36,994.24. 19. Defendant, by his conduct, has injured Plaintiff in the amount of $26,618.16, representing $9,618.16 in lost profit and $14,779.98 for work completed by Plaintiff for which Defendant has not paid Plaintiff. 20. The prices charged Defendant by Plaintiff were reasonable and fair at the time and place that the charges were imposed and were, more significantly, the prices which the parties agreed Defendant would pay Plaintiff. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $26,618.16, plus interest from 1 September 2009, plus costs of suit. COUNT II - QUANTUM MERUIT 21. As an alternate to Count I, based upon the contract between the parties, Plaintiff asserts this claim in quantum meruit and, in support therefore, incorporates herein, by reference, the averments set out in Paragraphs 1 through 13. 22. At the request and insistence of Defendant, Plaintiff did the work on Defendant's home described in EXHIBIT C, which is attached hereto and made a part hereof. All of that work benefitted Defendant by improving Defendant's home as requested by Defendant. 23. To make the improvements and do the work described in EXHIBIT C, Plaintiff supplied the materials listed in EXHIBIT D, for which Plaintiff is entitled to an additional payment of 10% of the cost of those materials to cover Plaintiff's overhead expenses in providing them. Plaintiff also provided the skilled labor listed in EXHIBIT E, both of which are attached hereto and incorporated herein by reference. 24. The rate Plaintiff is entitled to receive for the skilled labor provided by Plaintiff to Defendant is $42.50 per hour. 25. The rates charged by Plaintiff for the materials delivered to Defendant's home and incorporated into the construction project and the rates charged for the labor Plaintiff provided to Defendant are fair, reasonable, and in accordance with market rates for such materials and labor at the time and in the geographical area where they were provided. 26. Defendant has benefitted from the materials and labor provided to him by Plaintiff in that Defendant has received substantial and material improvement to his home, in accordance with his request and instructions. 27. During the course of Plaintiff s work on Defendant's home, Defendant paid Plaintiff $36,994.24. 28. The reasonable and fair value of the materials and labor supplied by Plaintiff to Defendant is $59,801.10. 29. Defendant owes Plaintiff the sum of $22,806.86, for the labor and materials supplied by Plaintiff for which Defendant has not yet paid. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $22,806.86, plus interest from 1 September 2009, plus costs of suit. 1 L. An es, Esquire Attorney for Plaintiff Supreme Court ID # 17225 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). /zoo 71,2 Date: ERNEST A. CLAWSER, III EXHIBIT A . i0-7 1 010<4 ONE lOnomir r q67 #/d7? °"fZ9f? /2, 7=y 3 2 4f5- CLAWSER CONSTRUCTION # 1ogto o 6 f ld,) !s, 0144 t ERNEST A. CLAWSER III 1341 OLD WILLOW MILL ROAD a 2 MECHANICSBURG, PA 17050 717-795-0555 BILL Job # 0907 TO: Vincent Schaner 95 Park Drive Dover Pa. 17315 20'-0"X 20'-0" Two story addition DATE DESCRIF'nuiv #1 Complete drawling and prints needed to apply for building permits and finish the job. #1 of 4 #2 Lay out building to start the excavation of the addition. #3 Over see excavation and construction of the complete job. #4 Form and pore the retaining wall and footers. #5 Lay rebar ,Anker bolt and core fill block to specks on print #6 Install one steel post for wooden beam to support the first floor joist. 47 Pore four inches concrete basement floor. #8 Build a triple 2"x 12" beam and install it in place. - 49 Layout and install 2"x 8" floor joist for first floor #10 Install two rows of bridging between the joists of the first floor....: . #'I I Install %" T&G OSB plywood for sub floor on the first DATE OF 04/21/2009 ALITOTAL floor. #12 Frame the first floor walls out with 2"x 6" studs and plates. #13 Sheath the wall out with 7/16" OSB and cover it with house rap. #14 Layout true rough cut 2"x 1215x 20'-0" floor joist, 16" O.C. for the second floor then install them. _ #15 installtwo setsof solidbridging between the_second floor joist #16 Build basement and second floor stair cases built out of the rough cut two by twelve's. #17 Install l 5/8"x 5 '/2 " T&G flooring over the second floor joist, witch will be finish ceiling for the first floor and finish floor for the second floor. #18 Install new 200 amp under ground meter box,200 amp breaker box Two ground rods, and three inch conduit (,From new meter box over to existing pole). x#19 Run 100amp sub panel wire from new 200 amp breaker box to existing 100amp breaker box.( install a isolated ground in the existing box.) 020 Contact electric inspector and Med ed to have the new ; #2 of 4 serves hocked up and existing serves disconnected. #21 Build and install 2"x 6" walls, cover with 7/16"osb and house rap on the second floor. #22 Install rough cut 2"x 12"x 20'-0" ridge board for rafters over the second floor of the addition. #23 Layout cut and install 2"x 12" rafters for the new roof (Existing roof will be blended into the new roof). #24 Build 2"x 6" rakes on front and back of the addition. #25 Install 2"x 6" face boards on each side of the addition. #26 Cover Rafters with 7/16" osb then cove the osb with weather guard. 427 Install exterior windows and doors on the addition. 428 Install standing seam metal roofing on roof of addition with two valleys and short blend in roof. 429 Build four bird boxes, then cover the rest of the exterior of addition with fiber board siding with pvc corners, vinyl soft and aluminum fascia #30 Complete the rough ins for the electric, plumbing, and duct work need to start finishing the walls and second floor ceiling. #31 Have inspections of rough ins. #32 Insulation A) basement ceiling R19 6" fiberglass B) first and second floor exterior wall will be R19 6" fiberglass C) The exterior band board will have R19 6" fiberglass D) All exterior stud cavities with duct work will have RI l 4" fiberglass to the outside of the building E) The second floor cathedral ceiling we will install Foam baffles from walls to ridge board then insulate with R30 12" fiberglass #33 Blocking will be installed for kitchen cabinet and all of the interior vertical T&G sheathing first and second floors #34 All interior wall will first be coved with 151d felt paper and then with vertical 1 "x 6" beaded T&G sheathing. #35 Cut pass ways from existing building to the addition. #36 Build and install custom built rough cut lumber doors for bedroom and bathroom on the second floor.( first floor will only be a archway between new and existing buildings) #37 Base, archway, windows and door on the inside will be trimmed out with rough cut one by material. #3 8 Kitchen cabinets will built in place on site as shown on plan. (Counter top, sink and back splash have yet to be determined.) #39 Build and install hand railing maid out of branches and limbs. #40 Install '/z" cement board over the first floor of the addition. w #1 Engineering and prints needed for permit and completion $50 #3 of 4 of the addition (plot plan, three sides, electric, plumbing, smoke detectors, foundation and speciation drawings) material and labor #2 Excavation $4200.00` #3 Concrete (retaining wall, footers, floor and outside steps) 4 5 0 #4 Masonry block $5400.00 #5 Framing labor $4800.00 A) Sub panel, outlets, switches, GFIs, smoke detectors, $2000.00 lights, ceiling fan, dish washer and stove B) 200 amp under ground meter box and 200 amp breaker $800.00 box with pull light and GFI outlet C) Under ground meded $800.00 #7 Roof steel and labor $2358.00 #8 siding and labor $5200.00 #9 trim (includes make three doors, walls, baseboard, $5200.00 archway, windows and exterior doors) #10 Cabinets built and installed $4200.00 #11 countertop and full back splash laminate top $1715.00 #12 grout and install wonder board $880.00 #13 material A) 15/8 x 512 T&G flooring $2556.40 B) 1x6 beaded T&G wall sheathing $3600.00 C) 2"x12"x20' -0" rough cut hardwood $1530.00 D) Rest of the materials $7835.64 #14 Polly urethane $4800.00 #15 trout spray water proofing $280.00 ORIGINAL $63612.40 #0907 ( A) Old kitchen to Office Extra $3922.98 #0907 ( B) Reroof and Reside Existing House Material $5500.48 #0907 C 14'-0"x 16'-0" deck with roof $3711.12 #0907 (A) Old kitchen to Office $3840.00 #0907 ( B) Reroof and Reside Existing House Extra Labor $3500.00 #0907 ( C) 14'-0"x 16'-0" deck with roof $3500.00 LABOR Hours Rate, Sub Total: $87586.98 Amounts Paid TOTAL DUE: CONTRACT TERMS: # 1 10% Of the total j ob at the start of work: #2 10% Of the total job when; Permits / Staking / Lot Prep / Foundation, Well / Water Tap in drain tile, Water Proofing Slab or Basement: #3 25% Of the total job when; Framing, Joist, Subfloors, Exterior sheathing, Roofing, Windows and Exterior Doors. #4 25% Of the total job when; Exterior Siding / Brick, Rough Electric, Plumbing, Heating System Installed, Drywall and Insulation: #5 20% Of the total job when; Walks / Stoops, Drive ways, Fire Places,Finish Floors / Tile, Interior Doors, Trim / Hard ware, Kitchen Cabinet & Tops: #6 10% Of the total job when; Outside Painting / Staining, Interior Decoration, Finish Electric, Heating, plumbing / Septitic, Air Conditioning / Heat Pump, Gutters and Down Spout, Finish Grading, Sod / Seed and land-scaping or Fully and Ready to Occupancy: -If any action at law or equity is necessary to enforce or interpret any terms of this agreement, the prevailing party shall be entitled to reasonable attorney's fees, cost and necessary expenses in addition to any relief to which such party may be entitled; -Any additional work that may need to be done will be a separate charge - $42.00 per hour per man, plus any material and equipment /operator needed to complete the job. EXHIBIT B CLAWSER CONSTRUCTION ERNEST A. CLAWSER III 1341 OLD WILLOW MILL ROAD MECHANICSBURG, PA 17050 717-795-0555 Changes made to the footers, foundation wall and retaining wall, to over come the changes made in excavation and personal changes of Vincent Schaner, home owner. Extra material: #1 Form-A-Drain 16 if $1.051f $16.80 #2 Rebar 6 pcs $12.85 pcs $77.10 #3 7/16 osb 2 pcs $5.81 pcs $11.62 #4 215x4"x8'-0" 7 pcs $1.52 pcs $10.64 #5 block 120 pcs $1.21 pcs $145.20 #6 Concrete 1 1/2 yards $110.00 yd $165.00 Total $426.36 Tax $25.58 $451.94 Extra Labor: #1 Redesign foundation footer to acuminate the change in depth and grading of ground. 4 hours $168.00 #2 Tie extra rebar for retaining wall change in height 1 1/2 hours $63.00 #3 Add 16"x24'-0" of extra forming and bracing to the retaining wall forms 3 hours $126.00 #4 Poor and finish 16"x24'-0" of extra concrete retaining wall 3 1/2 hours $147.00 #5 Lay 120 more-block $199 per-block- -$358.88 #6 Core fill 24 single block cores 16" deeper and extend the rebar 6 hours $252.00 Total $1114.88 Material $451.92 Labor $1114.88 $1566.82 CLAWSER CONSTRUCTION ERNEST A. CLAWSER III 1341 OLD WILLOW MILL ROAD MECHANICSBURG, PA 17050 717-795-0555 Difference between precast with Belco and change to basement steps Material #1 Block Block 138 block $1.21 PCs $166.98 #2 Rebar 2 PCs $12.85 PCs $25.70 #3 Concrete 6 '/z yards $110.00 yard $715.00 #4 Tap cons 1 box $15.95 box $15.95 #5 3 screws 1 box $15.87 box $15.87 #6 24"x8'-0" vinyl coated aluminum 1 PCs $16.00 $16.00 #7 36"x82" exterior steel door with window 1 PCs $175.00 PCs $175.00 #8 2"x12"x10'-0" 2 PCs $15.02 $30.04 #9 2"10"x10'-0" 5 PCs $7.99 $39.95 #10 2"x4"x8'-0" 2 PCs $1.52 $3.04 #114" pvc storm drainpipe 1 PCs $6.00 $6.00 #12 4" pvc storm drain T 1 PCs $6.00 $6.00 #13 4" pvc drain 1 PCs $5.25 $5.25 Total: $1220.78 Tax: $73.25 'Dotal: sizY4.u3 Labor 1 hour Install drain 8 hour Form steps and wall caps 8 hour Pour and finish concrete 6 hour Parge walls and steps 4 hour To install door, trim it, and wrap it with aluminum Lay 138 block at $2.99 a block $412.62 Total hour: 27 hours at $42.00 Labor total: $1546.62 Material total: $1294.03 Total: $2840:65 Door and precast step monarch total: $1725.00 Extra: $1115.65 CLAWSER CONSTRUCTION ERNEST A. CLAWSER III 1341 OLD WILLOW MILL ROAD MECHANICSBURG, PA 17050 717-795-0555 Changes made installing DH window in basement wall Material 1 pcs 4"x8"06" Lintel $8.40 1 pcs 6"x8"x36" Lintel $12.20 1 pcs 8500 BH window 32"x36" $184.88 4 pcs 2 3/4" Tapcons $.40 per pcs $1.60 1 pcs Tub caulking $5.95 Shims $3.00 Material Total: $216.03 Tax: $12.96 Total: $228.99 Labor #1 Set Lintels 1/2 hour #2 a) Pace window in to block opening b) Shim the window c) Tapcon it fastened into opening d) Insulate around window e) Caulk the outside of the window 3 hours Total hours: 3 1/2 hr $42.00 an hour Labor: $147.00 Material: $228.99 Labor: $147.00 Total: $375.99 CLAWSER CONSTRUCTION ERNEST A. CLAWSER III 1341 OLD WILLOW MILL ROAD MECHANICSBURG, PA 17050 717-795-0555 Changes completed to framing on the first floor. # 1 The redesign of the beam and the way the j oist run in to it. 3 hours #2 Build a triple 2"x12"16'-0" with two rows of 7/16"xl 1 1/4"x16'-0" osb and a 2x4x16'-0" apron on each side of the beam. 2 hours #3 Change to the wall height to limit the number of steps down to the second floor of the existing building. 4 hours #4 Redesign headers for the first floor framing A) drawing B) math C) engineering seal ($190.00) 16 hours #5 Design in a bigger entrance into the existing building, frame and install an extra DH exterior window, and frame for an interior window to the existing laundry room. 12 hours #6 Run conduit for phone line. 2 hours #7 Change layout of kitchen on the floor of the addition. 2 hours Total hours: 41 Total: $1722.00 +190.00 Total: 1912.00 Materials: #13 pcs 233 x12"xl6'-0" #2 1 pcs custom build 3: have been needed #3 10 pcs 2"x6"x83-0" #4 2 pcs 233x4'3xl6' 0'' Labor $1722.00 Extra cost $ 190.00 Materials $503.67 Total $2415.67 $13.02 pcs $39.06 6 post 16" higher then should be and stronger then should $397.12 post $397.12 $3.35 pcs $33.50 $5.08 pcs $10.16 Total $503.67 EXHIBIT C CLAWSER CONSTRUCTION ERNEST A. CLAWSER III 1341 OLD WILLOW MILL ROAD MECHANICSBURG, PA 17050 717-795-0555 Vincent Schaner 95 Park Drive Dover Pa, 17315 Work complete before being taken off the job 08/05/2009 #1 Prints, drawing and contract approved by Vincent Schaner #2 Print, drawings and contract approved by Newberry township and permits where given #3 Order for deliver of framing material plus and have it delivered to job site #4 Lay out the addition on ground for excavation of the foundation 45 Excavation of the foundation complete #6 Layout and form footer for foundation #7 Layout and form retaining wall against existing dry stack stone foundation to keep it from kicking out #8 Bend and tie rebar in place for retaining wall #9 Install plumbing for drain to stair entry into basement #10 Pour and finish retaining wall #11 Had footer inspected by Newberry township # 12 Layout for block wall on footer and on top of the retaining wall #13 Drill into the footer for rebar and install rebar in block #14 Have block foundation wall laid and parged #15 Core fill block as needed and install ancer bolts for sill plates # 16 Install sill plates on foundation #17 Had foundation walls inspected by Newberry township inspector #18 Form stair case and wall caps for concrete #19 Install steel post for beam #20 Install expansion around the foundation wall and form across the door opening for concrete basement floor #21 Pour and finish concrete floor, stair case, and wall caps #22 Strip forms and parge out stair case, walls and wall caps #23 Help clean up splashed concrete off of block wall #24 Call Met-Ed tell home owner he needs to set it up because that is the way Met-Ed works #25 Install beam, floor joist,'/4 TG sub floor, cover stair well opening with ply wood, cover over floor and joist with plastic and brace foundation wall for back filling #26 Have back filling and grading done around foundation #27 Installed 200 amp breaker box in basement #28 Install conduit from new two hundred amp breaker box over to existing one hundred amp breaker box 929 Put hole-through existing stone foundation wall-for conduit #30 Frame wall for first floor including extra windows 931 Install 200 amp under ground meter base #32 Install 200 amp wire from meter base into 200 amp breaker box #33 100 amp four wire through conduit hooked into 100 amp breaker in new box run over to the existing service but not hooked in #34 Hook up a light with pull switch and a GFI outlet #35 Install two ground stakes and ground wire to new breaker box #36 Had new electric services inspected #37 Met-Ed came out to measure for new under ground serves #38 Cover first floor wall sheathing with house wrap #39 Install two extra exterior DH windows, one in the basement and the other on the first floor #40 Install two exterior DH Windows G #41 Install one extra exterior steel door in basement entrance #42 Install two upgraded fiber glass doors on the first floor #43 Wrap the exterior door trim and frames of the two upgraded door with pvc coated aluminum #44 Trim out the extra door and wrap the exterior trim and frame with vinyl coated aluminum #45 Wrap the extra window on the first floor with Weather Tight #46 Wrap the two other windows with weather tight #47 Wrap the two upgraded doors with weather tight #48 Install two 2"xl2"x20'-0" hemlock floor joist for second floor #49 Install two sets of soled bridging across the second floor joist #50 Install temporary 7/16" osb for flooring on top of second floor joist #51 Install 2x6 around the outside perimeter of the second floor joist #52 Cover the second floor temporary floor with plastic #53 Lay out kitchen on the first floor #54 Ran holes through wall studs for wires #55 Cut funs up through second floor for heat and returns #56 Make new drawings for changes in deck that Vincent wanted me to start but was not on the bid #57 Vincent Schaner set up a framing inspection with out informing me, which gave me no chance to defend my self or explain how I came up with what I did. I was not there and I didn't know about it until he called me after the inspector left. #58 I started doing the speck draw the engineering math to prove I was right. Took it to the township inspector, he looked over them and told me he would except it if I had it stamped by an engineer #59 Took the numbers and drawings to the engineer #60 I talked to the engineer, went over my drawing and told he would get the results back to me #61 Get in contact with Met-Ed and Phil Hill to set up to install under ground serves #62 Have ditch dug for underground serves #63 Install conduit up to meter box #64 Help install a 6" base of stone dust in ditch #65 Have under ground 200 amp service wire installed in ditch #66 Install conduit for phone line #67 Help cover wire in conduit with stone dust #68 Have the rest of the ditch filled in and covered over #69 Gather my tools up #70 Drop off the material from my trailer #71 Clean up take pictures #72 Hook up to remove trailers #73 Told Vincent what he has to do about the electric #74 Say good bye and leave job site with my tools and trailers #75 Call electric inspector to tell him I am no longer on the job #76 Fax the electric inspector what I had completed and that I was not responsible for any more of electric or the job #77 Called the distributer of the 1 '/2x6 T&G flooring to give Vincent Schaner a call to find out when to deliver the flooring #80 fax to township to tell them I'm no longer working for Vincent Schaner_and_am no longer responsible - - for the job #81 Got the results back from engineer (in my favor) and dropped them off at the Newberry township building CLAWSER CONSTRUCTION 1341 OLD WILLOW MILL ROAD MECHANICSBURG, PA 17050 BILL FOR: VINCENT SCHANER JOB #0907 95 PARK DRIVE DOVER, PA. 17315 TOTALS: COST OF MATERIAL BOUGHT AND DELIVER TO JOB. $ 25,257.75 COST OF EXTRA MATERIAL BOUGHT AND DELIVER TO JOB. $ 6,557.79 COST OF LABOR AT $32.00 HOUR X 461.5 HOURS. $ 14,768.00 COST OF LABOR AT $42.00 HOUR X 99.5 HOURS. $ 4,179.00 EXTRAS COST $ A• 1,011.50 l?l A A A I .,. • , . ' CHECKS RECEIVED CHECK #1079 - 4/28/09 $ 12,722.40 CHECK #1086 - 5/14/09 $ 15,903.00 CHECK #1096 - 7/2/09 $ 8,368.66 TOTAL RECEIVED $ 36,994.06 $ 51,774.04 TOTAL RECEIVED $36,994.06 TOTAL STILL OWED $14,779.98 IF ANY ACTION AT LAW OR EQUITY IS NECESSARY TO ENFORCE OR INTERPRET ANY TERMS OF THIS AGREEMENT, THE PREVAILING PARTY SHALL BE ENTETLED TO REASONABLE ATTORNEY'S FEES, COST AND NECESSARY EXPENSES IN ADDITIONN TO ANY RELIEF TO WHICH SUCH PARTY MAY BE ENTITLED. D- 7 EXHIBIT D N O CD 00 W W O (D W J W C71 A W N -? O O o D J O> O A W F fD m N r N O N W CO C? CD C.T7 CT CJt ? W W c0 00 o cD C W N O D O 0 0 --q O D D D x 0 0 0 0 0 0 0 0 0 O ( D 0 0 0 0 0 0 0 0 O m m x z ? 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CLAWSER, III 2009 MEN 1 HOURS 4/27 #1 PICK UP FORMS FOR FOOTERS. 8 #2 MEASURE FOR MATERIAL FOR RETAINING WALL. #3 PICK UP FORMS FOR RETAINING WALL.. 4/28 #1 LAYOUT FOOTER IN HOLE. 9 #2 SPRED STONE OUT. #3 GRADE THE DIRT AND STONE FOR FOOTER AND WALL. 4/29 #1 RUN DRAIN OUT. 8 #2 SET FORMS. #3 BEND AND SET REBAR FOR FORMS. 4/30 #1 FORM RETAINING WALL. 7 #2 HAD IT INSPECTED 5/1 #1 POUR FOOTERS 6 5/4 #1 LAYOUT AND PIN CORNERS FOR FOUNDATION 4 WALL. 5/8 #1 GET THINGS GOING WITH MASONS. 6 #2 HELP PREP. REBAR. 5/11 #1 STOP TO CHECK ON JOB 3 #2 ORDER MORE REBAR 5/12 #1 PICK UP AND DELIVER REBAR TO JOB 8 #2 CUT REBAR TO BE USED. 5/18 #1 REMOVE FIRST ROW OF BLOCK OFF THE TOP 8 OF THE RETAINING WALL. #2 LAYOUT FOR STEPS,. #3 MEASURE MATERIAL FOR STEPS. 5/19 #1 PICK UP MATERIAL FOR STEPS 8 #2 REMOVE BLOCK NEEDED TO FORM AND POUR STEPS. #3 START TOCUT OUT STEPS 5/20 #1 CUT OUT STEPS. 8 #2 BUILD THE FORMS FOR THE STEPS. #3 START INSTALLING FORMS. 5/21 #1 FINISH INSTALLING FORMS FOR STEPS. 8 #2 FORM CAPS FOR ON TOP OF THE TWO RETAINING WALL. 5/22 #1 CONCRETE PREP. TO POUR. 10 #2 POUR CONCRETE AND FINISH. 6/8 #1 INSTALL STEEL PLATES ON BLOCK. 8 #2 LAYOUT STEEL PLATES FOR FLOOR JOIST. #3 CUT POCKET IN BLOCK FOR 2 X 12 BEAM (TRIPLE). 6/9 #1 START INSTALLING PART OF THE BEAM AND THE 8 FIRST FLOOR JOIST. 6/10 #1 FINISH INSTALLING FIRST FLOOR JOIST. #2 START DECKING. 6/11 #1 FINISH INSTALLING 3/4 X 4'- 0" X 8'-0" TG DECKING 8 ON FIRST FLOOR. #2 INSTALLED NAILORS TO COVER OVER STAIRWAY WITH 3/4 PLYWOOD (INSTALLED PLASTIC OVER DECK). 6/12 #1 KNOCK HOLE THROUGH STONE FOUNDATION TO 3 ADDITION FOR RUNNING ELECTRIC. #2 CLEAN UP STONE. 6/19 #1 PICK UP AND DELIVER 38 PCS 2" X 12" X 20'- 0" 6 JOIST TO JOB SITE AND UNHOOK THEM. #2 SET UP TO UNLOAD THEM. 6/22 #1 TRIED TO UNLOAD 2" X 12" X 20'- 0" BUT COULD 7 NOT. #2 SEPARATED LUMBER FOR FRAMING OUT THE FIRST FLOOR. #3 COVERED LUMBER. TOTAL TO DATE 149 Page 1 Mr. Vincent schaner 95 Park Drive Dover, Pa 17315 Job #0907 DATE ERNEST A. CLAWSER,I11 HOURS 2009 MEN 1 149 6/22 BALANCE FROM PAGE 1 6/23 #1 LAYOUT BOTTOM AND TOP PLATES. 8 #2 CUT STUDS AND JACK STUDS OUT FOR WINDOWS. #3 BUILD THEM TOGETHER. 6124 #1 BUILD AND SET UP FIRST FLOOR WALLS. 8 #2 START SHEATHING WALLS. #3 (FRAME ONE EXTRA WINDOW) 1 6125 #1 FINISH SHEATHING ON FIRST FLOOR WALLS. 7 #2 CUT DOORS AND WINDOW OUT OF THE SHEATHING. #3 CRAIN 2" X 12" x 20'- 0" JOISTS UP ON THE WALLS. 6/26 #1 START CUTTING AND SETTING 2"X 12" X 20'- 0" 6 SECOND FLOOR JOISTS. 6/29 #1 FRAME OUT FOR STAIRWAY OF SECOND FLOOR. 8 #2 FINISH SETTING 2" x 12" x 20' - 0" FLOOR JOIST ON SECOND FLOOR. 6/30 #1 INSTALL 7/16 OSB AROUND THE TOP OF THE 4 WALL FRAMING. #2 INSTALL 2 X 6 BAND AROUND THE TOP OF THE SECOND FLOOR JOISTS. 7/1 #1 CUT BRIDGE TO SIZE 2 X 12 FOR SECOND 6 FLOOR. #2 INSTALLED BRIDGING FOR SECOND FLOOR. #3 CLEAN UP. 7/2 #1 COVER WALL SHEATHING WITH HOUSE WRAP. 8 #2 RUN CONDUITS FROM NEW BOX TO OLD ONE. #3 PICK UP ELECTRICAL SUPPLIES. 713 #1 INSTALL BASEMENT DOOR. 8 #2 INSTALL BASEMENT WINDOW. #3 HELP PULL WIRE. 7/6 #1 INSTALL WINDOWS ON THE FIRST FLOOR. 7 #2 INSTALL TEMP. DECK FOR SECOND FLOOR. #3 COVER SECOND FLOOR DECK WITH PLASTIC 7/7 #1 INSTALL EXTERIOR DOORS ON THE FIRST FLOOR. 8 #2 SHIM AND SWING DOORS. #3 INSULATE AROUND THEM. 7/8 #1 DELIVER BRAKER. 8 #2 WRAP THE EXTERIOR OF THE DOORS WITH VINYL COATED ALUMINUM. #3 MADE TRIM FOR AROUND BASEMENT DOOR. 7/9 #1 COVER AROUND WINDOWS AND DOORS ON THE 8 FIRST FLOOR WITH WEATHER WRAP. #2 INSULATE AND TRIM BASEMENT DOOR. #3 WRAP DOOR WITH VINYL COATED ALUMINUM. 7/10 #1 CLEAN UP FIRST FLOOR OF ADDITION. 7 #2 GO OVER KITCHEN. #3 LAYOUT KITCHEN. #4 TALK ABOUT STARTING DECK. 7/13 #1 DO DRAWING FOR DECK. 8 #2 COPY AND MAKE UP A MATERIAL LIST. 7/14 #1 GO TO FAGERS AND SEE WHAT DUCTING IS 6 NEEDED FOR THE SECOND FLOOR AND ORDER IT. #2 DROP OFF PRINT OF DECK. #3 GO OVER HEATING WITH OWNER. 7115 #1 LAYOUT FOR DUCTING GOING TO SECOND 8 FLOOR. #2 REMOVE NAILING BLOCK AS NEEDED. #3 START CUTTING HOLES THROUGH FOR DUCTS. 7/16 #1 FINISH CUTTING THE DUCTS OUT UP THROUGH 8 THE 2 X 6 ACROSS THE SECOND FLOOR JOIST. TOTAL TO DATE. 281 Page 2 Mr. Vincent schaner 95 Park Drive Dover, Pa 17315 Job #0907 DATE ERNEST A. CLAWSER,111 HOURS 2009 MEN 1 7/16 BALANCE FROM PAGE 2 281 8 7/21 #1 BRACED UP FLOOR JOIST. #2 REMOVE STUD AND A PIECE OF THE TOP PLATES TO RUN RETURN DUCT. #3 TEMP BRACE JOIST UP WITH 2 X 4. 8 7/22 #1 MADE A HOLE THROUGH STONE FOUNDATION FOR DUCTS WORK. #2 CUT HOLE THROUGH THE BLOCK WALL FOR THE DUCTS WORK. #3 BRACE STEEL PLATE UP. #4 INSTALL BRIDGING WERE RETURN GOES THROUGH JOIST. 8 7/23 #1 GET PRICING ON DECK. #2 WORK ON COST FOR CUSTOMER. #3 1 GOT A PHONE CALL FROM CUSTOMER, HE HAD UNCLE CALL TOWNSHIP ON ME. #4 STARTED NEW DRAWINGS FOR FRAMING 7/24 #1 DRAWING OF FRAMING FOR TOWNSHIP 8 7/27 #1 DOING MATHEMATICS AND DRAWINGS OF 10 HEADERS. 7128 #1 TRAVEL TO TOWNSHIP BUILDING(EXTRA). 5 #2 VISIT JOB SITE. 1 5 7/29 #1 DROVE TO TOWNSHIP. . 2 7/30 #1 FINISH UP MORE PRINTS. 1 5 7/31 #1 DROP PRINTS OFF FOR ENGINEER. 8/3 #1 WAS ON JOB WHEN DITCH WAS DUG FOR 6 ELECTRIC LINE AND CONDUIT. 4 814 #1 WAITING FOR MET-ED TO DROP IN CONDUIT. 8/5 #1 PICK UP TOOLS AND TRAILERS FROM JOB SITE. 2 8/6 #1 OFFICE WORK BILLING. 8 8/7 #2 OFFICE WORK BILLING. 8 8/24 #1 WHEN OVER PAPERS FOR BILL AND MADE CORRECTIONS. 369 TOTAL TO DATE Page 3 FILE 2004 DEC I tj tjs'? 9: 48 ?a&lw I#kj I*lh-f ZLy 7-vya ~~ ~ ~ ~i1 ERNEST A. CLAWSER, III, Plaintiff vs. VINCENT SCHANER, Defendant 250 ,.~+~~~ i 7 ~"~i l_: 1+~: ^. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW N 0. 09-8572 PLAINTIFF'S REPLY TO DEFENDANT'S AMENDED ANSWER WITH NEW MATTER AND COUNTERCLAIM AND NOW comes the above-named Plaintiff, by his attorney, Samuel L. Andes, and makes the following Reply to the Defendant's Amended Answer with New Matter and Counterclaim: AMENDED NEW MATTER 30. No answer required. Plaintiff incorporates herein by reference the averments set forth in his original complaint. 31. Denied. Plaintiff rendered good and valuable consideration to Defendant and Plaintiff is entitled to be paid for his services. 32. Denied. Plaintiff stopped work on the project only after Defendant had breached the agreement between the parties and Plaintiff was entitled to suspend his work. 33. Denied. PlaintifYs claims are not barred by such statute. 34. Denied. The parties operated under a valid agreement and Defendant made no objection to the agreement until after he had breached it. WHEREFORE, Plaintiff prays this court to enter judgment in his favor in accordance with his original Complaint. AMENDED COUNTERCLAIM 35. No answer required. Plaintiff incorporates herein, by reference, the averments in his original Complaint and in the foregoing paragraphs of this Reply. 36. Denied. Plaintiff well and truly performed his obligations under the agreement between the parties until Defendant breached the contract and thereby terminated it. 37. The Defendant suspended work on the project when he called for an inspection of Plaintiff's work by the township. The unannounced inspection occurred on 23 July 2009 and work was halted on the project until a certified engineer would approve structural drawings. All exposed materials were appropriately covered and protected against the elements. 38. Denied. Materials left on the job site were elevated above the ground and appropriately covered and protected from the elements. 39. Denied. Plaintiff denies that there was any cracking or deterioration of concrete which Plaintiff placed on the job. 40. Denied. The concrete Plaintiff installed did not "pop" or detach from the concrete block walls. Any such problem was caused by Defendant's failure to properly complete or protect the project after Plaintiff's departure from the project. 41. Denied. The concrete floor had not cracked by the time Plaintiff left the project because of Defendant's breach of the agreement between the parties. 42. Denied. Any problem with the concrete was caused by Defendant's failure to protect the concrete work. Plaintiff's installation of the concrete was correct. 43. Denied. Plaintiff used appropriate materials for the framing of the project, including 2x8x10 joists for the first floor, with a 2x4 apron, and 2x12x20 hemlock joists for the second floor support. 44. Denied. Plaintiff s roof was structurally sound to support a snow load. It consisted of 2x12 rafters. Moreover, Plaintiff's design of the roof was approved by the township building inspector prior to commencement of work on the project. 45. Denied. Plaintiff is without knowledge as to what any inspector allegedly told Defendant because that information is within the control of Defendant exclusively and so Plaintiff denies those averments and demands proof thereof at trial. Plaintiff states, however, that work on the project was halted by the township inspector in late July to give Plaintiff the opportunity to obtain certification from a structural engineer as to the soundness of Plaintiff s design and work. Plaintiff subsequently obtained that certification which demonstrated that Plaintiff's design and work were fully satisfactory. 46. Plaintiff admits that the building inspector requested certification from a structural engineer. 47. Denied. Defendant terminated Plaintiff's contract prior to receiving a report from the structural engineer. Plaintiff denies that his work was defective and states that it was all in accordance with the report and certification of the structural engineer which Plaintiff provided to the township inspector. 48. Denied. Plaintiff was instructed not to do any further work on the project until the report from the structural engineer, and he complied with those instructions. Defendant terminated the contract by his breach of it prior to Plaintiff obtaining the report of the structural engineer and Defendant, by that action, had prevented Plaintiff from returning to complete the project. Plaintiff denies that any of the work he did was defective or was not done in compliance with the report of the structural engineer. 49. Denied as stated. Plaintiff was instructed not to do any further work until the report of the structural engineer. Defendant terminated the agreement, by his breach of it, prior to Plaintiff obtaining the engineer's report. Plaintiff was prepared to do any corrective work that may have been necessary but the report of the structural engineer indicated that corrective work was not necessary because Plaintiff s work was satisfactory. 50. Denied. Defendant never made a good faith effort to "discuss" matters with Plaintiff. Plaintiff never threatened Defendant in any way. 51. Denied. Plaintiff was instructed to obtain an engineer's report and certification and he did. Plaintiff covered the structure and materials before suspending his work in accordance with the instructions of Defendant. When Plaintiff received the engineer's report, he had already been terminated from the project by Defendant and could not return and complete his work. 52. Denied. Plaintiff did not complete his performance of the contract because Defendant breached the contract and, by his conduct, terminated it. Any additional charges incurred by Defendant were a result of Defendant's own conduct and not the result of any conduct by Plaintiff. 53. Denied. Plaintiff properly performed his obligations under the contract until the contract was terminated by Defendant's conduct. The engineer's report confirmed that Plaintiff's calculations, plans, and work were satisfactory. 54. Denied. Plaintiff has no knowledge of what efforts Defendant made to complete the project or what costs he incurred to do so, because that information is all within the exclusive control of Defendant. Plaintiff denies, however, that Plaintiff failed to perform his work in a workmanlike and satisfactory manner. 55. Denied for the reason set forth in the answer to Paragraph 53 above, the averments of which are incorporated herein by reference. 56. Denied. Plaintiff performed his work in a good, workmanlike, and satisfactory manner which more than satisfied the standards of the construction industry in the time and place Plaintiff did the work. Plaintiff did not breach the contract. 57. Denied. The parties had an effective agreement in place and Plaintiff did not violate the said statute. 58. Denied. Plaintiff did not violate the said Act. The provisions of the Act which Defendant cites were not in effect at the time the contract between the parties. 59. Denied. Plaintiff did not violate the Home Improvement Consumer Protection Act and, therefore, Defendant is not entitled to any damages for such alleged breach. WHEREFORE, Plaintiff demands judgment against the Defendant in accordance with Plaintiff's original Complaint. Samuel L. Andes Attorney for Plaintiff Supreme Court ID # 17225 P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). Date: ~ - ~ ST A. C AWSER, III CERTIFICATE OF SERVICE I hereby certify that on ~ b ~ ~ Ne 2010, I served a copy of the foregoing document upon counsel for Defendant by U.S. Mail, postage prepaid, addressed as follows: David Lanza, Esquire 2132 Market Street Camp Hill, PA 17011 Samue L. Andes Attorney for Plaintiff Supreme Court ID 17225 P.O. Box 168 Lemoyne, PA 17043 (717)761-5361 H! ED-f FI:IlC ? ; ??' THE = -nT Hf-l''a°O AiR t? 2111 0i CCT 13 AMID: F'], CUMBERLAND COUNTY ? ENINSY?'ajANI'. P ERNEST A. CLAWSER, III, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. VINCENT SCHANER, Defendant MOTION TO COMPEL CIVIL ACTION - LAW NO. 09-8572 CIVIL TERM AND NOW comes the above-named Plaintiff, by his attorney, Samuel L. Andes, and moves the Court to compel the Defendant to answer Plaintiff's discovery, based upon the following: 1. The moving party herein is the Plaintiff and the respondent is the Defendant. 2. On 7 July 2010, Plaintiff's counsel served upon Defendant's counsel a request for production of documents and things. A copy of that Request is attached hereto and marked as Exhibit A. 3. To date, Defendant or his counsel have not filed any objection to Plaintiff's Request, have not filed any answer to Plaintiff's Request, and have not provided the documents identified in that Request. 4. Plaintiff cannot evaluate and prepare the case without the information identified in his Request. His ability to advance the case to some conclusion is prejudiced by the Defendant's failure to provide the documents and other information which he has requested. 5. Plaintiff's counsel has attempted to determine from Defendant's counsel why the documents have not been produced, but Defendant's counsel has not responded. 6. No Judges in Cumberland County have previously been involved in this matter. 7. Plaintiff's counsel believes that Defendant does not concur in the relief requested in this motion. WHEREFORE, Plaintiff moves this Court to enter an order directing and compelling the Defendant to provide the items requested in Plaintiff's Request for Production of Documents and Things, with an answer verified by Defendant. S'arntrd L. Andes Attorney for Plaintiff Supreme Court ID 17225 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 CERTIFICATE OF SERVICE I hereby certify that I served a c of the foregoing document upon the Defendant's counsel herein by regular mail, postage prepaid, addressed as follows: David J. Lanza, Esquire 2132 Market Street Camp Hill, Pa 17011 Date: I L. Andes DF TtFEL~ OTNpNOTAR`r OCT 14 20010 OCi' 20 A~ g: ~,~ CUMBERLA>~dD COUr`~TY PE~fdSYLY/~tr?!A ERNEST AICLAWSER, III, Plaintiff vl~. ', VINCENT ~CHANER, Defendant I I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 09-8572 CIVIL TERM ORDER 11~ AN~ NOW this ~0 day of ~ c.'~' ~~p G t' , 2010, upon consideration of the attached N~~tion to Compel, a Rule is hereby issued upon the Defendant, to show cause, if any he has, why the m~tion should not be granted. The Rule shall be served upon Defendant's counsel of record ~~ by regular rj~ail and shall be returnable ~ 0 days from date of service. ~,'~ '~ BY THE COURT, ~I DISTRIB ~. 3a el L. Andes, Attorney for Plaintiff, P.O. Box 168, Lemoyne, PA 17043 av~ J. Lanza, Attorney for Defendant, 2132 Market Street, Camp Hill, PA 17011 n i ~-O ~ £s rn~.~ L~c~ i vl~vl<v OCT-19-2010(TUE} 11:38 Samuel Andes, Esq. *-T1P0 ADDRR'~pk: r. v. hvx Sne LL•7SOYNJZr7L Sf[~1•y1/411- 6•DLAII.; Lawlnacsal~.uN.c..m (FR?()~1Z X61 1435 SAMT3EL L. AN~LS ATTQENLY•Y AT I.A.W 52S Np12T1i Y~VxT.1rTH gTIt3:TiT Y.. O• E07C 166 LEMOXa37S. PLrNNSYT.'YANIA A7O4a 19 October 2Ol 0 The IIor~t~rabie M.L. Ebert, Jr. Judge o~';~the Court of Common i'leas Cumbcrl~nd County Courthouse 1 Courth}~use Square Carlisle, ~'A ] 7013 P. 001 /005 rx ~,~sl+aoxa cn7? 7o:-poor swx f 7171 7[11-1436 Ernest A. Clawser,ll:[ vs. i~incent Schaper No. 09-1572 Dear Juclj~e Ebert: I inclose a courtesy copy of Exhibit A which should have been attached to the Motion ~ Compci which I filed on Friday in the above case. '1"he original has been filed with the ~~rothonotary and I apalogi~e for any confusion. Sincerely, . ~ .Andes arnh. / Enblosure OCT-19-2010(TUE) 11:38 Samuel Andes, Esq. (FAX)Z17 Z61 1435 P. 002/005 ERNES'T A. CLA111TSER., IT1, ) IN THE COURT OF COMMON Plaintiff ) PLEAS OF CUMBERLAND COUNTY,1'ENNSYLVANIA vs. ) CNCL ACTION -LAW VINCE]1~fT SCHANCR, ) NO. 09-8572 C1VIL TERM Defendant ) PRAECiPE TO THE ~'~ROT.HONOTARY: Phase attach the enclosed Exhibit A to Plaintiffs Motion to Compel in the above matter. Date: 19' L7ctober 2010 S I 'I,. An Attorney for Plaintiff Supreme Court ID # 17225 52S North 12`~ Street P.O. Box 168 Lemoyne, Pa 17043 (717) 7b1-5361 OCT-19-2010(TUE) 11;38 Samuel Rndes, Esq. ERNEST' A, C:~A'WS1/R., III, Plaintiff vs. VINCENT' SCIIANER, Defendant (FRX)71~ 761 1435 P. 003/005 IN TIIC COURT Ol~ COMMON PLEAS Or CUMBERLANA C01:JNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 09-$572 CIVIL TERM REQUES'T' :F(~R PRODUCTION OF DOCUMENTS AND TFIiNGS TO: Mr. "Vincent Scharer c/o ,David J. Lana., Esquire 213 Market Street Camp Hi11, Pa 17011 You are requested, in accordance with Pa. D C.P. 4009, to deliver to the offs :e of the undersigned at 52~ North 12~ Street, Lemoyne, Pennsylvania, or otherwise make arrangements reasonably ~ati.sfactory to the undersigned, for his inspection or examination, copies of the following a~ocuments, articles, and things, within thirty (30} days of the date of this Request. I'or purposes o1~ ibis Request, all computer records and information available an computer records or within corn~uter programs, should be included within the Request far Production. That is, this Request is plot limited to dQCUmcnts or "hard copies" of records, but should include computer records, tapes, disks, and other media as well as paper documents. 1. Copies of all reports you have received from any expert witness or potential expert witness in a case. Page 1 of 3 OCT-19-2010(TUE} 11;38 Samuel Rndes, Esq. (FRX)71~ X61 1435 P. 004/005 2. ', Copies of all estimates for repair or other work on your property that you have received a~ any time since 31 December 200$. 3. ', Copies or all contracts or agreements between you and any third party for work an your property at any time since 31 December 2008. 4. I', Copies of reports, letters, or other communications from any engineer, contractor, or other pc~son regarding alleged deficiencies in the work done on your property by Plaintiff.. 5. Copies of documents which wit I confu~u all payments made by you to Plaintiff or any other persons for work on your properly from 31.:December 2008 to the present. 6. Copies of written statements, or notes of verbal statements, from any person with regard to tie construction work done on your property by Plaintiff ar any other work done on the properly b~j auy other person after 3 T December 2008. _I 7. ; Copies of all photographs taken of your property since 31 December 200$. The photograpshould specifically include photos of any work being done on the property, the storage of y materials, and the defects you claim that gist or existed in the work on the property done by Plaintil~. 8. I, Capics of all correspondence with any person or party other than your attorney regarding ~ork or potential work on your property, by Plaintiff or any other person, from 31 December 008 to the present. Samuel L. Andes Attorney for Plaintiff Supreme Court 1D 17225 525 North 12"' Street P.O. Box 168 Lemoyne, FA 17043 (717} 761-5361 Pc7c~F? 7 of :~ OCT-19-2010(TUE) 11;38 Samuel Rndes, Esq. (FRX)Zli ?61 1435 P. 005/005 CERTIFICATE 4F SERVICE I hereby certify that I served an original of the Foregoing document upon the Defendant herein by regular mail, postage prepaid, addressed as follows: David J. Lanza, Esquire 2132 Market Street Camp Hill, Pa 17011 :bate: ~! ~ Q 1 ~ ~ . ~1' Amy M Iarktns ' cretary for Samuel ~, Andes Pr^trtip .'~ of ~ ERNESTi A. CLAWSER, III, Plaintiff ICI vs. VINCEI~IT SCHANER, Defendant TO THE P Date: 19 'ARY: Fil_~~~-n; ~it;~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW ) NO. 09-8572 CIVIL TERM PRAECIPE attach the enclosed Exhibit A to Plaintiff's Motion to Compel in the above matter. 2010 Sail L. Andb+~ Attorney for Plaintiff Supreme Court ID # 17225 525 North 12~' Street P.O. Box 168 Lemoyne, Pa 17043 (717) 761-5361 ERNEST {A. CLAWSER, III, Plaintiff SCHANER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 09-8572 CIVIL TERM REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS TO: Mr.' incent Schaner c/o 'David J. Lanza, Esquire 213 Mazket Street C Hill, Pa 17011 You~aze requested, in accordance with Pa. R.C.P. 4009, to deliver to the office of the reasonably following purposes o within co Request is records, to at 525 North 12~' Street, Lemoyne, Pennsylvania, or otherwise make arrangements to the undersigned, for his inspection or examination, copies of the currents, articles, and things, within thirty (30) days of the date of this Request. For this Request, all computer records and information available on computer records or uter programs, should be included within the Request for Production. That is, this of limited to documents or "hazd copies" of records, but should include computer I' s, disks, and other media as well as paper documents. 1. j Copies of all reports you have received from any expert witness or potential expert witness in a case. Page 1 of 3 2. ' received a 3. your prope# 4. or other peg 5. any other p Copies of all estimates for repair or other work on your property that you have any time since 31 December 2008. Copies of all contracts or agreements between you and any third party for work on at any time since 31 December 2008. Copies of reports, letters, or other communications from any engineer, contractor, n regarding alleged deficiencies in the work done on your property by Plaintiff. Copies of documents which will confirm all payments made by you to Plaintiff or ;ons for work on your property from 31 December 2008 to the present. 6. '~ Copies of written statements, or notes of verbal statements, from any person with regard to tl} construction work done on your property by Plaintiff or any other work done on the property bye any other person after 31 December 2008. I 7. Copies of all photographs taken of your property since 31 December 2008. The photograp 'should specifically include photos of any work being done on the property, the storage of y materials, and the defects you claim that exist or existed in the work on the property d ' e by Plaintiff. 8. Copies of all correspondence with any person or party other than your attorney regarding rk or potential work on your property, by Plaintiff or any other person, from 31 December 008 to the present. Samuel L. Andes Attorney for Plaintiff Supreme Court ID 17225 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 Page 2 of 3 .~ CERTIFICATE OF SERVICE I h eby certify that I served an original of the foregoing document upon the Defendant herein by gular mail, postage prepaid, addressed as follows: David J. Lanza, Esquire 213 2 Market Street Camp Hill, Pa 17011 Date: /~ O ~ 0 / / / . ~~~-~"LD ~~ Amy arkins cretary for Samuel L. Andes Page 3 of 3 ERNEST A. CLAWSER, III, : THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYINANIA w V. ?a VINCENT SCHANER, NO. 2009-8572 CIVIL -C ,sue --ri r., Defendant E- - ORDER OF COURT T, AND NOW, rhis 16TH day of AUGUST, 2011, a pretrial conference in the above captioned matter is SCHEDULED for MONDAY, SEPTEMBER 26, 2011, at 2:00 .m. in Courtroom # 3 of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memorandum shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five (5) days prior to the pretrial conference. ' SAMUEL L. ANDES, ESQUIRE V DAVID LANZA, ESQUIRE By,-the Court Edward E. Guido, J. Q Ann, Ld S1 OK6 COURT ADMINISTRATOR -in ?LL :sld Office of the Court Administrator CUMBERLAND COUNTY COURT OF COMMON PLEAS ]. Courthouse Square, Carlisle, PA 17013 Phone (717) 240-6200 Toll Free 1-888-697-0371 x6200 Fax (717) 240-6460 eMail - courtadmin@ccpa.net MEMORANDUM TO: The Honorable Edward E. Guido FROM: Jennifer E. Bray, Deputy Court Administrator DATE: Monday, August 08, 2011 IN RE: 2009-8572 Civil Action - Law Ernest A. Clawser, III v. Vincent Schaner The above case is assigned to you for a non jury trial. Please provide me with copies of your scheduling orders and final disposition date so that I can monitor the case for statistical purposes. Attachment PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: for JURY trial at the next term of civil court. --------------------------- ------- for trial without a jury. ------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) ERN EST A. Civil Action - Law O Appeal from arbitration CLAWSER, III, c-? w C-; C .P- -0 S (other) (Plaintiff) vs. The trial list will be called on $ " 1,t VINCENT SCHANER, and Trials commence on 5 (Defendant) Pretrials will be held on? vs. (Briefs are due S days before pretrials No. 09-8572 Term Indicate the attorney who will try case for the party who files this praecipe: Samuel L. Andes, Esquire Indicate trial counsel for other parties if known: David Lanza, Esquire This case is ready for trial. Date: Signed: Print Name: Samuel L. Attorney for: Plaintiff j.? David J. Lanza I.D. No. 55782 2132 Market Street Attorney for Defendant Camp Hill, Pennsylvania 17011 (717) 730-3775 ERNEST A. CLAWSER, III, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : NO. 09-8572 v. : : CIVIL ACTION - LAW VINCENT SCHANER Defendant : Zm o i~ Z ;o ,C ~ r ~p '~Z t0 d~ DEFENDANT'S PETITION FOR CONT/NUANCE PEND/N~co RESOLUTION OF SUMMARYJUDGMENT MOTION ~co = a c °r~n __4 CA 7-0 1. Trial in this matter is scheduled for November 17, 2011. 2. The parties completed discovery pursuant to this Court's Order in October 2011. 3. Following completion of discovery and partially based on said discovery, Defendant has filed and briefed a Motion for Summary Judgment related to issues raised in Defendant's Amended New Matter and Pre-Tria! Memorandum. 4. In particular, Plaintiff's claims are barred by the Home Improvement Consumer Protection Act of 2008, 73 P.S. §517 et seq. ("the Act."). 5. As set forth in Defendant's Motion for Summary Judgment, Plaintiff cannot pursue claims for payment as a result of Plaintiffs material violations of the Act. 6. Trial at this time would involve considerable expense and use of this Court's resources. 7. The parties have identified well over one dozen witnesses. 8. The testimony of these witnesses would be rendered moot by the proper application of the Act to the factual issues of this case. , 9. Proper application of the Act would leave no genuine issues of material fact for this Court to determine regarding Plaintiff's Complaint. 10. The legal issues set forth in Defendant's Motion for Summary Judgment will have to be addressed at some point, whether through objections to proposed evidence at trial and/or through pre-trial and/or post-trial motions. 11.Addressing DefendanYs Motion for Summary Judgment prior to any trial would avoid the unnecessary expense of a trial for this Court, the parties and the witnesses. 12. Judge Guido has issued prior rulings in this matter. 13. Pursuant to Rule 208, Defendant has sought Plaintiff's concurrence and forwarded a copy of this Petition to Plaintiff's counsel, and Plaintiff has not concurred in this Petition. Wherefore, Defendant requests that this Court continue the trial scheduled in this matter pending disposition of Defendant's Motion for Summary Judgment. Respectfully submitted, /ie_ll David J. Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Defendant CERTIF/CATE OF SERVICE AND NOW, th4% day of November, 2011, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Sam Andes, Esq. 525 North 12`h Street P.O. Box 168 Lemoyne, PA 17043 And to facsimile number 761-1435 By: David Lanza 288-1 , i , i, ~'~~~.D-O~F?C~. , 2D11 l~U~ 10 P~ t~ fla CUMBERLANO CaUNTY PENNSYLVANIA f ERNEST A. CLAWSER, III, ) IN THE COURT OF COMMON Plaintiff ) PLEAS OF CUMBERLAND ) COUNTY, PENNSYLVANIA ) ~ vs. ) CIVIL ACTION - LAW ) ) NO. 09-8572 CIVIL TERM VINCENT SCHANER, ) Defendant ) MOTION IN LIMINE AND NOW comes the above-named Plaintiff, by his attorney Samuel L. Andes, and moves the court to limit the testimony and evidence offered at trial by the Defendant in this matter, based upon the following: 1. The moving party herein is the Plaintiff. The responding pariy herein is the Defendant. 2. This matter has been assigned to the Honorable Edward E. Guido, Judge of this Court and is scheduled for trial before Judge Guido on 17 November 2011. 3. In Defendant's Pre-Trial Memorandum, Defendant identified a large number of witnesses, other than Defendant himself, who he intended to call to testify at trial. 4. At the pre-trial conference, this court directed Defendant's counsel to provide a summary of the testimony of the witnesses identified in Defendant's Pre-Trial Statement by 10 October 2011. That direction was subsequently set forth in the court's Pre-Trial Order, a copy of which is attached hereto and marked as EXHIBIT A. 5. Defendant has failed to provide the required information about the witnesses he intends to call at trial. 6. Plaintiff has been seriously injured by Defendant's failure to provide the required information in several ways, which include: , i A. Because of the brief time between this Motion and the scheduled trial, Plaintiff will be unable to depose or even to contact effectively the witnesses to learn the specifics of their proposed testimony. B. Plaintiff will not be able to prepare his case properly without the ; information about the witnesses and a reasonable description of their intended I ; testimony. 7. Because of Defendant's failure to comply with this court's order, Plaintiff will not be ' able t properly prepare and present his case and litigate this matter. ~ 8. This matter is assigned to the Honorable Edward E. Guido, Judge of the Court of Common Pleas. 9. Defendant does not concur in the relief requested in this motion. WHEREFORE, Plaintiff prays this court to exclude the testimony of the witnesses listed in Defendant's Pre-Trial Statement other than Defendant himself. e L. s Attorney for Plaintiff Supreme Court ID # 17225 525 North 12t' Street P.O. Box 168 Lemoyne, Pa 17043 (717) 761-5361 i I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). Date: G L L. ANDES ; i I i ; I CERTIFICATE OF SERVICE I hereby certify that I served an original of the foregoing document upon counsel s for the Defendant herein by regular mail, postage prepaid, addressed as follows: ~ David J. Lanza, Esquire 2132 Market Street Camp Hill, PA 17011 Date: Amy M arkins cretary for Samuel L. Andes 11 I I { ~ 9 i 1 ~ ~ EXHIBIT A . ~ ERNEST A. CLAWSER, III, . IN THE COURT OF COMMON PLEAS OF Plaintiff - , CUMBERLAND COUNTY, PENNSYLVANIA V. . NO. 09-8572 CIVIL TERM VINCENT SCHANER, . Defendant . CIVIL ACTION - LAW IN RE: PRETRIAL CONFERENCE A pretrial conference was held on Monday, September 26, 2011, before the Honorable Edward E. Guido, Judge. Present for the Plaintiff was Samuel L. Andes, Esquire, and present for the Defendant was David J. Lanza, Esquire. This is a claim on a contract that is expected to take no more than one day to try. There are apparently no complicated legal issues. Trial will commence at 9:15 a.m. on Thursday, November 17, 2011. Counsel are directed to check with all parties and witnesses to verify their availability. No request for continuance, absent an emergency, will be entertained after October 10, 2011. Plaintiff has been served with Requests for Admissions, which shall be answered within a 30-day time frame. Defendant shall provide the names, addresses, and to the extent available phone numbers of the witnesses listed on the pretrial memorandum. Counsel shall also provide a summary of the testimony of each witness. Said information to be provided by October 10, 2011. Settlement is not likely. By the Court,::__ } r-"" t ~ Sa del L. Andes, Esquire orney for Plaintiff David J. Lanza, Esquire Attorney for Defendant Court Administrator srs David J. Lanza I.D. No. 55782 2132 Market Street Attorney for Defendant Camp Hill, Pennsylvania 17011 (717) 730-3775 ERNEST A. CLAWSER, III, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 09-8572 V. _ CIVIL ACTION V' -' VINCENT SCHANER rnC s n o rr7 -- Defendant CA ;uc:' a' DEFENDANT'S MOTION IN LIMINE c ©..n D c) 1. Trial in this matter is scheduled for November 17, 2011. 2. Defendant's Motion for Summary Judgment remains pending before this Court. 3. As alleged in Defendant's Motion for Summary Judgment, Plaintiff's claims are barred by the Home Improvement Consumer Protection Act of 2008, 73 P.S. §517 et seq. ("the Act."). 4. As set forth in Defendant's Motion for Summary Judgment, Plaintiff cannot pursue claims for payment as a result of Plaintiff's material violations of the Act. 5. Defendant hereby incorporates Defendant's Motion for Summary Judgment and Brief in support thereof. 6. Plaintiff must be prohibited from introducing evidence contrary to the relief he would be allowed pursuant to the Act. 7. The Honorable Edward E. Guido has issued prior rulings in this matter. 8. Pursuant to Rule 208, Defendant has sought Plaintiff's concurrence and forwarded a copy of this Petition to Plaintiff's counsel, and Plaintiff has not concurred in this Petition. Wherefore, Defendant requests that this Court issue an Order prohibiting Plaintiff from introducing evidence contrary to the relief permitted under the Home Improvement Consumer Protection Act of 2008. Respectfully submitted, A ?- - David J. Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Defendant CERTIFICATE OF SERVICE AND NOW, this Jth day of November, 2011, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Sam Andes, Esq. 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 And to facsimile number 761-1435 By: David Lanza 288-1 ERNEST A. CLAWSER, III, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. =m rn VINCENT SCHANER, z;0 NO. 2009 - 8572 CIVIL TERM -<> r n Defendant r: <a - - .. o C7 0 3 a-n C ORDER OF COURT D c r ) rrJ AND NOW, this 15TH day of NOVEMBER, 2011, it is hereby ordered and directed as follows: 1.) Defendant's Motion for Summary Judgment is DENIED as untimely. 2.) Defendant's Request for Continuance is DENIED. 3.) Plaintiff's Motion in Limine is DENIED based upon defense counsel's assertion that the required information was later provided by letter of October 14, 2011, and no objection was made thereto prior to the filing of the motion. B e Court, Edward E. Guido, J. ? Samuel L. Andes, Esquire David J. Lanza, Esquire Pfd ? Court Administrator - is bile : sld David J. Lanza I.D. No. 55782 2132 Market Street FILED-OFFICE: Camp Hill, Pennsylvania 1701A„r THE PROTHoNOTAV (717) 730-3775 7011 NOV 15 AM 10: QO ERNEST A. CLAWSER, III, CU PENNSYLVAN A TY Plaintiff V. VINCENT SCHANER Defendant Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-8572 CIVIL ACTION - LAW DEFENDANT'S ANSWER TO PLAINTIFF'S NEW MATTER TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 11. Admitted in Part. Denied in Part. This averment constitutes a conclusion of law. 12. Admitted in Part. Denied in Part. It is admitted that Defendant has pleaded this issue since 2010. Defendant made clear during the pre-trial conference that additional discovery was needed at that time, which discovery was essential to this Motion. Notwithstanding Plaintiff's claims regarding the proximity of trial, Plaintiff has been aware of his own violations of the Home Improvement Consumer Protection Act of 2008 since the inception of this case. 13. Admitted in Part. Denied in Part. At the time this case was scheduled for trial, Plaintiff was made aware that additional discovery would be required, which discovery was essential to Defendant's Summary Judgment Motion. 14. Denied. It is not unreasonable to avoid a trial where the issues are rendered moot by statute. Wherefore, Defendant demands judgment in favor of Defendant and against Plaintiff and that Plaintiff's Complaint be dismissed pursuant to the Home Improvement Consumer Protection Act of 2008 Respectfully submitted, David J. Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Defendant CERTIFICATE OF SERVICE AND NOW, this 15th day of November, 2011, the undersigned does hereby certify that he did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Sam Andes, Esq. 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 Also via fax to 761-1435 7 By: David Lanza 288-1 David J. Lanza I.D. No. 55782 2132 Market Street Camp Hill, Pennsylvania 17011 (717) 730-3775 ERNEST A. CLAWSER, III, Plaintiff V. VINCENT SCHANER Defendant 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-8572 CIVIL ACTION - LAW zrrn ' o •c rn r=- -a z cnr" m ?c? ?D CO C-) Z =O . G C-'3 cn 5. Denied. Defendant provided the information through correspondence dated October 14, 2011. 6. Denied. Defendant timely provided the required information. Plaintiff has provided no notice that the correspondence contained insufficient information until filing this Motion during the week of trial. A. Plaintiff has apparently made no effort to contact the witnesses during the month that has elapsed between Defendant's correspondence of October 14th and the filing of this Motion. B. Plaintiff has possessed this information for more than one month. Plaintiff's claim to suffer prejudice is inconsistent with Plaintiff's opposition to Defendant's Petition for Continuance Pending Resolution of Summary Judgment Motion. 7. Denied. Defendant provided the required information as ordered by the Court. Plaintiff chose to list this case for trial without depositions and did not ask for depositions during the pre-trial conference. Plaintiff personally met some of these witnesses during the course of the purported construction of Defendant's home addition. Some of these witnesses were identified on documents provided by Defendant to Plaintiff prior to Plaintiff listing this case for trial. Plaintiff listed this case for trial before making further inquiry as to the identity of these witnesses. Defendant assumed the risk of any prejudice resulting from listing this case for trial at that stage of the proceedings. 8. Admitted. 9. Admitted. By way of further answer, Plaintiff did not contact Defendant before filing this Motion. Wherefore, Defendant demands that Plaintiff's Motion be dismissed. In the alternative, granting Defendant's Petition for Continuance Pending Resolution of Summary Judgment Motion would render Plaintiff's Motion moot. Respectfully submitted, David J. Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Defendant CERTIFICATE OF SERVICE AND NOW, this 15th day of November, 2011, the undersigned does hereby certify that he did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Sam Andes, Esq. 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 Also via fax to 761-1435 By: David Lanza 288-1