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HomeMy WebLinkAbout01-0594Stephen D. Tiley, Esquire Supreme Court #32318 Frey & Tiley Attorneys for Plaintiff 5 South Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5838 WILLIAM J. WIRL, JR., t/d/b/a WIRL BUILDERS vs. ~ JOHN D. FRITZ, and JANICE L. FRITZ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001- CIVIL TERM IN ASSUMPSIT NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in wdting with the court your defenses or objections to the claims set forth against you. You are wamed 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 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 1-800-990-9108 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any headng or business before the court. You must attend the scheduled conference or headng. Stephen D. Tiley, Esquire Supreme Court #32318 Frey & Tiley Attorneys for Plaintiff 5 South Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5838 WILLIAM J. WIRL, JR., tJd/b/a WlRL BUILDERS vs. ~ JOHN D. FRITZ, and JANICE L. FRI'I-Z IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001- ~-¢~' CIVIL TERM IN ASSUMPSIT COMPLAINT AND NOW comes William J. Wirl, t/d/b/a Wirl Builders, by and through his attorney, Stephen D. Tiley, Esquire, and files this Complaint of which the following is a statement: 1. The Plaintiff is William J. Wirl, an adult individual t/d/b/a Wirl Builders, a sole proprietorship, of 855 York Road, Carlisle, Pennsylvania, 17013. 2. The Defendants are John D. Fritz and Janice L. Fritz, husband and wife, adult individuals of 109 Hope Drive, Boiling Springs, Pennsylvania 17007. 3. On or about May 25, 1999 the Defendants purchased Lot No. 24 in the Indian Hills development of South Middleton Township, Cumberland County, Pennsylvania by deed recorded in Cumberland County Deed Book 200, Page 134, which deed is incorporated herein by reference thereto. The said lot is now known as 109 Hope Drive, Boiling Springs, Pennsylvania 17007. 4. The Defendants desired to build a residence on their lot and had discussions with the Plaintiff to build a house for them. 5. On or about May 26, 1999 the Plaintiff and Defendants entered into a written Construction Agreement, a copy of which, together with the specifications portion of its Exhibit "A" and and together with the draw schedule which was its Exhibit "B," is attached hereto, marked Exhibit "A," and is incorporated herein by reference thereto as if fully set forth herein. 6. The Construction Agreement was drafted by the Defendants, or one of the Defendants, after having received a proposed contract form from the Plaintiff. The specifications and draw schedule were drafted by the Plaintiff. 7. Certain changes and additions to the work to be performed were agreed to and memorialized in a letter from Plaintiff to defendants dated September 8, 1999, a copy of which is attached hereto as Exhibit "B" and is incorporated herein by reference thereto as if fully set forth herein. 8. All of the additions mentioned in Exhibit "B" were added to the contract and performed except the last two items, to wit: the installation of crown molding in the living room/dining room for a price of $600.00, and the installation of 42" instead of 30" wall cabinets at an unestimated price. 9. The original contract price was $190,950.00. The additions added $14,345.00 to the contract price. The total contract price was, therefore, $205,295.00. 10. Plaintiff completed the house but Defendants have withheld payment of the final $5,000.00 of the contract price. 11. Defendants have alleged that certain items of the work were not performed correctly but either this is not the case or the alleged defects are extremely minor, and usual and customary "punch list" items, which Plaintiff has offered to complete but Defendants have not agreed to allow him to do. See copy of letter from Stephen D. Tiley, counsel for Plaintiff, to Defendants, dated July 12, 2000, attached hereto as Exhibit "C," and incorporated herein by reference thereto as if fully set forth herein. Plaintiff has never received a wdtten response to this letter. 12. Plaintiff has demanded payment of the remaining $5,000.00 due him, but Defendants have refused. WHEREFORE, Plaintiff prays Your Honorable Court for judgment in his favor and against the Defendants for $5,000.00, plus costs. Reso~e, ctfuJly Submitted, ~'~eph"en D. Tiley, Esquire Supreme Court #32318 Frey & Tiley Attorneys for Plaintiff 5 South Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5838 VERIFICATION I veri~ that I am the Plaintiff in the above matter and that the facts set forth in the foregoing Complaint are true and correct based partly upon personal knowledge and the remainder upon information and belief. understand that this Verification is made subject to the penalties of 18 Pa. C. S. A. § 4904 relating to unsworn falsification to authorities. Dated: January 26, 2001 VERIFICATION I verify that I am the Plaintiff in the above matter and that the facts set forth in the foregoing Complaint are true and correct based partly upon personal knowledge and the remainder upon information and belief. I understand that this Verification is made subject to the penalties of 18 Pa. C. S. A. § 4904 relating to unsworn falsification to authorities. Dated: January 26, 2001 r.~ ~._,~ ~"~j' Wt~a m/J .~i r ,~J r.~' / ¢'~'"'~'I CONSTRUCTION AGREEMENT Page 1 of 5 BETWEEN William J. Wirl, t/dlb/a WIRL BUILDERS 855 York Road Carlisle PA 17013 13,0. ~0 258-3435 \~ 05~\'~ f'''~ 0 AND John D. and Janice L. Fritz 35 Greenfield Circle Carlisle PA 17013 245-0277 THIS AGREEMENT entered into this 2~5h Clay of May;'i999, by and between William J. Wkl, t/d/bla WIRL BUIkDERS of 855 York Road, Carlisle PA, hereinafter called "CONTRACTOR" and John D. and Janice L. Fritz, of 35 Greenfield Drive, Carlisle, PA, hereinafter, whether one or more, called "OWNER". WlTNESSETH that the CONTRACTOR and OWNER for the considerations hereinafter stated covenant and agree as follows: 1. CONTRACTOR shall erect, on OWNERS land to be purchased in the Indian Hills development in South Middletown Township, Cumberland County, Pennsylvania, a two story dwelling, with basement, in accordance with specifications and drawings attached hereto and incorporated herein by reference thereto, same being marked as "Exhibit A." CONTRACTOR shall, under the direction and to the satisfaction of OWNER, furnish all services, materials, labor, tools, equipment, machinery, and everything necessary to undertake and complete in a thoroughly first-class workmanlike manner all of the work indicated in the drawings, specifications and general conditions, and all amendments, addenda, schedules and exhibits attached hereto. 2. As legal consideration for said construction, OWNER agrees to pay CONTRACTOR the sum of One Hundred Ninety Thousand Nine Hundred Fifty Dollars [$190,950.00] according to the draw schedule attached hereto and incorporated herein by reference thereto, same being marked as "Exhibit B" [said price excluding, only, the actual excavation costs incurred in preparing the site for the construction of the footer and basement portion of the structure, '~vhich actual costs shall be paid by OWNER]. 3. This Agreement shall be governed by the allowances for specific expenses as provided in "Exhibit A" attached hereto and incorporated herein by reference thereto. No substitute materials or equipment shall be utilized, installed, or substituted without the written permission of OWNER. Notwithstanding anything in this Agreement to the contrary, progress payments may be withheld by OWNER iff I] Work is found defective or is not in accordance with the contract documents and remains unremedied; 2] CONTRACTOR has not made prompt and proper payments to subcontractors. 3] CONTRACTOR has not made prompt and proper payments for labor, materials, equipment, or other goods or services famished to him; Page 2 of 5 4] Another contractor or subcontractor is damaged by an act for which CONTRACTOR or any of its agents is responsible. 5] Any claim or liens are filed on the project, or there exists reasonable evidence that such claim or lien will be flied. 6] There exists reasonable doubt at any given time that this contract can be completed for the total amount of th t pti th n unpaid ' e contrac ce e . ,-~. ~ -, · 7] CONTRACTOR has failed to uphold any other provisions of this Contract and such failure remains unremedied : ~:~,., ~ ~ ,: The CONTRACTOR shall, be considered an independent~contractor with respect to that part of the work in said erection and construction which he has undertaken to do and perform, and he shall be answerable only for loss or damage caused by the CONTRACTOR or his subcontractors, agents, or employees, and agrees to fully indemnify, protect and save harmless the OWNER from loss, damage, or expense as to all claims or liabilities resulting from the accident, negligence, or from other cause by himself, subcontractors, agents, or employees. Construction shall be commenced upon signing of this contract, presentation of all necessary building permits, UNLESS PREVENTED BY ACTS, OF God, Civil Authority, War or :Insurrection, weather conditions, or other factors beyond any reasonable control of the CONTRACTOR, all construction to be completed within six (6) months from the date of commencement (groundbreaking) of the construction. CONTRACTOR shall warrant that portion of the work done by himself and his subcontractors, agents, and employees for a period of one (I) year from the completion of the home,.provided, however, that nothing herein shatl limit the manufactures warranties pertaining to appliances, equipment and materials used in construction, some of which may offer extended warranties or are warranted for more~than one (1) year. CONTRACTOR shall do whatever is necessary to assure that the work conforms to the requirements of the construction contract during the progress of the work, and to remedy any defects due to faulty materials and workmanship promptly upon request of the OWNER. Cosmetic cracks in concrete or in blocks, which· cracks do not affect:the structural integrity of the building, are understood by the OWNER to be normal and to not constitute defects.in material or workmanship: OWNER shall carry fire and casualty insurance for the full value of the contract price. Said policy shall be no less than a broad form dwelling or homeowner's policy. CONTRACTOR. shall secure public liability insurance and bodily injury coverage in the amount of $300,000\ $300,000 and property damage in the amount at least equal to the full value of this contract CONTRACTOR shall provide evidence of coverage at the signing of this contract; OWNER shall provide evidence of coverage within five days of the structure becoming insurable. OWNER agrees to pay for electric service commencing with energizing by the electric utility until completion of the construction. CONTRACTOR will provide and pay for any temporary electric service required or utilized prior to installation of the electric meter on the dwelling by the electric utility. CONTRACTOR. shall permit and facilitate inspection of the work by oWNER and/or their agents and public authorities at all times. CONTRACTOR, before commencing the work, shall be qualified under the Workman's Compensation Laws of Pennsylvania and shall at all times comply with the provisions of said law. Page 3 of 5 Fitle to all work completed and to all materials which are intended to be incorporated in the work and which are delivered and stored at the site in the course of construction, shall be solely and exclusively vested in the OWNER. This article shall govern the passing of title of all work and materials affected thereby, notwithstanding any other provision in this Contract. CONTRACTOR hereby waives and releases its right to file any lien against any part of or the entire work or against any part of or the entire site. CONTRACTOR shall herewith execute a Mechanic's Lien Waiver form acceptable to OWNER. FAILURE TO EXECUTE A MECHANIC'S LIEN WAIVER WILL RENDER TH~ CONTRACT NULL AND VOID. In the case of allowances provided in "Exhibit A",ia credit will be given to OWNER for any amounts less than the amount set forth as an allowance and OWNER will be charged f~r any amounts greater than the allowances set forth therein. Documentation will be provided by builder upon request: This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania. Any suit hereunder shall be tried in the Court of Common Pleas of the Judicial District in which the parties hereto reside at the time of the signing of this contract. If any term, condition, clause or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause or ~rovision shall be stricken from this Agreement and in all other respects this Agreement shall be valid and continue in full force, effect and operation. Likewise, the failure of any party to meet their obligations under any one or more of the paragraphs herein, with the exception of the satisfaction of the conditions precedent, shall in no way avoid or alter the remaining obligations of the parties. CONTRACTOR understands that OWNER requires construction of the structure to be such that the basement will have an area clear of all support posts, pipes, duets or other obstructions, which area shall be a minimum of thirty (30) feet by sixteen (16) feet ~it~h 9 minim~!m clear ceiling height of eight foot six inches (8' 6") exclusive of ducts, beams, piping or any~other obstruction. This area shall have the thirty (30) foot measurement parallel to the side walls of the house and this area shall be located to the right side of the stairwell viewed from the perspective of standing at the front of the house. This requirement is based upon OWNER'S intention to construct a special room within this thirty (30) foot by sixteen (16) foot space with specific acoustical properties and other attributes which constitute an unique use such that the placement of any support posts or other obstructions within this area shall constitute a complete breach of this Agreement. CONTRACTOR further warrants that CONTRACTOR has obtained qualified licensed engineering or architectural design for the construction of this structure and said structure is properly designed so that the requirement for a space clear of support posts and other obstructions does not affect the structural integrity or functionality of the building. CONTRACTOR shall frame, with wood members, this area such that all rough carpentry work is complete. This Agreement shall remain in full force and effect unless and until terminated under and pursuant to the terms of this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall in no way affect the right of such party hereafter to, enforce the same, no shall the waiver of any breach of any Provision hereof be construed as a waiver of any subsequent default of the same or similar nature, nor shall it be construed as a waiver of strict performance of any other obligations hereir/. This Agreement constitutes the entire understanding of the parties and supersedes any and all prior agreements and negotiations between them. There are no representations or warranties other than those expressly set forth herein. Page 4 of 5 No modification or waiver of any of the terms hereof shall be valid unless in writing and signed by both parties an( no waiver of any breach hereof or default hereunder shall be deemed a waiver of any subsequent default of the sam~ or similar nature. This Agreement shall be binding on all parties hereto, their heirs or executors. All terms, provisions, covenants and agreements herein contained shall extend to and be obligatory on the successors and assigns of CONTRACTOR and OWNER, but CONTRACTOR shall not assign this CONTRACT or any of the payments to become due hereunder nor delegate any duties except with the written consent of OWNER. IN WITNESS WI-IEREOF, the parties hereto, having read and understood the conditions set forth in this Agreement and intending to be legally bound hereby, have hereunto set their hands and seals the day and year first above written. Wil~. i~rl ff~i~ BUi~L E~ [Seal] ea ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA: : SS, COUNTY OF CUMBERLAND : On this, the 26th day of May, 1999, before me, the undersigned officer, personally appeared John D. Fritz and Janiee L. Fritz, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and acknowledged that they executed the same for the purposes therein contained. 1N WITNESS WHEREOF, I hereunto set my hand and official seal. I Notarial Ual Middlesex My Commission ~x~res Aug. Page 5 of $ COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS. On this, the 26~ day of May, 1999, before me, the undersigned officer, personally appeared William J. Wirl t/d/b/a WIRL BLTILDERS, known to me (or satisfactorily proven) to be the persons whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. M ddlesex Twp., - Wirl Builders May I1, 1999 Custom Homes 258-3435 Two story dwelling: 1st floor - 1210sq.ft., 2nd fir 1210 sq.ft. with attached garage. Foundation: Excavation allowance, $9,500.00, to include all earth movement, hilift, backhoe, blasting, rebar, fill (stone, slate), footers to be 3500 psi poured concrete, stone base to include radon reduction and exterior and interior footer drains. Walls to be 8" poured concrete, 9' height. Steel 'I' beam to be 10" height (~ 33 lbs/ft,, to sustain 18' span. Block foundation for garage and porches(front/back). Precast concrete stairwell w/bilco doors w/hinged steel door at the stairwell base. Sump hole with pump Dampproofing - Deco foundation seal. Framing: Garage: Insulation:, 2x6 treated sill plates with sill foam installed, TJI25 fir joists, 16" o.c. 3/4"x4x8 T&G advantech underlayment sub-floor glued/nailed 2x6 exterior walls, studs 16" o.c., 2x4 interior walls, 16"o.c. 2x10 headers, I/2" thermax/7/16" waferboard exterior sheeting, tyvek (house wrap) exterior of house 2"x 8" ceiling joist 16" o.c. 2"x 6" rafters 16" o.c. with attic 2x4 knee wall f/support, 7/16" waferboard sheeting on roof, 15 Ih.roof felt applied w/aluminum drip edge, 25 yr. fiberglass architectural shingles roof· Ridge vents installed - standing seam roof on fi-ont porch. Stud wall framing future sound room in basement. Wood blocking on window corners for curtain rods. Treated sill plates, 2"x4" walls 16" on center. 3/0 access door (1) 16'0"x7'0" insulated garage door, prefinished, panel type, no glass. Wails are insulated, drywalled and painted, 5/8 flrecode on house walls. Concrete slab 3.500 psi fibermesh concrete Doors and windglws trimmed. Concrete stoops at the exists of both man (3/0) doors per plan. Floor drain in garage.._ ~. :W~!!.s are 6~' fibergla~.R-¥alue R. 19 w/house wrap. 'Basement ceiling R. 19 ( Basement rec area) · Ced~ngs are b[0wn msul~lon R-Value R.30. Styrofoam vents where.,-aeeded. · · 3-1/2" insulation iia garage .w, ails Super seal walls for air infit~ation. Vinyl soffit and aiummum, fac~a..... 5 K-Gutter. d downspouts~alum,~um).z.: Insulated st&el exterior doors vath dead bolts. Wood/.~luminum clad double-hung (maintan,ace free)insulated windows (low-E) with screens and grilles between the glass. ' Shutters front ,sides and back. Vinyl soffit, vinyl siding choice per alient Front porch per plan, rear porch 12'xl6'slab w/foUn[tation ' Rear garage man door 5' x 6' slab Brick veneer front of house per plan. Dental trim per plan elevation (front only) Exterior painting two (2) coats. Atrium door with GBG (grille between glass) w/french handle. Interior Finish French doors with grille (between lvg nn and fmly rm) 1/2" Drywall taped and sanded w/2 coats of satin paint (ceiling and sidewails offwhite, 1/2" wonderboard underlayment f/ceramic tile. Doors are six-panel colonial Masonite (to be painted) Wire shelving and rods. ' ' ' 3-1/4" colonial casing and 5-1/4" colonial base painted. Chairail in dining room. Oak kitchen cabinets, white vanities, wall cabinets in laundry, (2) medicine cabinets, ceramic installed to wall between splash and wail cabinets allowance $10,~!00.00 installed w/tops, Cultured marble in bathrooms Flooring allowance installed $11,332.00 White pine handrail to basement. Stained handrail to second floor. Appliances - dishwasher, stove, oven (choosen by client), garbage disposal allowance $2400.00 installed. Gas fireplace in living room (marble surround and wood mantle) Electrical and Heating: 200 AIVlP Service to house (underground). 40 gallon gas hot water heater. Light fixture allowance $2600.00 installed (to include recessed lites) Telephone outlets installed (except dngrm), electric/battery smoke alarms (bedrooms and hails) ,outside recepticals (7). 2 Gas hot air system with air conditioning (Carrier) per plan location. Interior outlets per code w/client location Outside lights per client(fit porch, post light, rear spot light) Six (6) basement ceiling lights Plumbing: (3) commodes Am. Std., 60" fiberglass tUb/shoWer (1) main bath, master bath w/42"x72" acrylic garden tub w/faucet and 36" shower. cultured marble vanity tops in baths white/white, oak vanities per plan. Moen faucets for tub and shower chrome/brass (brass only extra). Moen lavatory faucets. Moen kitchen faucet with sprayer. Shower rod for tub installed. Hot and cold pipes are copper. Drain lines are pvc. Chrome/w/brass towel bars and piper holders. Two outside frost proof spigots front and back. Cb_rome/w/brass faucets i ::: ' Basement utility sink in basement. Miscellaneous: Building permits by builder. 3 '0" sidewalks from front porch to driveway. Entire lot seeded Macadam driveway with concrete apron. Sidewalks ins'tailed. Excavation allowance: $9,500.00 Draw Schedule: First draw 25% .......... deck installed Second draw 25% ....... house enclosed w/mechanicai roughins Third draw 25% ......... siding, interior trim, kitchen, vanities ceramic; wood flooring, purgo. " sidewalks, driveway. Forth draw 25% ..... carpet, lawn: ' 3 To~ John and Janice Fritz 109 Hope Drive Boiling Springs, Pa. 241-0277 September 8, 1999 From: Wirl Builders 855 York Road Carlisle, Pa. 17013 258-3435 Additions to contract: Enclose patio - (9) windows 6 ft. rt. w/tempered glass lower Sashes (code), 3/0 15 lite door, cathedral ceiling, insulated wooden deck, (floor covetings not included) $9,650.00 Change garage dimensions to 22'x27', build storage area above garage and insulate entire garage ceil!ng. (2) windows in storage area ( $670.00 f/arched top) upgreaded framing- 2x10 joist, 3/4" decking, 2/6 insulated door into master bedroom, steel beam in garage ceiling $4,170.00 insert small window into master bath shower/comode space $275.00 - interior door added to attic stairwell $250.00 - estimate f/crown molding in livingroom/dng rm $600.00 - price difference between 30" wall cabinets and 42" wall cabinets FREY & TILEY A'I-FORNEYS.AT-LAW ROBERT M. FREY OFCOUNSEL STEPHEN D.T]LEY ROBERT G. FREY TELEPHONE (717) 243-5838 FACSIMILE (717) 243-6441 July 12, 2000 Mr. and Mrs. John D. Fritz 109 Hope Drive Boiling Springs, Pennsylvania 17007 Re: Wirl Builders Dear Mr. and Mrs. Fritz: Shortly after my telephone conversation with Mr. Fritz at the beginning of June I met with Bill Wirl but unfortunately I then allowed this file to sit on my desk without attention until this time. I apologize to you, and again to my client, for this inexcusable delay. Notwithstanding my delay, we must now bring this matter to an amicable resolution within the next few weeks. Even before my delay in communicating with you, far too much time had expired without final payment to Wirl Builders and resolution. I will respond directly to your proposed "Agreement" concerning the additional items you wish completed. Some of the requests are legitimate "punch list" items and will be taken care of by Wirl Builders, some are outside of the scope of Wirl Builders responsibility, but will be done without charge anyway because they are small matters and Bill will try to accommodate you where he can in order to bring this to closure, and some requests are simply outside of Wirl Builders responsibility and will not be done. In any event, any punch list items will be completed by Wirl Builders and you are not authorized to retain any other contractors and charge their expense to the amounts due Wirl Builders. Referencing your paragraph numbers, we respond as follows: 1. We have no objection to the use of your attorney as escrow agent however I cannot locate attorney Bushman in any of my lists of central Pennsylvania Attorneys. Kindly provide his firm address and telephone number. Also, the entire unpaid balance of the contract price, to wit: $5,000, must be deposited into escrow. That entire amount will can be held for the couple or few weeks it will take Wirl Builders to perform the tasks set forth in this letter, and then paid to Wirl Builders. Mr. and Mrs. John D. Fritz Re: Wirl Builders Wednesday, July J2, 2000 Page 2 of 4 Frey & Tiley 2a. Wirl Builders will put "through carpet" screws in where it feels that they are warranted. There are special small head screws made for this purpose. There is no need to move any furniture. 2b. Wirl Builders will install switched outlets in the living room. Should you desire them in the small front bedroom that will be a change order subject to additional cost. .'~ 2c. Wirl Builders will adjust the latches on these doors'. 2d. Wirl Builders will install four concrete splash blocks. 2e. Hairline and other small foundation cracks are common, non-structural items. They are not defective work to be included in a punch list. Interior waterproofing was not a part of the original specifications or agreement, however if you desire Wirl Builders to perform this work they will give you an estimate for a change order. 2f. Wirl Builders will examine the gutter at the rear corner between the garage and the house and if there is a problem with water getting behind the siding it will be fixed. 2g. Wirl Builders will secure the water faucet at the front, left, of porch, if it is loose. 2h. Wirl Builders will tighten railing posts with finishing nails where needed. 2i. Wirl Builders will attempt to accommodate your desire for a changed shower head angle, without additional charge:,. 2j. Bilco doors cannot be guaranteed to be watertight however Wirl Builders will place some caulking around the door which will probably address your concerns. 3. Rejected. All work will be performed in a "first class," good and workmanlike manner. This is the industry standard. Even if we had no experience in trying to accommodate your desires we could not agree to make payment conditioned upon such a standard as you propose which may or may not relate to the the quality of the work or reasonableness. No builder would do this. The work will be performed within 60 days and at that point the escrowed funds will be released to Wirl Builders. Mr. and Mrs. John D. Fritz Re: Wirl Builders Wednesday, July 12, 2000 Page 3 of 4 Frey & Tiley 4. Rejected. Wirl Builders will reseed some bare spots as an accommodation to you. This reseeding is expected to be small in area and a project of less than one hour. Wirl Builders agreed to grade and seed the lot, not provide additional top soil nor rake the soil. 5a. There has been no dispute between Wirl Builders and you concerning ceiling height. This is the first we have learned that there is a "dispute" about ceiling height. You were told that the greatest amount of ceiling height which Wirl Builders could give you was 8' 1" and we believe that this was accompl(shed. We are not entirely sure what you are trying to say or address here, but in any event there is nothing that can be done about ceiling height at this point. 5b. Wirl Builders and I discussed at length the brick work, over which there evidently was a dispute, from your perspective, over whether or not the work was completed properly. As you may know, Wirl Builders went so far as to have a representative of the brick manufacturer inspect the work. The short of this matter, and our position, is that the brick is exactly what you requested and is installed in a first class workmanlike manner. 6. I do not think that either of us wants to waive our rights until the work which we have described above has been done and Wirl Builders has received the final $5,000 payment. At that point, however, I believe that both parties should sign a mutual release. 7. I am not sure that we need a formal amendment to the construction agreement or a supplemental agreement, although we would be happy to enter into one. In either event, we would assume that completion of these punch list items, or any supplemental agreement, would not void the construction agreement or any warranties which may be enforceable thereunder. 8. Wirl Builders will not share in the expense of the escrow. If that is an issue I will hold the funds without charge to you. Please understand that the above is not a negotiating offer, this is what we can do. I have known Bill Wirl personally for many years and I know that he tries very hard to please his customers. He will try again here, as set forth above, but he is at the limit of what he can do. Professional courtesy requires that I communicate directly with your attorney, however I was unable to locate him. Until I am able to communicate with your attorney I will continue to do so with you. (After I am in touch with your attorney I can Re: WirI Builders Wednesday, July 12, 2000 Page 4 of 4 communicate with you directly if he authorizes me to do so.) Of course, I represent the interests of Wirl Builders only. Within that context, please feel free to call or write with any questions or comments you may have, Unfortunately, I am leaving the office today for vacation and will not return until the 19th. However, I will be in regular contact with my office in the event that there is something that needs attention before my return. Sincerely your, s, Stephen D. Tiley SDT/mm cc: Wirl Builders II ' WILLIAM J. WIRL, Jr. t/d/b/a WIRL BUILDERS Plaintiff VS, JOHN D. FRITZ JANICE L. FRITZ Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY : PENNSYLVANIA : NO. 2001 - 594 : IN ASSUMPSIT PRAECIP TO THE PROTHONOTARY: Please enter my appearance in the above captioned matter on behalf of JOHN D. FRITZ and JANICE L. FRITZ, Defendants. February 5, 2001 L. Bushman, Esquire 16767 Path Valley Road P.O. Box 51 Spring Run, PA 17262-0051 ID # 36406 TEL: [717] 349-7657 FAX: [717] 349-2982 SHERIFF'S RETURN - CASE NO: 2001-00594 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WIRL WILLIAM J JR ET AL VS FRITZ JOHN D ET AL REGULAR TREVOR KENT , Cumberland County,Pennsylvania, says, the within COMPLAINT & NOTICE FRITZ JOHN D DEFENDANT , at 0015:40 HOURS, at CUMBERLAND CO. SHERIFFS' DEPT CARLISLE, PA 17013 JOHN D. FRITZ a true and attested copy of COMPLAINT & NOTICE IN ASSUMPSIT Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon the on the 2nd day of February , 2001 1 COURTHOUSE SQUARE by handing to together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.72 Affidavit .00 Surcharge 10.00 .00 31.72 Sworn and Subscribed to before me this [~--- day of So Answers R. Thomas Kline 02/05/2001 FREY & TILEY By: Deputy Sheriff SHERIFF'S RETURN - CASE NO: 2001-00594 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WIRL WILLIAM J JR ET AL VS FRITZ JOHN D ET AL REGULAR JODY SMITH , Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE FRITZ JANICE L DEFENDANT , at CUMBERLAND CO. at 0008:46 HOURS, SHERIFFS' DEPT. CARLISLE, PA 17013 JANICE L. FRITZ a true and attested copy of COMPLAINT & NOTICE IN ASSUMPSIT Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon the on the 5th day of February , 2001 1 COURTHOUSE SQUARE by handing to 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 A.D. , t Prothonotary So Answers: R. Thomas Kline 02/05/2001 FREY & TILEY By: --Dep~y Sheriff vs. ~ No. c:~,O/- ~'"'~"~' Civil.-l~=,-~,~9,~/ Prothonotary Attorney for Plaintiff NO. _ Term, 19 __ VS. Filed PRAECIPE 19 , Atty.