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Home My WebLink About01-7008COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL E. GARMAN and HARRY L. GROSSMAN, trading and doing business as NORTHERN CONSTRUCTION ASSOCIATES OF pENNSYLVANIA, a partnership Plaintiffs VS. ESTHER HUMPHREY, LISA HATHCOX and ELLA JEAN NICHOLS, jointly and severally, Defendants NOTICE Civil Term No. Civil Action - Law 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 ailer 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. Lawyer Referral Service Court Administrator Cumberland County Courthouse Carlisle, PA 17013 717-240-6200 NICHOLAS & FOREMAN, P.C. ~ce D. ~[~rem~[n, ]~tX~re 4409 North Front Street Harrisburg, PA 17110 (717) 236-9391 ID #21193 Attorneys for Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL E. GARMAN and HARRY L. GROSSMAN, trading and doing business as NORTHERN CONSTRUCTION ASSOCIATES OF PENNSYLVANIA, a partnership Plaintiffs VS. ESTHER HUMPHREY, LISA HATHCOX and ELLA JEAN NICHOLS, jointly and severally, Defendants Civil Term No. d)~ -- Civil Action - Law NOTICIA Le han demandado a Usted en la corte. Si Usted quiere defenderse de estas demandas expuestas en las paginas siguientes, Usted tiene viente (20) dias de plazo al parfir 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 objecinnes a las demandas en contra de su personal· 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 pot 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 INMEDATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL· Lawyer Referral Service Court Administrator Cumberland County Courthouse Carlisle, PA 17013 717-240-6200 NICHOLAS ,~REMAN, P~ Bm~e D. For~ma~ 4409 North Front Street Harrisburg, PA 17110 (717) 236-9391 ID #21193 Attorneys for Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL E. GARMAN and HARRY L. GROSSMAN, trading and doing business as NORTHERN CONSTRUCTION ASSOCIATES OF PENNSYLVANIA, a parmership Plaintiffs VS. ESTHER HUMPHREY, LISA HATHCOX and ELLA JEAN NICHOLS, jointly and severally, Defendants Civil Term No. O\ --- '7'004) Civil Action - Law COMPLAINT AND NOW comes the Plaintiffs, Michael E. Garman and Harry L. Grossman, trading and doing business as Northern Construction Associates, a parmership existing under the laws of the Commonwealth of Pennsylvania, by their attorneys, Nicholas & Foreman, P.C. and aver as follows: 1. The Plaintiffs, Michael E. Garman and Harry L. Grossman, are adult individuals trading and doing business as Northern Construction Associates, a Pennsylvania General Partnership having is principal place of business at 518 Bridge Street, New Cumberland, Cumberland County, pennsylvania, 17070. 2. The Defendants, Esther Humphrey, Lisa Hathcox, and Ella Jean Nichols, are all adult individuals, each residing at 1208 Redwood Hills Circle, Carlisle, Cumberland County, Pennsylvania, 17013. 3. At all times relevant hereto, each of the Defendants was acting as the authorized agent of all other Defendants and all liability of the Defendants is joint and several. 4. On or about October 9, 2000, Defendants, jointly and severally, entered into a written Construction Agreement whereby Defendants contracted with Plaintiffs to construct a single family residential house on a lot owned by Defendants known as Lot //22 Redwood Hills, Middlesex Township, Cumberland County, Pennsylvania. A true and correct copy of the said Construction Agreement is attached hereto, labeled Exhibit "A", and made a part hereof. 5. Under the terms of the aforesaid Agreement, the Defendants were not entitled to the keys or possession of the property being constructed until all sums due under the Agreement were paid in full. 6. Under Paragraph 16 of the aforesaid Agreement, in the event that the Defendants occupied or took possession of the property before the final payment was made, it would be a breach of the contract and would be a legal acceptance by Defendants of the newly constructed home in "as is" condition waiving any and all claims against the Plaintiffs as contractors. 7. On or about the 26th day of April 2001, Defendants took possession of the property, moved in and have occupied the same since that date. 8. Despite repeated demands, while Defendants had paid part of the sum due, the Defendants continue to owe $14,512.11 principal on the construction contract, which amount they have refused and continue to refuse to pay. 9. Under the terms of the aforesaid contract, all late payments result in a late charge of $25 per day. Since the date that Defendants have taken possession, through the 13th day of December 2001, 232 days have elapsed obligating Defendants to pay to Plaintiffs a late charge in the amount of $5,800. 10. The said late charge continues to accrue at the rate of $25 per day until the aforesaid receipt of payment is made in full. WHEREFORE, Plaintiffs demand judgment against the Defendants, jointly and severally in the amount of $20,312.11 together with continuing late charges in the amount of $25 per day together with reasonable attorneys fees and court costs, all of which is within the limits of arbitration as set forth by rules of court. Respectfully submitted, NICHOLAS & FOREMAN, P.C. Atty ID No. 21193 4409 North Front Street Harrisburg, PA 17110 717-236-9391 Attorneys for Defendants Dated: VERIFICATION I verify that the statements made in foregoing Complaint are tree and correct to the best of my knowledge. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. Dated: ~ 2~ ~ t 7_- 0 / Northern Construction Associates Michael E. Garman Exhibit A Page 1 of 7 Construction Agreement This agreement made this 9th day of October, 2000, by and between, Esther Humphrey Lisa Hathcox Ella Jean Nichols, hereinafter referred to as the owner. Nortbem Construction Associates, a partnership existing under the laws of the Commonwealth of Pennsylvania, having its principal place of business at 518 Bridge St., New Cumberland, PA 17070, hereinafter referred to as the Contractor. WITNESSETH, that the parties hereto, agree, as follows: 1. Price; Payment: The Owner agrees to pay the Contractor for the performance of the work herein set forth the sum of $285,840 as follows: Construction Draw Schedule Foundation - 15% Excavated, footers, foundation walls, and first floor deck Framing - 25% Studding, partitions framed, ceiling joists, rat~ers/trusses, roof sheathing, underlayment, sheathing, windows and exterior doors, structure secured. Rough-ins - 10% Rough wiring, rough plumbing and heating, insulation installed Exterior - 20% Masonry/siding, septic tank, drairVfield/sewer, water supply connected Interior - 20% Drywall, doors, trim, cabinets and vanities, interior painting Final Draw - 10% Electrical and plumbing fixtures, floor coverings, appliances, ready for occupancy The Contractor is authorized to adjust the above schedule of payments in accordance with fi~ancing requiremems of Owner's lender. Payment's are due no later than 15 business days afl[er Contractor's request for each draw, but subject to lenders draw inspection and approval Owner will pay a late charge of $25 per day to Contractor for each additional day thereafter, until paid. 10/ 9/00 Page 2 of 7 2. Direct Payment by Lender: The parties hereto agree that all payments due the Contractor for work done and materials furnished shall be made directly to the Comractor by the Mortgagee, if any, without the joinder of the Owner and the Owner herein authorizes and directs the Mortgagee to make payments pursuant to the payment schedule directly to the Contractor. 3. Location: The Contractor shah erect and build a single family home on premise of the Owner situated or described as follows: Lot 22 Redwood Flill.~, Middlesex Township 4. Time for Completion: The work to be performed by the Contractor shall be substantially completed within 165 days of commencement of construction permitting the issuance ora certificate of occupancy, except as otherwise provided hereilx 5. Plans Included in Agreement: The aforesaid building shall be erected in substantial accordance with the final floor plans, specifications, worksheets, and purchase or change orders, which shall be duly executed and which are made a part of this Agreemem and which are hereaRer called "Agreement." Building elevation views are approximate and may not be built exactly to plan. Contractor shall furnish all materials and perform all the work as required to complete the building in accordance with this agreement, except that work and material to be performed and furnished by the Owner as provided herein~ 6. Siting of Building; Excavation: The Contractor will at its own cost stake out the foundation on the Owner's lot using Contractor's judgment as to the house placement and elevation, coordinating with Owner on same. Contractor will excavate and erect the foundation, machine backfill the foundation with materials excavated upon the premises and complete the structure in accordance with the Agreement. Owner agrees, that in the event additional back-fill or topsoil is required by Owner, that it will be promptly supplied at Owner's cost. 7. Unusual Conditions: a.) In the event that the Contractor encounters any unusual conditions during the course of construction, such as solid or machine rock, quicksand, sinkholes, water, springs and the unusual condition requires any other work which, in the opinion of the Contractor is considered to be unusual; such as removal of rock by blasting or drilling or by their special excavation, or the installation of special footings, sub-base, foundation wall.q or drain tiles, the Contractor shall be compensated additionally by Owner for such work and materials provided at Contractor's usual rates and charges. 10/ 9/00 Page 3 of 7 b.) Upon discove~j of the unusual condition, Contractor shall promptly give Owner written notice thereof. Owner shall have the option of agreeing to Contractor performing the extra work or of terminating this Contract. Owner shall give the Contractor written notice of his election within ten (10) days of Owner's receipt of the Contractor's notice. If Owner elects to te~ininate this Agreement, Owner shall pay to the Contractor the actual cost of materials and labor performed and furnished by Contractor to the date of the Contractor's notice to the Owner, plus an additional twenty five (25%) percent. The Contractor shall apply any advances made by the Owner to such payment due fi:om the Owner upon texscfination as aforesaid and shall refund the excess, if any. Upon termination as aforesaid, Owner does hereby remise and release Contractor l~om any claim whatsoever arising out of this Agreement. If the Owner fails to reply in writing with ten (10) days to the Contractor's notice, the Contractor, may, at its option, elect to treat this agreement as te~sj, lnated and Owner shall be liable for the payments upon termination as set forth hereinabove. Contractor shall give Owner written notice of said election. c.) In the event that additional concrete is required for deeper footers than are herein provided because of site conditions, Owner hereby authorizes Contractor to supply and install the additional concrete and Owner agrees to compensate Contractor for the cost of such additional concrete. 8. Excused Delays: The Contractors shall not be liable for any delay in the prosecution or completion of the work caused by the act, neglect, default of the Owner, or as a result of changes or alterations in the plan.q and specifications made by the Owner, or by damage or fire, earthqualce or other casualty for which the Contractor is not responsible, or by str~e, walk-outs or any other acts of employees or suppliers of labor or matefial.q~ over which the Contractors has no control or for which the Contractor is not responsible. In any such event the time herein fixed for the completion of the work shall be extended for a period equivalent to the time lost by any reason of any of the causes aforesaid. 9. Permits; Utilities: The Owner hereby authorizes and appoints Contractor to obtain at the Contractors expense, all necessary permits or authorizations from all municipal or gow~a~nental bureaus and departments or utilities which may be required for the construction or occupancy of said dwelling house, and to that end, authorize the Contractor to execute their names to any applications for such pet~ts or authorizations. ~'he Owner shall provide and pay for electric, water, sewer and heating fuel or energy to be used during the course of construction. 10. Work by Owner: In the event that the Owner desires or may be required to provide labor and materials not included in this Agreement, he shall not do so without the prior written approval of the Contractor and shall do so only in such manner as to not delay the material progress of the Contractor's work. Owner further agrees to not ,0, ,00 P~'g¢ 4 of 7 interfere with the material progress of the work. In the event that the Owner does not promptly complete the work he is obligated to do hereunder, Contractor may complete same and Owner shall pay Contractor's cost plus twenty five (25%) percent. Should the Owner, in sole opinion of Contractor, interfere with the construction or fail to make scheduled payments when requested, Contractor may consider such failure a breach of this Agreement and that breach will excuse Contractor from further perfom~mee and Contractor shall receive all sums due hereunder, including profit lost. 11. Insurance; Risk of Loss: The Owner shall during the progress of the work maintain insurance on the same against loss or damage by fire, as well as insumnco to protect the Contractor against any losses, claims, actions or suits either at law or equity for injury to persons or damages to property, the policies to cover all work incorporated in the building, and all materials for the same in or about the premises, and to be made payable to the parties hereto, as their interest may appear. Owner does hereby agree to be responsible for any theft, malicious mischief and vandalism upon the uhacture during the course of said construction and. upon all materials in or adjacent to the structure intended for use thereon. Owner does further agree that the risk of loss of any work or materials performed or furnished under the temps of this Agreement through fire, varldali.qm, theft, malicious or any other hazard shall be upon Owner. 12. Stipulation Against Liens: Contemporaneously with the signing of this Agreement, the Contractor slmll execute a proper stipulation against any and all mechanics' liens, which stipulation shall be recorded at the Prothonotary's Office prior to construction. 13. Additonal Costs; Code Compliance, Taxes: In the event that any municipal or governmental entity requires any item or tax not specifically included in this Agreement such cost shall be that of the Owner, including any and all survey(s) or finance inspection fees specified buy lender or governmental agency. 14. Substitution of Materials: In the event that the Conhactor is unable to obtain the exact material.q specified on the plans and specifications or on the options attached hereto, through the Contractor's ordinary and us-al sources of supply, the Contractor shall have the right to substitute materials of similar pattern, design and qnality. 15. Owner's Warranties: Owner covenants, represents and warrants that he is the Owner of record of the aforesaid premises; that there is no unrecorded deeds; that the title is good, marketable and insurable by any reputable title company; that a perpetnal right of way exists to the premises; that the said premises is free of any encumbrances, liens, easements, etc.; that there are no actions, cause of actions, or claims which might at a later date impair the title. The Owner shall, at his expense, forthwith remedy any breach or violation hereof which may exist or arise at any time. The Owner particularly understands and agrees that each covenant, representation, and warranty, herein 10/ 9/00 Page 5 of 7 contained, is severally of the essence of this Agreement and the breach or violation of any one shall excuse performance by the Contractor. 16. Inspection; Occupancy; Contractor shall at any reasonable time permit Owner to inspect said construction and buildings but Owner shall not be entitled to keys or possession of the building prior to payment of all sums due under this Agreement. IN NO EVENT SHALL OWNER OCCUPY OR TAKE POSSESSION BEFORE FINAL PAYMENT HAS BEEN MADE AND/OR THE CONSENT OF CONTRACTOR, WHICH CONSENT SHALL NOT BE UNREASONABLEY WITHHELD. CONTRACTORS CONSENT THALL BE IN WRITING AS PROVIDED ON THIS CONTRACT. IN THE EVENT OWNER BREACHES THIS PROVISION HE SHALL BE DEEMED TO HAVE ACCEPTED THE HOME "AS IS" AND DOES THEREBY WAIVE ANY CLAIMS AGAINST CONTRACTOR. A breach of this provision by the Owner, slaall be considered a breach of the contract by the Owner and shall entitle the Contractor to stop work or terminate this contract and recover fxom the Owner payment for all work executed and any loss sustained. 17. Entire Agreement; Changes: It is understood and agreed that the entire Agreement of the parties is contained in this Construction Agreement, plans and specifications. The parties warrant that there exists no other agreements, wri[ten or oral pertainin~ to this transaction. ANY OTHER WRITTEN AGREEMENTS REQUIRED BY A FINANCIAL INSTITUTION HEREAFTER SHALL BE SUPPLEMENTARY HERETO. No changes will be made in the plans and specifications unless a work-change order has been prepared in writing, signed by the Contractor and Owner, specifically stating the details of the change in construction and the additional cost thereof or credit to be allowed against the contract price of construction. Contractor reserves the right to refuse to approve changes which result in a substantial alteration of the plans and specifications. 18. Owner's Duty to Report Defects: Owner agrees to exercise reasonable diligence in ascertaining and reporting to Contractor, as work under this A40~ement progresses, any defects, deviations or deficiency in perfoiii~ance or material. The failure of Owner to so ascertain and inform Contractor, shall be considered a waiver of any claim by Owner thereafter for said defect, deficiency or deviation. Owner agrees, that any progress shall be deemed in full and complete acceptance of said work perfo,med by Contractor up to the time of said payment, except for those defects, deficiencies or deviations which Owner has advised Contractor of in writing as herein set forth. 19. Notice of Completion; Final Inspection: a.) Except as set forth herein above, the dwelling shall be considered completed when it has bc~-a constructed in substantial confota,ance with the plans and specifications herein above mentioned, or if required, when a certificate of occupancy has been issued or when said dwelling house has passed final inspection by the municipal, borough or township building inspector, or lending institution. Upon completion of performance of this Agreement, Contractor shall within five (5) days thereafter, give Owner notice of said Page 6 of 7 completion and Owner shall thereafter, within five (5) days of said notice by Contractor, inspect the premises with a representative of Contractor and advise Contractor, in writing of any defects, deficiencies or deviations in material or labor. b.) Failure of Owner to: 1) Inspect; and 2) Give notice as aforesaid; and 3) Enumerate said defects, shall be deemed a waiver of any claim thereafter by Owner of said defect, deficiency or deviation and Owner does hereby release Contractor from any claim arising therefrom- Said waiver shall not effect warranty providing all contract and change order payments have been paid. 20. Warranty; Procedure: See attached warranty documentation. 21. Unused Materials: It is understood and agreed that the Owner shall not he entitled to any substantial material, which has not been incorporated into the con~kaction, except where he has specifically paid for such material under the special provisions of this Agreement relating to payment specifically of costs of materials included in allowance 22. Binding Effect: This Agreement shall be binding upon the parties, their heirs, executors, administrators, successors and assi~tms. Agreement Not A~ignnble: This Agreement shall not be assigned by 23. 24. Notice~: All notices hereunder, to Contractor shall be sent to Contractor at 518 Bridge St., New Cumberland, PA 17070 or such other address as Contractor may by written notification advise Owner. Notice to Owner shall he sent to Owner at the address below, or such other address as Owner may by written notification advise Contractor. IN WITNESS WHEREOF, the parties hereto, intend to be legally bound hereby, have hereunder set their hands and seals the day and year first above written. 10/ 9/00 Page 7 of 7 . WITNESS AS TO OWNER: WITNESS AS TO OWNER: DATE: OWNER: ~/' DATE: OWNER: WITNESS AS TO CONTRACTOR: DATE: CONTRACTOR: (SEAL) CONTRACTORS CONSENT TO OCUPY WITNESS AS TO OWNER: DATE: OWNER: (SEAL) WITNESS AS TO CONTRACTOR: DATE: CONTRACTOR: .(SEAL) TITLE I0/ 9/00 NICHOLAS & F. OREMAN, P.C. SHERIFF'S RETURN - REGULAR CAS~ NO: 2001-07008 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GARMAN MICHAEL E ET AL VS HUMPHREY ESTHER ET AL CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon HUMPHREY ESTHER the DEFENDANT at 1444:00 HOURS, on the 19th day of December , 2001 at 1208 REDWOOD HILLS CIRCLE CARLISLE, PA 17013 LISA HATHCOX, ROOMMATE a true and attested copy of by handing to COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.25 Affidavit .00 Surcharge 10.00 .00 31.25 Sworn and Subscribed to before me this [~ day of ~P~othon0ta~y ' / J So Answers: R. Thomas Kline 12/20/2001 NICHOLAS & FOR/~ By: /~~~~ // Depuh¥/-~-~riff SHERIFF'S RETURN CA~E NO: 2001-07008 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GARMAN MICHAEL E ET AL VS HUMPHREY ESTHER ET AL - REGULAR CPL. MICHAEL BARRICK Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLJtINT & NOTICE was served upon HATHCOX LISA the DEFENDANT at 1444:00 HOURS, at 1208 REDWOOD HILLS CIRCLE CARLISLE, PA 17013 on the 19th day of December , 2001 by handing to LISA HATHCOX a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this [~ day of ~ ~ ~2.~ A.D. /P~otH0nOta-ry ' So Answers: R. Thomas Kline 12/2o/2ool NICHOLASBy: & ~~ Deputy Sheriff SHERIFF'S · CAS~ NO: 2001-07008 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GARMAN MICHAEL E ET AL VS HUMPHREY ESTHER ET AL RETURN - REGULAR CPL. MICHAEL BARRICK Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon NICHOLS ELLA JEAN the DEFENDANT , at 1444:00 HOURS, on the 19th day of December at 1208 REDWOOD HILLS CIRCLE 2001 CARLISLE, PA 17013 by handing to LISA HATHCOX, ROOMMATE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff,s Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this [~ day of ~ ~e;~ A.D. / ~oth~notary' / ~ So Answers: R. Thomas Kline N1 ~/C2HO0/I~2 S00 ~ FOREMAN By: ~/~Deputy k~heri f f MICHAEL E. GARMAN and HARRY L. GROSSMAN, d/b/a/NORTHERN CONSTRUCTION ASSOCIATES OF PENNSYLVANIA, a partnership, Plaintiffs ESTHER HUMPHREY, LISA HATHCOX and ELLA JEAN NICHOLS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-7008 CIVIL ACTION-LAW NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED NEW MATTER WITH COUNTERCLAIMS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. Stephen B. Lipson, Es~. Co-Counsel DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIMS 1.-2. Admitted. 3. Admitted in part and denied in part. It is admitted that Defendant Ella Jean Nichols did, on occasion, act as agent for the other two Defendants. However, it is denied that Defendants Humphrey and Hathcox had such authority to act on behalf of the other Defendants. The allegation that all liability is joim and several is a conclusion of law to which no response is required. 4. Admitted in part and denied in part. It is admitted that Defendants Nichols and Hathcox signed the Construction Agreement in question. It is denied that Defendant Humphrey signed the agreement, and no individual signed the agreement for her. It is further denied that Exhibit A is a true and correct copy of the entire Agreement. Paragraph 20 of said agreement refers to "attached warranty documentation", yet Plaintiffs have not included this documentation with the Exhibit. 5. Denied. Interpretation of said agreement is a matter for the trier of fact in this case. Moreover, Plaintiffs and Defendants reached an oral agreement under which Plaintiffs consented to Defendants' taking of possession on or about April 26, 2001, thereby altering the written obligations referred to by Plaintiffs in this paragraph. 6. Denied, for the reasons stated in Defendants' answer to paragraph 5, supra. 7. Admitted. 8. Denied. Plaintiffs breached their contract with Defendants by failing both to (a.) repair/replace those items not consistent with specifications, thereby not completing construction, and (b.) repair those items not done in a workmanlike manner. Defendants will be forced to spend an amount in excess of $14,512.11 to correct these deficiencies, and thus Defendants are not liable to Plaintiffs for any additional monies. 9. Denied. Interpretation of said Agreement is a matter for the trier of fact in this case. Moreover, because Defendants owe no money to Plaintiffs no late charges are due and owing to Plaintiffs. This late charge provision is not enfomeable for reasons discussed in paragraph 11 of Defendants' New Matter, infra. 10. Denied, for the reasons stated in Defendants' answer to paragraph 9, supra. WHEREFORE, Defendants request that this honorable court dismiss Plaintiffs' Complaint and enter judgment in their favor. Note that Plaintiffs have cited no authority for their demand for attorneys fees and that same therefore cannot be awarded to them. NEW MATTER 11. The late payment charge of $25.00 per day is a penalty and thus is not enforceable as liquidated damages. For example, said daily amount would total $9,125.00 over the course of one year, or almost 63% of the principal amount. Obviously, this amount is not a reasonable estimate of Plaintiffs' damages. 12. Plaintiffs substantially breached the contract at issue by failing/refusing to complete construction within 165 days of October 10, 2000, the date that construction commenced. Defendants sustained damages as a result of said breach, including, but not limited to, having to "lease back" their prior residence from the individuals who purchased same from them in the late winter/early spring of 2001. 13. By negotiations beginning in early March of 2001, Defendants agreed to give Plaintiffs additional time to complete construction in exchange for Defendants being allowed to take possession prior to completion. Plaintiffs orally consented to said modification of paragraph 16 of the contract and gave the keys to Defendants. 14. This oral modification of the contract was for good and valuable consideration and is binding upon Plaintiffs and Defendants in spite of the language in the contract requiring that such consent be in writing. See Universal Builders, Inc. v. Moon Motor Lodge, Inc., 430 Pa. 550 (1968) and Fina v. Finm 737 A.2d 760, Pa. Super. (1999). 15. Plaintiffs are estopped from enforcing paragraph 16 to the detriment of Defendants and/or have waived enforcement of same. 16. Plaintiffs did not build the home consistent with the specifications and change orders; therefore, Plaintiffs did not complete construction and are not entitled to a final draw. COUNTERCLAIM I - CLAIM OF DEFENDANT HUMPHREY 17. The allegations contained in paragraph 1 through 16, supra, are incorporated herein and made a part hereof as if more fully set forth. 18. Defendant Humphrey did not sign the Construction Agreement in question, nor did anyone sign same as her agent. In addition, contrary to the designation of her in said contract as an "owner", she had no ownership in the premises at that time or during construction. See deed book 228, page 613, for the recorded deed from Plaintiffs to Defendants Hathcox and Nichols. 19. Plaintiffs acted arbitrarily and in bad faith in instituting this litigation against the Defendant Humphrey in as much as there is no theory of liability in their Complaint remotely applicable to her. Therefore, Defendant Humphrey is entitled to her proportional share of attorneys fees to date from Plaintiff, as well as additional fees in the future as the litigation is continued against her. WHEREFORE, Defendant Humphrey requests that this honorable court dismiss Plaintiffs' Complaint and enter judgment in her favor and against Plaintiffs for attorneys fees and costs. COUNTERCLAIM II - CLAIM OF ALL DEFENDANTS 20. The allegations contained in paragraph 1 through 16, supra, are incorporated herein and made a part hereof as if more fully set forth. 21. Commencing in the winter/spring of 2001, Defendants informed Plaintiffs on numerous occasions of the items that had to be repaired/replaced in order for Plaintiffs to have completed construction in accordance with specifications and change orders. In fact, in July of 2001, Plaintiffs requested a list of said deficiencies and Defendant Nichols provided same to Plaintiff Garman, who said that either he would complete same or allow Defendants to use the remaining money to pay for the services of another contractor to perform the work. This is one of several lists of deficiencies which was provided to Plaintiffs with the last list being one dated November 9, 2001, a copy of which is attached hereto and incorporated herein as Defendant's Exhibit A. Note that Defendants' offer to take care of some of the items on this list was predicated upon Plaintiffs' agreement to allow Defendants to keep the balance of the monies to pay for the work. 22. Plaintiffs did not complete this work and thus Defendants have been forced to hire another contractor to do the work. The November 9t~ list is not a complete list of the existing deficiencies, but it does contain most of them known to date. One additional major item yet to be addressed is the condition of the basement floor, which is developing large, open cracks in the concrete. The nature of the work, and cost of same, necessary to correct this defect has not been determined at this time. 23. The cost of repairs/replacement of all items in breach of Plaintiffs' contractual obligations will exceed the dollar amount being sought by Plaintiff. Therefore, Plaintiffs are indebted to Defendants for the extra amount, which is not a definite, final figure at this time. 24. Although Defendants do not possess a copy of the warranty documents that were a part of the construction contract with Plaintiffs, Plaintiffs' failure to make necessary repairs is a breach of the warranty provision. See 73 P.S. Section 201-2(4)(xiv). Defendants are entitled to their attorneys fees, as well as triple damages under Section 201-9.2 of the Unfair Trade Practices Law as a result of Plaintiffs failure to honor its warranty. WHEREFORE, Defendants demand judgment in their favor and against Plaintiffs for all damages, including the $14,512.11 not paid to Plaintiffs, as well as additional damages the amount of which is unliquldated at present, together with triple damages and attorneys fees. Respectfully submitted, Steph~n B. Lipson Co-Counsel for the Defendants ID No. 19453 61 W. Louther St. Carlisle, PA 17013 Stephanie E. Chertok Co-Counsel for the Defendants ID No. 52651 61 W. Louther St. Carlisle, PA 17013 VERIFICATION I, Ella Jean Nichols, verify that the statements made in the foregoing document are true and correct to the best of my knowledge. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. section 4904 relating to unswom falsification to authorities. Date: Ella Jear~ichols MICHAEL E. GARMAN and HARRY L. GROSSMAN, d/b/a/NORTHERN CONSTRUCTION ASSOCIATES OF PENNSYLVANIA, a partnership, Plaintiffs ESTHER HUMPHREY, LISA HATHCOX and ELLA JEAN NICHOLS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-7008 CIVIL ACTION-LAW CERTIFICATE OF SERVICE I, Stephen B. Lipson, co-counsel for the Plaintiffs, do hereby certify that a copy of the Defendants' Answer with New Matter and Counterclaims was served this//~,--day of ~t/~,~ ,2002, by first-class, U.S. mail upon those listed below: / Bruce D. Foreman, Esq. Attorney for Plaintiffs 4409 North Front St. Harrisburg, PA 17110 Stephen B. Lipson Co-Counsel for Defendants WORK NOT ~/~T SATISFAcToRY AT 1208 REDWOOD I~ILLS CARLISLe, PA NOVEMBER 2001 PREVIOUSLY IDENTIFIED PRIOR TO OCCUPANCY (STILL NOT RESOLVED): KITCHEN: HOLE FOR PIPE UNDER WET BAR NOT COVERED PA/~TRy SHF. LVES NOT INSTALLED TO CUSTOMER, S WISHEs S~RAT~HaS ON HARDWOOD FLOORS *FRONT STAIRs: SECOND FLOOR: WERE TO HAVE OAK TREADS CLOSET DOORS MISALIGNED RASEMENT: *CRACKS IN CONCRETE. FLOOR NOT PROPERLY TREATED OR SEALED - *LEAKING AROUND DOORS (DETERMINED TO BE CAUSED DY THE SLOPE OF THE PATIO SLANTED TOWARDS HOUSE) (WILL RESOLVE SELF) OR FINISHED. CONCRETE AT FRENCH DOORS WAS NEVER SMOOTHED OUT DECKS: RAILING IN MIDDLE O~ WINDOW (THIS WAS SPECIFICALLY DISCUSSED PRIOR TO APPOViNG THIS CONSTRUCTION AS OPPOOhD TO THE CONCRETE PATIo THAT WAS SUPPOSED TO SE INSTALLED. CUSTOMER WAS TOLD THAT THE PALLING WOULD NOT BE IN T~]E MIDDLE 05' THE W!NDCW AND THAT THE UPPER PART OF THE LOWER DECK WOULD BE CANTILEVERED TO ENSURE THAT IT WAS NOT.) WOOD USeD NOT WEATHER TREATED (KILN DRIED BUT NOT WEATHER TREATED, ALREADY WARPING) LATTICE USE IS OF EXTREMELY POOR QUALITY UPPER DECK WAS ORIGINALLY ORDERED AS TREX OR EQUIVALENT, NOT WOOf: FRONT DOOR: NOT COMPLETE UNIT(?) ME_A~ TUPESHoLD TO BE REPLACED. WAS A "TEMPORARY DOOR" PER DERRICK WHEN iT WAS INSTA&:.£D. NOT DOOR SELECTED BY CUSTOP4ER. STEPS IN GARAGE - WERE 1OLC THESE WERE TEMPORARY AND BE ~EPLACED WITH "REAL" STAIRS. *SECOND SET OF STAIRS NOT INSTALLED AS INSTRUCTED By CUSTOMER. CUSTOMER ].1A$ REINSTALLED TO OWN SPECIFICATION. 'GARAGE FLOOR CRACKED PORCH RAILING - LOWER RAIL NOT PROPERLY INSTALLED/CUT. FRONT PORCH - CONCRETE PORCH DOES NOT SLOPE AWAY FROM HOUSE. WATER PUDDLES ON PORCH (NOW CONCRETE IS CRACKINS) SCREEN AT WINDOW ON FRONT OF HOUSE NOT TIIE RIGHT CONTRACTOR USED EXPANDABLE FOAM AROUND WINDOW FRAMES WHICH COULD VOID Wlt~RANTY ACCORDING TO MANUFACTURER'S SPECIFICATIONS *FiR~PLACz INSERT NOT THE ONE SELECTED BY CUSTOMER. CUSTOMER NOT CONSULTED ON FIREPLAC~ ~CE(CUSTOMER HAS CONTRACTED WITH A/~OTHER TO CORRECT - AT OWN EXPENSE) *DINING ROOM BUILT-IN NOT BUILT TO SPECIFICATIONS. AFTEn ATTEMPTS BY BUILDER TO CORRECT, CUSTOMER HAS CONTRACTED WITH ANOTHER TO CORRECT - AT OWN EXPENSE. *ALL SHUT OFF VALVES WERE TO BE ACCESSIBLE AND MARKED. HAVE HAD THE ACCESSIBLE ONES MAKKED. NOT AI,L ARE ACCESSIBLE. CONCRETE AF, OUND CONCRETE BLOCKS IN GARAGE HAD DISINTEGRATED ADDITIONAL iTEMS THAT HAVE BEEN IDENTIFIED SINCE OCCUPANCY *SLOPE OF SUNROOM ROOF MAY BE TOO SHALLOW (iT IS SOKDERL!NE DEPENDING ON THE BUILDING CODES) AND ROOFING MATERIALS MAY NOT BE GUARANTEED BECAUSE OF IT - DEPENDS ON THE MANUFACTURER. *'INTERIOR STAIR SUPPORTS WITHIN THE BASEMENT WERE NO'!' PLUMB *TR£ SEALS ON AT LEAST ONE OF THE WINDOWS ARE DEFECTIVE. HAVE TALKED TO THE M~IfUFACTURER AND THEY ARE WARRANTEED. NEED TO KNOW WHERE THeY WERE PURCHASED. HAVE ASKED FOR THIS INFOkV~TION BUT IT HAS NOT BEEN PROVIDED. CUSTOMER WILL RAVE WARANTEED WINDOW REPLACED BUT DOES NEED TO KNOW WHERE iT WAS PURCHASED. E~RGENCY .R/~PAIR REQUIRED FOR WATER SYSTEM WHEN NO WATER WAS AVAILABLE FROM THE WELL. BILL PROVIDED TO MIKE GARMAN (SHOULD NOT }{AVE ~E~N BILLED ANYWAYS - NOT IN HOUSE 6 MONTHS, INSTALLED 6 MONTHS AND 2 DAYS BEFORE) CONTINUED TO F~VK. GAS SMELL IN FIREPLACE AFTER REPAIRED (IDENTIFIED PRIOR TO MOVING IN). GAS COMPANY DISCOVERED A LEAK AND TURNED IT OFF. MCCLURE REPAIRED. *DOWNSPOUT RUNOUTS WERE NOT PROPERLY INSTALLED. CUSTO.~R IS WORKING WITH LANDSCAPER. *EXTREMELY POOR GRADING, TOPSOIl, AND GRADE OF GRASS USED. CUSTOMER WORKING WITH LANDSCAPER. *WOODWOR~K USED FOR BASEBOARDS THROUGHOUT T}IE HOUSE IS NOT WOOD, BUT A COMPOSITE - NOT GOOD QUALITY. *QUARTER ROUND M~LDiNG AT BASEBOARD INSTALLED BACKWARDS - SHOULD BE INSTALLED WITH SHORT SIDE TO FLOOR. *SELECTED DOORS NOT HUNG PROPERLY ~CLOSET RODS IN FRONT FIRST FLOOR BEDROOM NOT INSTALLED TO CUSTOMER'S REQUIREMENTS ~WASHER AND DRYER NOT INSTALLED TO CUSTOMER'S SPECIFICATIONS WITHIN THE LAUNDRY AREA ON SECOND FLOOR (NEED THE NAMES OF SUBCONTRACTORS THAT GUARANTEE THEIR OWN WORK OR PRODUCTS) +WILL LiVE WITH/OR TAKE CARE OF PLEASE NOTE: THE ONLY EMPLOYEE OF NORTHERN CONSTRUCTION NOT WELCOME BACK TO COMPLETE WORK IS BRIAN WHO SWORE AT MY MOTME9. APPARENTLY HE iS NO LONGER EMPLOYED BY NORTHERN. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL E. GARMAN and HARRY L. GROSSMAN, trading and doing business as NORTHERN CONSTRUCTION ASSOCIATES OF PENNSYLVANIA, a partnership Plaintiffs VS. ESTHER HUMPHREY, LISA HATHCOX and ELLA JEAN NICHOLS, jointly and severally, Defendants Civil Term No. 01-7008 Civil Action - Law PLAINTIFF'S ANSWER TO NEW MATTER AND COUNTER-CLAIM 11. To the extent that Paragraph 11 of Defendant's New Matter is not a legal conclusion and requires response, the same is denied and, if relevant, strict proof thereof is demanded at trial. 12. To the extent that Paragraph 12 of Defendant's New Matter is not a legal conclusion and requires response, the same is denied and, if relevant, strict proof thereof is demanded at trial. By way of further answer, after reasonable investigation, Plaintiff's lack the knowledge necessary to make a determination as to the truth or the falsity of the factual averments of Paragraph 12 of PlaintifFs New Matter and accordingly, if relevant, the same is denied and strict proof thereof is demanded at trial. 13. Denied; the averments of Paragraph 13 of Defendant's New Matter are denied and, if relevant, strict proof thereof is demanded at trial. 14. To the extent that Paragraph 14 of Defendant's New Matter is not a legal conclusion and requires response, the same is denied and, if relevant, strict proof thereof is demanded at trial. 15. To the extent that Paragraph 15 of the Defendant's New Matter is not a legal conclusion and requires response, the same is denied and, if relevant, strict proof thereof is demanded at trial. 16. To the extent that Paragraph 16 of the Defendant's New Matter is not a legal conclusion and requires response, the same is denied and, if relevant, strict proof thereof is demanded at trial. By way of further response, all factual averments of Paragraph 16 of Defendant's New Matter are denied and, if relevant, strict proof thereof is demanded at trial. ANSWER TO COUNTER-CLAIM I 17. The allegations of Plaintiff's Complaim and Plaintiff's Answers to New Matter, Paragraphs 1 through 16, are incorporated herein as if fully set forth. 18. To the extent that Paragraph 18 of Defendant Humphrey's Counter-Claim is not a legal conclusion and requires response, the same is denied and, if relevant, strict proof thereof is demanded at trial. 19. To the extent that Paragraph 19 of Defendant Humphrey's Counter-Claim is not a legal conclusion and requires response, the same is denied and, if relevant, strict proof thereof is demanded at trial. 2 ANSWER TO COUNTER-CLAIM II 20. The allegations of Plaintiff's Complaint, Plaintiff's Answers to New Matter and Plaintiff's Response to Counter-Claim I, Paragraphs 1 through 19, are incorporated herein as if fully set forth. 21. Denied as stated; it is admitted that Defendants did request certain work from Plaintiffs, some of which was done, however, it is denied that the same was done on numerous occasions or that Plaintiffs were advised that the same was necessary to complete construction. The remainder of the averments of Paragraph 21 of Defendant's Counter-Claim are denied and, if relevant, strict proof thereof is demanded at trial. 22. To the extent that Paragraph 22 of Defendant's Counter-Claim is not a legal conclusion and requires a response, the same is denied and, if relevant, strict proof thereof is demanded at trial. 23. To the extent that Paragraph 23 of Defendant's Counter-Claim is not a legal conclusion and requires a response, the same is denied and, if relevant, strict proof thereof is demanded at trial. 24. To the extent that Paragraph 24 of Defendant's Counter-Claim is not a legal conclusion and requires a response, the same is denied and, if relevant, strict proof thereof is demanded at trial. WHEREFORE, Plaintiff request that damages be awarded as set forth in Plaintiff's Complaint and that Defendant's Counter-Claims be dismissed. Respectfully submitted, NICHOLAS & FOREMAN, P.C. t~ruce D. l~'o'~man, ~tsqlOe~-" Atty ID No. 21193 4409 North Front Street Harrisburg, PA 17110 717-236-9391 Attorneys for Defendants Dated: 4 VERIFICATION I verify that the statements made in foregoing Complaint are tree and correct to the best of my knowledge. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. Northern Construction Associates B r · Dated: /-iV~{c~hae 11~. 'G~ar m~/~ By:_ Harry L. Grossman COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL E. GARMAN and HARRY L. GROSSMAN, wading and doing business as NORTHERN CONSTRUCTION ASSOCIATES OF PENNSYLVANIA, a partnership Plaintiffs VS. ESTHER HUMPHREY, LISA HATHCOX and ELLA JEAN NICHOLS, jointly and severally, Defendants Civil Term No. 01-7008 Civil Action - Law CERTIFICATE OF SERVICE I, Brace D. Foreman, Esquire, do hereby certify that on this, the~'~URiay of January 2002, I served a true and correct copy of the Plaintiff's Answer to New Matter and Counter-Claims, by first class, postage paid mail: Stephen B. Lipson, Esquire 61 W. Louther Street Carlisle, PA 17013 NICHOLAS & FOREMAN, P.C. Bmce~D. Foreman, Esquire Atty. ID #21193 4409 North Front Street Harrisburg, PA 17110-1709 (717) 236-9391 Attorneys for Plaintiff MICHAEL E. GARMAN and HARRY L. GROSSMAN, trading and Doing business as NORTHERN CONSTRUCTION ASSOCIATES OF PENNSYLVANIA, a Partnership, Plaintiffs VS. ESTHER HUMPREY, LISA HATHCOX And ELLA JEAN NICHOLS, jointly and Severally, Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY, pENNSYLVANIA No. 01-7008 Civil Action - Law PRAECIPE TO THE PROTHONOTARY: On behalf of the Plaintiffs and Defendants, please withdraw the above-captioned claim and counterclaims and mark the case settled, ~ and withdrawn, with prejudice, against both Plaintiffs and Defendants. Michael E. Garman and Harry L. Grossman Tdfd/b/a Npenn~l~h~n~a, ~;:ntSTrC, f~AeS;°ciates B .'~m~ce D.~//~ore~ 4409 North Front Street Harrisburg, PA 171.10-1709 ESTHER HUMPPd~Y, LISA HATHCOX And ELLA JEAN NICHOLS, jointly and severally, by their attorney