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HomeMy WebLinkAbout04-2854NORMAN MORACE, Plaintiff, V. MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA NO. O y - . 1-5S CIVIL ACTION - LAW JURY TRIAL DEMANDED N O T I C E 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 NORMAN MORACE, Plaintiff, V. MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-2854 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO ATTACH EXHIBITS TO COMPLAINT TO THE PROTHONOTARY: Please attach the enclosed exhibits to the Complaint filed. on June 21, 2004 for the above- referenced matter. SMIIGEL,ANDERSON &SACKS Date: l t J' TPter M. Good, Es#64316 usan M. Zeamer, ID#82023 4431 North Front Street Harrisburg, PA 17110 (717)234-2401 Attorneys for Plaintiff MUSSER & ASSOC TES, INC.. .I */A 245 Fetterville Rd. East Earl, PA 17519 717-354-7561 Fax 717-355-9181 Fsftervllls Sales agrees to asset the structure as specified below: Size of building: 30)((017 Post Size: Inside Ceilpg Haight: 7 S-R?'wS rns% a ac n9 hopes 6r+G, Skirt Board: '1- nn et fl Of?rr is rS 2x Overhangs: Sides: / ,?0 ' {e Gables: ' t k- Roof Type: r(, 160 r0I b60k I color: L+• ,ea_ SldingTyps: Color: U. 6rn)e Trimlype: Color: (?(1t'C W?fif( Roof Insulation: SldewellInsulation: _- Ventilation SkyllgttiUSldelight: Windows Type:5f;&LQty: ?. Size: Yx3 Zns Windows TV":" 1' Oty: Size: Service Door Type: ?=A-_ Oty: I Size: ,6O Service Door Type: -/ Qty: - Size: ,, --?? '?-; Overhead Door Type 4r'N/rl. QW:? Slze:1 ^ Q ?• ??2 Overhead Door TM Oty: Size: Overhead Door Type Qty: Size: Slider Door Size: ...- Oty: Slider Door Size: Oty: All matvlal Is guaranteed to be as specified. All work Is to be completed In a workmanlike manner according to standard practices. Any alter- ation or deviation from the above specifications Involving extra costs will be done only upon a written change order. The costs will become an extra charge over and above the contract prloe.Thls Is to Include any additional work or materials required by local building Inspectors. You, the purchaser, may cancel this contract at any time prior to midnight three days after the date of this contract Cancellation must be done In writing. If cancellation Is made after the three day Buyer's Right to Cancel has expired, you, the customer, become responsible for the coat of any and all non-stock spacial order Items that are In the contract. .customer Information Contract Date: Purchaser: - r r r»/ a rrl G e- / HomeAddress_ I7 5eh-zer (,f• / City: M t G ?? a I ura County: ?& r??, ?r-/?1nnd State: 1 r' Zip: J?"- Home # --ZL7- 732-37 6 Work# Jobsite Address: Jobsite # Customer's Responsibilities of permits and blueprints (if needed) preparation. (proper grading & filling) the building location by staking out building corners Provide access to building site Disposal of excess materials Snow removal (if necessary) Buried electrical, water, gas lines, etc. Fette Ile ac=s no liab'Itty for: ettling of soil in, around, or under building IjJ Property damage due to truck delivery (Ruts in yard or paved area) / SiteInformatiq ® lectricity available witI(fln 200¢ _Yes _No inspections required 7[ S ,J`y! of holes to drill through BI,aJ?7lr top i v Concrete IJQ Grade within 12" _Yes 7No Fill before start?- Yes _No SRCChil Conditions that apply to the above contract, Any and ail requested starting or completion dates are exempt to items beyond company's control, such as: strikes, accidents, weather condi- tions, supplier jelay or r any deviations from original contract Miscellaneous Items: - a X60 , 100r n I Gat el - !r 1-3' C„onto L,,/ QgIr 1 ea4eryara pie STEEL ROOFWG & SIDM BL-32M ! FefterwMe Boyd SALES (717) 354.7"1 FAX (717) 35"181 'Rile Pob Balums So Palo e/e' CHANGE DiM ll?r 3. CnedJ IZx ?.?,?0 4. PRE-ENGAYEERED ROOF TRUSSES 1400401-IM 2" PMhnWe Need Peet led. VA 17519 NAIL n) r? ?r?? YYl r? pace- - ADDBl&S / Sy9 1 9-9-I r e? . j'Y1ed,c?„?csbur ?c, o.SO PBDNE'# ? 3 T - Z ?v ?I IT@S M BE ADDED M QONn= AND OOM T 19 1"s 100JI&O o3cJ1 Co ()4e lea/ kW 4L:-&f?'Q PI f s. =AL m6T (w ADDITma Tt'II'!3: \3 96o. °D CRIMI & COMAM aos'r: s ©o ?? NBA CMUMar CM:. r72 9, aIrf °o l? AMM OF Dffi.IW PAMU: 1 , r)pk? grj II W AM= OF LAM CM: CKD AMERM SAS BY ? SIf?ffiiS i M*TSSES & ASSOCIA?.S, INC, NORMAN MORACE, Plaintiff, V. MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-2854 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Susan M. Zeamer, Esquire, hereby certify that I have served a true and correct copy of a Praecipe to Attach Exhibits to Complaint upon counsel as addressed below by depositing the same in U.S. Mail, first class, postage prepaid, on this 16`h day of July 2004: Melvin H. Hess Gibbel, Kraybill & Hess 41 East Orange Street Lancaster, PA 17602 SMIGEL, ANDERSON & SACKS, LLP Date: July 16, 2004 BK: , Pet M. Good I.D. 64316 Susan M. Zeamer, Ba4uire I.D. #82023 4431 North Front Street Harrisburg, PA 17110-1709 (717) 234-2401 Attorneys for Plaintiff CD C? i? _ C{p - rv C] AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan ma's adelante en las siguientes pdginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despu6s de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacio'n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin ma's aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 NORMAN MORACE, : IN THE COURT OF COMMON PLEAS Plaintiff, . CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 07 ???f MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, CIVIL ACTION - LAW Defendant. JURY TRIAL DEMANDED COMPLAINT NOW COMES, Plaintiff Norman Morace by and through his attorneys Smigel, Anderson & Sacks, L.L.P., and files the within Complaint averring the following: Parties: 1. Plaintiff Norman Morace (hereinafter "Morace") is a Pennsylvania citizen with his residence at 1544 Seltzer Court, Mechanicsburg, Cumberland County, Pennsylvania. Defendant Musser & Associates, hic. t/a Fetterville Sales (hereinafter "Fetterville") is a Pennsylvania Business Corporation with its principal place of business located at 245 Fetterville Road, East Earl, Lancaster County, Pennsylvania. Jurisdiction and Venue: The Court has jurisdiction over the parties and the subject matter of this case. 4. Venue is appropriate in Cumberland County, Pennsylvania pursuant to Pa. R. Civ. P. 2179, as it is where the cause of action arose and/or where transactions or occurrences took place out of which the cause of action arose. Background: 5. On May 29, 2003, Morace entered into a contract (hereinafter "the Contract") with Fetterville for the construction of a thirty foot (30') by sixty foot (60') pole building (hereinafter "Pole Building"), a structure to be used for the storage of a large recreational vehicle ("RV"). A true and correct copy of the Contract is attached hereto and made part of this document as Exhibit "A". 6. Under the Contract, Fetterville agreed to build the Pole Building with an inside ceiling height of fourteen feet (14'). The Pole Building to be erected by Fetterville included thirteen foot (13') high overhead doors. See the Contract. 7. Morace contracted for the Pole Building to be constructed with an inside ceiling height of fourteen feet (14') to allow for the installation of door drivers, or mechanical garage door openers, to operate the heavy, large thirteen foot (13') high overhead doors. 8. The terms of the Contract provided that all materials and work were to be completed as specified. See the Contract. 9. Under the terms of the Contract, Morace was responsible for site preparation, which included excavation, fill, and the pouring of the concrete floor. 10. Morace contracted with a cement contractor recommended by Fetterville and who had previously install floors for Fetterville pole buildings. 11. The site was excavated and the fill or gravel installed in accordance with the instructions given by Fetterville, through its representatives. 12. Afterwards, a six-inch concrete floor was poured, the surface of which was laid to the skirting of the man door and openings already in place in the Pole Building, ensuring that there would be no drop-off from the door to the floor of the building. 13. The Contract price was $25,300.00, which was later amended to $29,260.00, as Morace requested additional material, including R19 Insulation for the ceiling and sidewalls with painted liner panel. The new price and additional material were included in a Change Order form, a true and correct copy of which is attached hereto and made part of this document as Exhibit "B". 14. Morace paid Fetterville $29,260.00 to construct the building as specified in the Contract, which included a $5,000.00 down payment on or about May 29, 2003; a payment of $18,408.00 on or about August 12, 2003; $2,991.00 paid on or about August 21, 2003; and a payment of $2,861.00 on or about October 13, 2003. 15. Contrary to the terms of the Contract, it was discovered that the completed Pole Building included an inside ceiling that was approximately thirteen feet - seven inches (13' 7") high, approximately five (5") lower that the fourteen feet (14') specified in the Contract. Taking into consideration the arched curve of the thirteen (13') high overhead doors, it is difficult, if not impossible, to have door drivers installed to operate the doors. 16. Contrary to the terms of the Contract, Fetterville improperly installed the torsion springs for the thirteen (13') high overhead doors so that the wires that raise and lower the thirteen (13') high overhead doors wrap around each other, causing the wire to fray and eventually sever. 17. Although Fetterville made two (2) attempts to repair the torsion spring problem, the problem has not been repaired and Fetterville refuses to attempt any further repair and/or to replace the torsion springs, despite repeated demands. 18. As the inside ceiling height was not completed as specified under the terms of the Contract, making it impossible for Morace to install door drivers to operate the heavy, large thirteen foot (13') overhead doors, and the torsion springs were improperly installed, Morace will have to remove the Pole Building and construct a new building with the desired specifications and proper installation 19. As a direct consequence of the breach of the Contract by Fetterville, Morace is entitled to recover monetary damages in excess of $50,000.00 in order to remove the structure built by Fetterville and to build a thirty foot (30') by sixty foot (60') pole building with an inside ceiling height of fourteen feet (14') and properly installed torsion springs. COUNT1 BREACH OF CONTRACT 20. The averments contained in paragraphs 1 through 19, are hereby incorporated by reference as if fully stated herein. 21. Fetterville agreed and contracted to construct a thirty foot (30') by sixty foot (60') pole building with an inside ceiling height of fourteen feet (14'). See the Contract. 22. Morace agreed and contracted to pay $29,260.00 for the construction of the Pole Building to the specifications expressly stated in the Contract. 23. Morace has abided by all the terms and conditions of the Contract, including site preparation and full payment of $29,260.00. 24. Fetterville has materially breached the terms of the Contract by: (a) Failing to complete all work and provide for all materials as specified in the Contract; (b) Constructing the Pole Building with an inside ceiling height of 4 approximately thirteen feet-five inches (13' 7") rather than the inside ceiling height of fourteen feet (14') specified in the Contract; and (c) Failing to properly install the torsion springs in a workmanlike manner as specified in the Contract. 25. As a direct result of Fetterville's breach, Morace has not received the benefit of his bargain and will suffer damages in excess of $50,000.00 for removal of the structure installed by Fetterville, break up and removal of the present concrete, and the construction of a new thirty foot (30') by sixty foot (60') pole building with an inside ceiling height of fourteen feet (14') with properly installed torsion springs. WHEREFORE, Plaintiff Morace demands judgment be entered in his favor and against Musser & Associates, Inc. t/a Fetterville Sales as follows: (1) Declaring that Fetterville is in breach under the terms of the contract; and, (2) Awarding monetary and compensatory damages for the building of a new structure, together with costs and fees, and interest said amount being presently in excess of $50,000, and this county's mandatory arbitration limits. Date; Alky?p ,? i 1dc?4 SMIGEL, v? I Gc tterM6,316 & SACKS, LLP Susan M. Zealne , squire I.D. #82023 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorney for Plaintiff VERIFICATION I, Norman Morace, verify that the statements contained in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unworn falsification to authorities. Date: 4-1 -7 ? -04 Norman Morace r p? _. . u ? G? r ? ?, ?, ? a ? ? r ?l? NORMAN MORACE, Plaintiff, V. MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. `> 41 - D 8j q CIVIL ACTION - LAW JURY TRIAL DEMANDED ACCEPTANCE OF SERVICE 1. Melvin Hess, Esquire of the l-aw firm of Gibbel, Kr-)yz?ill & Hess, hereby accept service of the Plaintiff's Complaint in the above-captioned matter on behalf of the Defendant Musser & Associates, Inc., t/a Fetterville Sales and certify herein that I am duly authorized to do so. Dater o` b Melv I*ss, Esquire Gibbe Kraybill & Hess 41 Eas Orange Street Lancaster, PA 17602 (717) 291-1700 n u Q (- r 'fi T-1 I jBio CI-04-2854 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NORMAN MORACE, Plaintiff VS. No.: CI--04-2854 MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant PRELIMINARY OBJECTIONS OF DEFENDANT MUSSER & ASSOCIATES INC t/a FETTERVILLE SALES Your Honorable court should sustain Defendant Musser & Associates, Inc., t/a Fetterville Sales' ("Fetterville Sales") objections and strike the Complaint because Plaintiff has failed to attach a copy of the document upon which they rely as the purported contract. In support thereof, Defendant provides: 1. This action involves a breach of contract claim for the sale and construction of a pole building. See Complaint at 115-19. 2. The Complaint makes the following pertinent allegations: a. On May 29, 2003, Plaintiff entered into a contract with Fetterville Sales for the construction of a pole building for the storage of a large recreational vehicle. See Complaint at 15. b. The building was to have a ceiling height of fourteen (14) feet. See Complaint at 16. C. Under the contract, the Plaintiff was responsible for site preparation, which included the excavation, fill and pouring of the building's concrete floor. See Complaint at 19-12. CI-04-2854 d. The completed building has an inside ceiling height of thirteen (13) feet, seven (7) inches and there is a torsion spring problem. Sere Complaint at ¶ 15, 16 and 17. e. Due to the lower height, the Plaintiff might be unable to install a door driver or mechanical garage door openers. See Complaint at 115. f Plaintiff has demanded the rescission of the contract and damages for the construction of a new building and the removal of the current structure. See Complaint at 125. g. As a result, Plaintiff set forth a count based upon Breach of Contract. See Complaint at T¶ 20-25. 3. Based on the facts and legal conclusions stated in Plaintiffs complaint, the following preliminary objection is being filed due to the legal insufficiency in the pleadings. 4. Accordingly, Defendant Fetterville Sales objects to the Plaintiffs Complaint as follows: PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE COUNT I BREACH OF CONTRACTYS FAILURE TO CONFORM TO LAW OR RULE OF COURT 5. Paragraphs 1 through paragraph 4 of the instant Preliminary Objections are incorporated herein by reference as though set forth at length. 6. Rule 1019 of the Pennsylvania Rules of Civil Procedure provides the following in pertinent part: "(i) When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing." Pa.R.C.P. 1019(i). 2 CI-04-2854 7. Count I of the Complaint is legally insufficient because Plaintiff failed to attach a copy of the document upon which they rely as the purported contract. Although Paragraph 5 of the Complaint states the writing is attached as an exhibit, the Complaint served upon the Defendant did not contain this purported agreement. 8. In addressing a violation of Rule IoI9(i), the Commonwealth Court has stated: "a complaint should be stricken for the failure to attach an essential document." Adamo v. Cini, 656 A.2d 576, 579 (Pa.Cmwlth. 1995). 9. Accordingly, Counts I of the Complaint is legally insufficient and must be stricken for failing to conform to a rule of law. WHEREFORE, Defendant Fetterville Sales respectfully requests the Court to sustain its preliminary objections in the nature of motion to strike and dismiss Count I of the Complaint. Respectfully submitted, GIBBEL, KRAYBILL & HESS By: lwak?? Meld H. H ss Timo y E. Shawaryn Attorneys for Plaintiff 41 East Orange Street Lancaster, PA 17602 (717)2.91-1700 Sup. Ct. Atty. ID. #23225 Sup. Ct. Atty. ID. #87838 3 CI-04-2854 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this 13 day of Jul, 2004, served the foregoing document upon the person(s) and in the manner indicated below. Service by first class mail, addressed as follows: Susan M. Zeamer, Esquire Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center, 3`a Floor 4431 North Front Street Harrisburg, PA 17110-1778 GIBBEL, KF:AYBILL & HESS By: J K,? L MMelvm R. He Timothy E. Shawaryn Attorneys for Plaintiff 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Sup. Cit. Atty. ID. #23225 Sup. Ct. Atty. ID. #87838 c? O r, Fn T -00 i 0rL) - rl 9 - ' ?' ' N CI-04-2854 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NORMAN MORALE, Plaintiff VS. No.: CI-04-2854 MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant PRAECIPE Kindly withdraw Defendant's Preliminary Objections filed on July 14, 2004 with regard to the above-captioned matter. Respectfully submitted, GIBBEL, KRAYBILL & HESS By: "01 Melvin . Hes Timothy E. Shawaryn Attorney for Defendant 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Sup. Cf. Arty. I.D. #23225 Sup. Cf. Atty. I.D. 487838 s. ? - ?-. l/?1 ?_ a -r-- r 0 ??. ?:_ ?? r? P IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NMORALE, Plaintiff s. No.: CI-04-2854 USSER & ASSOCIATES, INC.,1/a FETTERVILLE SALES, Defendant NOTICE TO PLEAD To: Norman Morace c/o Peter M. Good, Esq. and Susan M. Zeamer, Esq. Smigel, Anderson & Sacks, L.L.P. 4431 North Front Street Harrisburg, PA 17110 You are hereby notified to file a written response; to the enclosed New Matter within twenty (20) days of the date of service hereof or a judgment may be entered against you. GIBBEL, KRAYBILL & HESS By:_ e07) C Melva H. H s Timothy E. Shawaryn Attorneys for Defendant 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Sup. Ct. Atty. I.D. # 23225 Sup. Ct. Atty. I.D. #87838 I CI-04-2854 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NORMAN MORACE, Plaintiff VS. No.: CI-04-2854 MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant DEFENDANT MUSSER & ASSOCIATES INC. t/a FETTERVILLE SALES' ANSWER AND NEW MATTER Parties: 1. Admitted to the best of Defendant's belief. 2. Admitted. Jurisdiction and Venue: 3. Denied. The allegations contained in Paragraph 3 are conclusions of law to which no responsive pleading is required. 4. Denied. The allegations contained in Paragraph 4 are conclusions of law to which no responsive pleading is required. Background: 5. Denied. No response is required in that the content of the document marked as Exhibit "A" to Plaintiff's Complaint is a writing and speaks for itself. 6. Denied. No response is required in that the content of the document marked as Exhibit "A" to Plaintiff's Complaint is a writing and speaks for itself. 7. Denied. To the contrary, the inside ceiling height of fourteen (14) feet was agreed upon in order to comply with East Pennsboro Township regulations and 2 CI-04-2854 restrictions on the height of accessory buildings. It is also specifically denied that the overhead doors are heavy and the installation of a mechanical garage door opener was a condition or tern of the contract. Otherwise denied in that the contract speaks for itself. 8. Denied. No response is required in that the content of the document marked as Exhibit "A" to Plaintiff's Complaint is a writing; and speaks for itself. 9. Denied. No response is required in that the content of the document marked as Exhibit "A" to Plaintiff's Complaint is a writing and speaks for itself. 10. Admitted. 11. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in Paragraph 11. Accordingly, these averments are denied and strict proof thereof is demanded at the time of trial. By way of further response, kindly refer to the New Matter set forth below. 12. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in Paragraph 12. Accordingly, these averments are denied and strict proof thereof is demanded at the time of trial. By way of further response, kindly refer to the New Matter set forth below. 13. Denied. No response is required in that the content of the document marked as Exhibit "B" to Plaintiff s Complaint is a writing and speaks for itself. 14. Admitted. 15. Denied. The averments of Paragraph 15 are conclusions of law to which no responsive pleading is required. By way of further response, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in Paragraph 15. Accordingly, these averments are 3 CI-04-2854 denied and strict proof thereof is demanded at the time of trial. Moreover, kindly refer to the New Matter set forth below. 16. Denied. The averments of Paragraph 16 are conclusions of law to which no responsive pleading is required. By way of further response, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in Paragraph 16. Accordingly, these averments are denied and strict proof thereof is demanded at the time of trial. Moreover, the Defendant specifically denies there are any problems with the steel cable or that the torsion springs were improperly installed. 17. Denied. It is specifically denied that the Defendant has attempted to repair the torsion spring problem on two occasions. 18. Denied. The averments of Paragraph 18 are conclusions of law to which no responsive pleading is required. By way of further response, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in Paragraph 18. Accordingly, these averments are denied and strict proof thereof is demanded at the time of trial. Moreover, kindly refer to the New Matter set forth below. 19. Denied. The averments of Paragraph 19 are conclusions of law to which no responsive pleading is required. COUNTI BREACH OF CONTRACT 20. Defendant incorporate by reference as if set forth more fully herein its answers to Paragraphs 1 through 19 of Plaintiffs Complaint. 4 CI-04-2854 21. Denied. The averments of Paragraph 21 are conclusions of law to which no responsive pleading is required. By way of further answer, no response is required in that the content of the document marked as Exhibit "A" to Plaintiff's Complaint is a writing and speaks for itself. Moreover, kindly refer to the New Matter set forth below. 22. Denied. The averments of Paragraph 22 are conclusions of law to which no responsive pleading is required. By way of further answer, no response is required in that the content of the document marked as Exhibit "A" to Plaintiff's Complaint is a writing and speaks for itself. Moreover, kindly refer to the New Matter set forth below. 23. Denied. The averments of Paragraph 23 are conclusions of law to which no responsive pleading is required. By way of further answer, kindly refer to the New Matter set forth below. 24. The allegations contained in Paragraph 24 are conclusions of law to which no responsive pleading is required. To the extent that a response is required, it is specifically denied that the Defendant breached the contract's requirements and strict proof thereof is demanded at the time of trial. By way of additional response, kindly refer to the New Matter set forth below. a. Defendant expressly denies that it failed to complete the work and provided the materials required by the contract. Rather, the Defendant fully complied with the contract. b. Defendant expressly denies that it is responsible for the current height of the building. Rather, a building with an inside ceiling height of fourteen (14) feet was provided by the Defendant. 5 CI-04-2854 c. Defendant expressly denies that the torsion springs were improperly installed. 25. The allegations contained in Paragraph 25 are conclusions of law to which no responsive pleading is required. To the extent that a response is required, it is specifically denied the Plaintiff is entitled to the relief requested. By way of additional response, kindly refer to the New Matter set forth below. WHEREFORE, Defendant Musser & Associates, Inc. t/a Fetterville Sales respectfully requests Plaintiff's Complaint be dismissed and judgment be entered in his favor and against Plaintiff. NEW MATTER 26. The responses to Paragraphs 1 through 25 are incorporated herein by reference as though fully set forth. 27. Plaintiff's claims may be barred, in whole or in part, by the applicable statute of limitations, the doctrine estoppel and laches. 28. Plaintiff's claims are barred, in whole or in part, by the Plaintiff's failure to mitigate damages. 29. Plaintiff's claims are barred, in whole or in part, by the doctrines of unclean hands and waiver. 30. Plaintiffs claims are barred by the doctrines of accord and satisfaction. 31. Plaintiff's claims are barred, in whole or in part, by the doctrine of novation. 32. Plaintiff's claims are barred, in whole or in part, by Plaintiff's failure to comply with a condition concurrent to Defendant's duty to complete the job. 6 CI-04-2854 33. Plaintiff has failed to state a claim upon which relief can be granted against Defendant Musser & Associates, Inc. t/a Fetterville Sales. 34. Plaintiff's damages, in whole or in part, are due to, or result from the actions and/or inactions of the Plaintiff and the other parties. 35. The claims asserted by Plaintiff are barred to the extent that the damages and/or losses allegedly sustained by the Plaintiff were caused by parties over whom Defendant had no control and is not responsible. 36. The installation of a mechanical garage door opener was not a requirement of the parties' contract. 37. When the Defendant had finished framing tie building, the ceiling height was fourteen (14) feet. 38. By pouring the concrete floor, which was not a part of the contract, the Plaintiff unilaterally reduced the height of the ceiling in the building. 39. Plaintiff was informed by the Defendant that to maintain the fourteen (14) foot ceiling height, the installation of the concrete floor would have to be placed below the building's base. 40. Even if the Plaintiff desired to have a fourteen (14) foot ceiling after the pouring of a concrete floor inside the building (and not underneath the building's base as recommended by the Defendant), Plaintiff discovered the East Pennsboro Township's restriction on the height of an accessory buildings would have precluded the building from being raised any higher to accommodate the Plaintiff's request; an issue the Defendant reasonably relied upon the Plaintiff to resolve. 7 CI-04-2854 41. Based upon the contract, Plaintiff was responsible for the site, governmental permits and the structure's compliance with the applicable government regulations and restrictions. 42. Based upon the contract, Defendant was to deliver to the Plaintiff the building, i.e. sides, trim and roof. The floor of the building was solely at the discretion of the Plaintiff, as to the type of floor and the installation thereof. 43. Based upon the contract and the discussions between the parties, Plaintiff was aware Defendant had no responsibility regarding the floor, the type of floor, the thickness/depth thereof and its impact on the functional internal height (from floor to ceiling). 44. Plaintiff miscalculated the depth of the floor and despite the fact that it was solely his error (as it was his responsibility), he now unlawfully seeks remediation (or the cost thereof) from the Defendant. WHEREFORE, Defendant Musser & Associates, hic. t/a Fetterville Sales respectfully request Plaintiff's Complaint be dismissed and judgment be entered in its favor and against Plaintiff together with costs and fees appropriate under the circumstances. GIBBEL, KRAYBILL & HESS By: Me in . 11Hess Timothy E. Shawaryn Attorneys for Defendant 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Sup. Ct. Atty. I.D. # 23225 Sup. Ct. Atty. I.D. #87838 CI-04-2854 VFRtb'1CAT10N I vctify that the statements made in the foregoing document are true acid correct. I uadcMtand that false statements heroin arc made subjcctto the penalties of 18 Pa.C,S.A. Section 4704, relating to unswom falsification to authorities. 1 4G+?' '? ZCXt? Date: _ 4 MUSSER. & ASSOCIA TES, INC, t/a FETrIR`?bIt SALES (+ /// Randy Mosser, General Manager CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this 4 day of A, 7. , 2004, served the foregoing document upon the person(s) and in the manner indicated below. Service by first class mail, addressed as follows: Susan M. Zeamer, Esquire Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center, 3`a Floor 4431 North Front Street Harrisburg, PA 17110-1778 GIBBEL, KRAYBILL & HESS By: Mely H. s Timothy E. Shawaryn Attorneys for Plaintiff 41 East Orange Street Lancaster, PA 17602 (7117) 291-1700 Sup. Ct. Atty. ID. #23225 Sup. Ct. Atty. ID. #87838 CI-04-2854 ?? N ?._ ?.,? S? ..?.1 _ •.-1 ??- T 1-. 7 Ill ?'_ ,? l -t.f_1 1 C? .? J 1 ,i ?? `' ` j 'inn fJ ., , :=? -^ Zl i ?{ CI-04-2854 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day of 2004, served the foregoing document upon the person(s) and in the manner indicated below. Service by first class mail, addressed as follows: Susan M. Zeamer, Esquire Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center, 3`a Floor 4431 North Front Street Harrisburg, PA 17110-1778 GIBBEL, KRAYBILL & HESS By:C ?- Mely n H. ess Timothy E. Shawaryn Attorneys for Plaintiff 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Sup. Ct. Atty. ID. #23225 Sup. Ct. Atty. ID. #87838 (s":? -rtST cjrl ?J SMIGEL, ANDERSON 8: SACKS, LLP River Chase Office Center 4431 North Front Street, 3f0 Floor Harrisburg, PA 17110-1778 (717) 234-2401 NORMAN MORACE, Plaintiff, V. MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant. Peter M. Good, Esquire Pgood@sasllp.com Susan M. Zeamer, Esquire steamer, Osaslic oorn Attomeys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CI-04-2854 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANT'S NEW MATTER AND NOW comes Plaintiff Norman Morace, by and through his counsel Smigel, Anderson & Sacks, LLP, who responds to Defendant's New Matter to Plaintiffs Complaint as follows: 26. No responsive pleading is required. To the extent a response may be required, Plaintiff incorporates Paragraphs 1-25 of his Complaint as if fully set forth herein. 27. Denied. It is specifically denied that any of the defenses raised in Paragraph 27 of Defendant's New Matter are applicable to the present matter. Strict proof of their applicability and evidence that supports such defenses, if admissible, is demanded at the time of trial. 28. Denied. It is specifically denied that the Plaintiff has, or had, any ability to mitigate the damages suffered as a result of Defendant's breach of contract. Strict proof at the time of trial, if admissible, is demanded. By way of further answer, Plaintiff is left with a building, not constructed to the specifications of the contract, which cannot be "repaired," but must be torn down and rebuilt. 29. Denied. It is specifically denied that Plaintiffs claims are barred by either the doctrine of unclean hands or the doctrine of waiver. Strict proof of evidence to support these defenses and the applicability of such defenses to the present matter, if admissible, is demanded at the time of trial. By way of further answer, Defendant appears to be incorporating wholesale every affirmative defense whether the raising of such an affirmative defense is meritful or not. 30. Denied. It is specifically denied that Plaintiff's claims are barred by the doctrine of accord and satisfaction. Strict proof of evidence to support this defense and the applicability of such defense to the present matter, if admissible, is demanded at the time of trial. By way of further answer, Defendant appears to be incorporating wholesale every affirmative defense whether the raising of such an affirmative defense is meritful or not. 31. Denied. It is specifically denied that Plaintiffs claims are barred by the doctrine of novation. Strict proof of evidence to support this defense and the applicability of such defense to the present matter, if admissible, is demanded at the time of trial. By way of further answer, Defendant appears to be incorporating wholesale every affirmative defense whether the raising of such an affirmative defense is meritful or not. -2- 32. Denied. It is specifically denied that the Plaintiff failed to comply with a condition concurrent to Defendant's duty to complete the job. Moreover, Defendant, using it's own contract form, contracted to construct a pole building with the specifications of an inside ceiling height of fourteen (14) feet. The "specifications" were guaranteed. Strict proof to support Defendant's claim that Plaintiff failed to comply with a condition concurrent to Defendant's duty to complete the job is demanded at the time of trial, if admissible. By way of further answer, Plaintiff hereby incorporates Paragraphs 1-25 of his Complaint as if fully set forth herein. 33. Denied. It is denied that Plaintiff has failed to state a claim upon which relief can be granted. Strict proof of evidence to support such a claim, if admissible, is demanded at the time of trial. By way of further answer, Plaintiff hereby incorporates Paragraphs 1-25 of his Complaint as if fully set forth herein. Moreover, Defendant has waived this claim by failing to raise such a claim through preliminary objection. 34. Denied. It is denied that Plaintiffs damages are due, in whole or in part, to the actions or inactions of the Plaintiff or any other parties. Strict proof of evidence to support such a claim, if admissible, is demanded at the time of trial. By way of further answer, Plaintiff hereby incorporates Paragraphs 1-25 of his Complaint as if fully set forth herein. 35. Denied. It is specifically denied that Plaintiffs claims are barred to the extent that damages and/or losses allegedly sustained were caused by parties over whom Defendant had no control and is not responsible. Strict proof of evidence to support such a claim, if admissible, is demanded at the time of trial. By way of further -3- answer, Plaintiff hereby incorporates Paragraphs 1-25 of his Complaint as if fully set forth herein. 36. Denied as stated. It is denied that the installation of mechanical garage door openers was not a factor in the contract entered into between Plaintiff and Defendant. While Defendant was not contracted to install mechanical garage door openers, Defendant was aware that sufficient inside ceiling height was required between the ceiling and the upper-most arch of the garage doors to allow for placement of mechanical garage door openers. 37. Denied. It is denied that the finished framed building had an inside ceiling height of fourteen (14) feet. Strict proof, if admissible, is demanded at the time of trial. By way of further answer, Plaintiff hereby incorporates Paragraphs 1-25 of his Complaint as if fully set forth herein. 38. Denied. It is denied that the Plaintiffs actions of pouring a concrete floor unilaterally reduced the inside ceiling height of the building. The implication that Defendant was unaware that a floor would be poured is also denied. By way of further answer, Defendant, itself, recommended the subcontractor to pour the concrete floor for the building, a subcontractor previously recommended by and used on Defendant's jobs. See Defendant's admission to such a fact in Paragraph 10 of Defendant's Answer with New Matter. Moreover, the concrete floor was poured to the specifications and requirements of the Defendant. 39. Denied. It is denied the Defendant ever had a conversation advising the Plaintiff that the concrete floor would have to be poured below the building's base. Strict proof at the time of trial, if admissible, is demanded. By way of further answer, it -a- is beyond common sense and business sense that a concrete floor of a thirty (30) foot by sixty (60) foot pole building constructed for purposes of storing a large recreational vehicle would have a floor drop down five (5) to six (6) inches below the base frame of the building. Moreover, it is Defendant's contract, on a form created for and utilized by the Defendant, that specifies the pole building will have an inside ceiling height of fourteen (14) feet. 40. Denied. It is denied that the East Pennsboro Township codes and/or ordinances prohibit the construction of a pole building with an inside ceiling height of fourteen (14) feet. Moreover, Defendant's allegations that the pole building would have to be raised up to accommodate the requested inside ceiling height of fourteen (14) feet demonstrates that there was a construction error, not allowing for the fourteen (14) feet specified and guaranteed in the contract developed for and utilized by Defendant. 41. Denied. The contract in question is a written document, attached to the Complaint as Exhibit A, which speaks for itself. Any conclusions, summaries, or allegations regarding the content of that document are therefore denied. 42. Admitted as stated. It is admitted that Defendant was not contracted to pour the concrete floor. By way of further answer, Defendant did recommend the subcontractor, one previously used by Defendant on other jobs, to pour the concrete floor. Moreover, the subcontractor poured the concrete floor in Plaintiffs pole building to Defendant's specifications and requirements. Finally, Plaintiff hereby incorporates Paragraphs 1-25 of his Complaint as if fully set forth herein. 43. Denied. It is denied that Defendant has no responsibility regarding the internal functional ceiling height of the pole building it constructed as the inside ceiling -5- height was guaranteed to be as specified, or fourteen (14) feet, as contracted between the Plaintiff and Defendant on a contract form developed for and utilized by Defendant. 44. Denied. It is specifically denied that Plaintiff miscalculated the depth of the floor and/or that he seeks remediation for his own error. Strict proof of the same, if admissible, is demanded at the time of trial. By way of further answer, Plaintiff hereby incorporates Paragraphs 1-25 of his Complaint as if fully set forth herein. Moreover, it is Defendant who calculated the depth of the floor, the hole to be excavated for purposes of the fill and depth of the floor, and the amount of fill to be used. It was the concrete subcontractor recommended by and previously used by Defendant who poured the floor to Defendant's specifications. WHEREFORE, Plaintiff Morace demands judgment: be entered in his favor and against Musser & Associates, Inc. t/a Fetterville Sales as follows: (1) Declaring that Fetterville is in breach under the terms of the contract; and (2) Awarding monetary and compensatory damages for the building of a new structure, together with costs and fees, and interest, said amount being presently in excess of $50,000, and this county's mandatory arbitration limits. SMIGEL, ANDERSON & SACKS, LLP 4Pt?te-rLi2'G-LdL, Es I.D. Number: 6431 Susan M. Zeamer, Esquire I.D. Number: 82023 River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 Dated: (13' (717) 234-2401 Attorneys for Plaintiff -6- CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: Melvin H. Hess, Esquire Timothy E. Shawaryn, EsgWre Gibbel, Kraybill & Hess 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Attorneys for Defendant SMIGEL, ANDERSON & SACKS, LLP teG oodEsqu r: 4316 . 'earner, Esquire I.D. Number: 82023 River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff Dated: 8I (? q -7- r,..? n3 r..i ?_ ...? r ? I `?'.1-?- G i ?_ ?r.' ?r! 1 __ ? ? O j[t (:: :'i SMIGEL, ANDERSON & SACKS, L.L.P. River Chase Office Center 4431 North Front Street, S4 Floor Harrisburg, PA 17110-1778 (717) 234-2401 NORMAN MORACE, Plaintiff, V. MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant. Peter M. Good, Esquire pgood@sasllp.com Susan M. Zeamer, Esquire szeamer(ftasilo.com Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CI-04-2854 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED PLAINTIFF NORMAN MORACE'S MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANT MUSSER & ASSOCIATES, INC. t/a FETTERVILLE SALES Plaintiff Norman Morace, by and through his counsel Smigel, Anderson & Sacks, L.L.P. respectfully moves for Summary Judgment on the sole count of Breach of Contract in Plaintiff's Complaint under Rule 1035.2 the Pennsylvania Rules of Civil Procedure and Cumberland County local rule 1035.2(a) and in support thereof avers as follows: Procedural History: 1. Plaintiff initiated the matter subjudice by filing a Complaint with this Honorable Court on or about June 21, 2004. Service was; made upon counsel for Defendant through an Acceptance of Service form which was signed and accepted by counsel for Defendant on June 24, 2004. 2. Defendant responded to Plaintiff's Complaint by filing Preliminary Objections to the Complaint on or about July 13, 2004. On or about this same date Defendant filed it's Brief in Support of it's Preliminary Objections. The Preliminary Objections centered around the alleged failure of the Plaintiff to attach it's Exhibits to the Complaint. 3. To resolve the Preliminary Objections, Plaintiff filed a Praecipe to Attach Exhibits to the Complaint on July 16, 2004. On or about August 4, 2004 Defendant filed it's Answer with New Matter to Plaintiff's Complaint. 4. Approximately five days later, or on or about August 9, 2004, Defendant filed a Praecipe with this Honorable Court to withdraw its Preliminary Objections to the Complaint. 5. On August 13, 2004, Plaintiff filed it's response to Defendant's New Matter. 6. Following the August 13th filing by the Plaintiff, the pleadings in this matter were closed and this matter became ripe for Summary Judgment. Factual Background: 7. On May 29, 2003 Plaintiff Norman Morace ("Mr. Morace") entered into a contract hereinafter ("the Contract") with Defendant MussE.,r and Associates, Inc. Va Fetterville Sales ("Fetterville") for the construction of a 30 foot by 60 foot pole building (hereinafter "Pole Building"), a structure to be used by Mr. Morace for the storage of a large recreational vehicle. -2- 8. Under the terms of the contract, Fettervilkf agreed to build the Pole Building with an inside ceiling height of 14 feet. The Pole Building, to be erected by Fetterville, included 13 foot high overhead doors. 9. Mr. Morace contracted for the Pole Building to be constructed with an inside ceiling height of 14 foot to allow for the installation of door drivers, or mechanical garage door openers to operate the heavy, large 13 foot high overhead doors. 10. The terms of the contract provided that all materials and work were to be completed as specified. 11. Under the terms of the contract, Mr. Morace was responsible for sight preparation which included excavation, fill and the pouring of the concrete floor. 12. Mr. Morace contracted with a cement contractor recommended by Fetterville and who had previously installed floors for Fet1`.erville whole buildings. 13. The site was excavated and the fill or gravel installed in accordance with the instructions given by Fetterville through its employees, agents and/or representatives. 14. Afterwards, a six inch concrete floor was poured, the surface of which was laid to the skirting of the main door openings already in place in the Pole Building, insuring that there would be no drop-off from the door to the floor of the building. 15. The contract price was $25,300.00, which was later amended to $29,260.00 as Mr. Morace requested additional material, including R19 insulation for ceiling and side walls with painted liner panel. The new price and additional material were included in a Change Order form. Mr. Morace paid Fetterville $29,260.00 to construct the building as specified in the contract, which included a $5,000.00 down -3- payment which was made on or about May 29, 2003; a payment of $18,408.00 which was made on or about August 12, 2003; $2,991.00 paid on or about August 21, 2003 and finally a payment of $2,861.00 made on or about October 13, 2003. 16. Contrary to the terms of the contract, it was discovered that the completed Pole Building included an inside ceiling height that was approximately 13 feet 7 inches high, or approximately 5 inches lower than the 14 feet specified in the contract. Taking into consideration the arched curve of the 13 feet high overhead doors, it is difficult if not impossible to have door drivers installed to operate the large heavy doors included with the building. 17. Additionally, Fetterville also improperly installed torsion springs for the 13 foot height overhead doors, so that the wires that raise and lower the 13 foot high overhead doors wrap around each other, causing the win: to fray and eventually to sever. 18. Although Fetterville made two attempts to repair the torsion spring problem, the problem has not been repaired and Fetterville refuses to attempt any further repair and/or to replace the torsion springs despite repeated demands to do so. 19. As the inside ceiling height was not completed as specified under the terms of the contract, making it impossible for Mr. Morace to install door drivers to operate the heavy large 13 foot overhead doors, and the torsion springs were improperly installed, Mr. Morace will have to remove the Pole Building and construct a new building with the desired specifications and proper installation. 20. As a direct consequence, Mr. Morace will be forced to spend in excess of $50,000.00 in order to remove the Pole Building built by Fetterville, which will cause the -4- concrete foundation to be broken up, relay the concrete foundation and build a new 30 foot by 60 foot Pole Building with an inside ceiling height of 14 feet and properly install torsion springs for the Pole Building's overhead doors. Count 1 - Breach of Contract 21. The averments contained in paragraph 1 through 20 are hereby incorporated by reference as if fully stated herein. 22. Mr. Morace has brought a breach of contract action against Fetterville for its failure to properly construct and erect a 30 foot by 60 Foot Pole Building which was the subject of a contract prepared by Fetterville itself. The contract specifically requires the building to have an inside ceiling height of 14 feet. 23. The contract also specifically provides that all materials and work will be completed as specified in the contract. Mr. Morace has fulfilled all of his duties and obligations under the contract by completing site preparation and making full payment of the $29,260.00 required by the contract. 24. Fetterville, however, has materially breached the terms of the contract by failing to complete all of the work as specified in the contract and specifically by constructing the Pole Building with an inside ceiling height of less than 14 feet or 13 feet 7 inches. Moreover, Fetterville has failed to properly install the torsion springs in a workman like manner, as specified in the contract which makes it even further difficult for Mr. Morace to operate the 13 foot overhead doors. 25. The terms of the contract are clear and, further, were prepared by the Defendant, Fetterville. -5- 26. The facts of the case are also quite clear. From the concrete floor of the building to the inside ceiling of the building measures less than 14 feet. 27. What remains, then, is for the Court to interpret the terms of the contract and then apply that interpretation and the law to the facts of this case. 28. As such, Plaintiff Norman Morace believes and therefore avers that this matter is appropriate for Summary Judgment and, as a result, requests that this Honorable Court grant Summary Judgment in his favor and against the Defendant Musser and Associates, Inc. t/a Fetterville Sales. WHEREFORE, Plaintiff Norman Morace respectfully requests that this Honorable Court enter Summary Judgment in his favor and against ithe Defendant Musser and Associates, Inc. t/a Fetterville Sales and award the relief sought through the Complaint, specifically declaring that the Defendant is in breach undW the terms of the contract and awarding monetary and compensatory damages for the building of a new structure together with costs and fees and interest a set amount presently being in excess of $50,000.00. Dated: i -1 ? OS" SMIGEL, ANDERSON & SACKS, L.L.P. TM w,\ M -Z' Pete Good, Es I.D. ber: 643 Susan M. 2:eamer, Esquire I.D. Number: 82023 River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff -6- CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: Melvin H. Hess, Esquire Timothy E. Shawaryn, Esquire Gibbel, Kraybill & Hess 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Attorneys for Defendant SMIGEL, ANDERSON & SACKS, L.L.P. di; Pet r M. Good, Esq e I.D. Number: 6431 Susan M. Zeamer, Esquire I.D. Number: 82023 River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-:2401 Attorneys for Plaintiff Dated: 11r' } 6S" V'i -. - 441J L? y7 Gig .. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ORIGINAL NORMAN MORALE, Plaintiff V. No. CI-04-2854 MUSSER & ASSOCIATES, INC. t/a/ ) FETTERVILLE SALES, ) Defendant CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO Pa.R.C.P. 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendant certifies that 1. a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party, 2. a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, 3. plaintiffs counsel does not have an objection to the subpoena and is willing to waive the remainder of the (20) twenty day notice period (a copy of Plaintiffs letter is attached hereto), and 4. the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Date: VA. 3 ?uas GIBBEL, KRAYBILL & HESS By Timothy E. haw Attorneys for Defendant 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Sup. Ct. Atty. ID. #87838 NORMAN MORACE, Plaintiff V. MUSSER & ASSOCIATES, INC., tla FETTERVILLE SALES, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CI-04-2854 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO Pa.,R.C.P. 4009.21 Defendant, Musser & Associates, Inc. t/a Fetterville Sales intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena maybe served. Date: 1(21 IOs GIBBEL, KRAYBILL & HESS By. Melvin I. He Timothy E. Sl'zawaryn Attorneys for Defendant 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Sup. Ct. Atty. ID. #23225 Sup. Ct. Atty. I.D. #87838 Commonwealth of Pennsylvania County of Cumberland NORMAN MORACE, ) Plaintiff(s) ) V. ) MUSSER & ASSOCIATES, INC., t/a ) FETTERVILLE SALES, ) Defendant(s) ) Docket No. CI-04-2854 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE M9 22 To: Robert Gill, Township Manager East Pennsboro Township 98 South Enola Drive Enola, PA 17025-2796 Within twenty (20) days after service of this subpoena, you are orderby the court to produce the following documents or things: your complete file, including notes, drawing, memJ'd""'s, applications, correspondence, applicable ordinance provisions as of May 2003, and permits regarding an)C"sory building or buildings erected at 1544 Seltzer Court, Mechanicsburg, Pennsylvania since May 1, 2001 at Gib' Rxaybill & Hess, 41 East Orange Street, Lancaster, PA 17602. You may deliver or mail legible copies of the documents o.oduce things requested by this subpoena, together with the certificate of compliance, to the party making this rent at the address listed above. You have the right to seek in advance the reasonable cost ofpreparing the copies or races the things sought. If you fail to produce the documents or things required 08 subpoena within hventy (20) days after its service, the party serving this subpoena may seek a court order co*9 you to comply with it This subpoena was issued at the request of the following r": othy E. Shawaryn omey's name PA87838 dentification Number 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Attorney for Defendant BY THE COURT: (Prothonotary) Seal of the Court CERTIFICATE OF SERVICE sy I HEREBY CERTIFY that I have this 21 day of _ ?t.t . , 2005 served the foregoing Notice upon the person and in the manner indicated below. Service by First Class Mail, addressed as follows: Peter M. Good, Esquire Susan M. Zeamer, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110-1709 GIBBEL, KRAYBILL & HESS By: £ ' Melvin . Hess Timothy E. Shawaryn Attorneys for Defendant 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Sup. Ct. Atty. I.D. #23225 Sup. Ct. Atty. I.D. #87838 SMIGEL, ANDERSON SUSAN M. ZEAMER, ESQUIRE & SACKS LLP PHONE: (717) 234-2401 ATTORNEYS AT LAw TOLL FREE: 1-800-822-9767 FACSIMILE (717) 234-3611 EMAIL: szeamer@sasllp.com February 2, 2005 www.sasllp.com File No. 1550-6-7 Timothy E. Shawaryn, Esquire Gibbel, Kraybil; &- Hass 41 East Orange Street Lancaster, PA 17602 Re: Norman Morace v. Musser & Associates, Inc., t/a Fetterville Sales Cumberland County Docket No. 04-2854 Dear Attorney Shawaryn: I am in receipt of the correspondence prepared by Susan R. Boddy forwarding your Notice of Intent to Serve Subpoena and the proposed Subpoena dated January 21, 2005. I have no objection to the said Subpoena and further am willing to waive the remainder of the twenty (20) day Notice period with regard to this Subpoena so that you may serve the Subpoena immediately if you desire. In exchange for this waiver of the remainder of the 20 day period, I simply ask that you provide us a courtesy copy of all documents produced in accordance with the Subpoena. Should you have any questions or concerns regarding this, please do not hesitate to contact me at the telephone number provided above. Sincerely, Su an M. Zeam SMZJhIm cc: Norman Morace 7-03-o'50 2 R°V) g River Chase Office Center, 3rd Floor, 4431 North Front Street Harrisburg. Pennsylvania 17110-1778 A PENNSYLVANIA LIMITED LIABILITY PARTNERSHIP CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this 3A day of _ a . , 2005 served the foregoing document upon the persons and in the manner indicated below. Service by First Class Mail, addressed as follows: Peter M. Good, Esquire Susan M. Zeamer, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110-1709 GIBBEL, KRAYBILL & HESS By: : A, Timothy Sha aryn Attorneys for Defendant 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Sup. Ct. Atty. I.D. #87838 ?.. e , i"? 1 _A ?Y? ?] ? ?? .,.y fi% ? ?5; 7 ^ .. ? j ?, . ; ,1 .} ?. G? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NORMAN MORACE, Plaintiff VS. No.: CI-04-2854 MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant ANSWER OF DEFENDANT MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES IN RESPONSE TO PLAINTIFF NORMAN MORACE'S MOTION FOR SUMMARY JUDGMENT Your Honorable court should deny Plaintiff's Motion for Summary Judgment because there are disputed issues of fact and the Plaintiff relies on imsubstantiated facts that are not present within the record to support his breach of contract claim. Moreover, this matter is not ripe for summary judgment in that depositions and the submission of expert reports have not occurred as mandated by Pennsylvania Rule of Civil Procedure 1035.2.(2). Accordingly, Defendant Musser & Associates, Inc., t/a Fetterville Sales (hereinafter "Fetterville Sales") respectfully request this Court to deny the Plaintiff's Motion for Summary Judgment. In support thereof, Defendant provides: Procedural History 1. Admitted. 2. Denied. Rather, the Defendant's Preliminary Objections and Brief in Support were filed on July 14, 2004. Otherwise, denied in that the Defendant's Preliminary Objections is a writing and speaks for itself. 3. Admitted in part and denied in part. It is admitted that the Plaintiff's actions in filling a Praecipe to Attach Exhibits resolved the Defendant's objections to the Complaint. The remaining allegation of this averment is denied in that the Defendant filed its Answer with New Matter on August 5, 2004. 4. Denied. The Defendant filed a Praecipe withdrawing its Preliminary Objections on August 5, 2004. 5. Admitted. 6. Denied. Although it is admitted that the relevant pleadings are closed, this matter is not ripe for Summary Judgment. In fact, depositions and the submission of expert reports have not been completed as required by Pennsylvania Rule of Civil Procedure 1035.2.(2) that would warrant the entry of summary judgment. Factual Background 7. Denied. No response is required in that the content of the contract is a writing and speaks for itself. By way of further response, the Defendant lacks sufficient knowledge or information to form a belief as to whether the structure was to be used by the Plaintiff for the storage of a large recreational vehicle and, therefore, denies this allegation and demands strict proof at the time of trial. 8. Denied. No response is required in that the content of the contract is a writing and speaks for itself. 9. Denied. To the contrary, the inside ceiling height of fourteen (14) feet was agreed upon in order to comply with East Pennsboro Township regulations and restrictions on the height of accessory buildings. (The issues regarding the Township requirements and Plaintiff's understanding thereof, are issues of fact that may be relevant at the time of trial but await discovery for the events relevant hereto.) It is also specifically denied that the overhead doors 2 are heavy and the installation of a mechanical garage door opener was a condition or term of the contract. Otherwise denied in that the contract speaks for itself. 10. Denied. No response is required in that the content of the contract is a writing and speaks for itself. 11. Denied. No response is required in that the content of the contract is a writing and speaks for itself. However, generally admitted Plaintiff was responsible for excavating and concreting. 12. Denied. Rather, as a courtesy, the Defendant provided the name of several cement contractors that had previously installed floors for Fetterville pole buildings. 13. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in Paragraph 13. Accordingly, these averments are denied and strict proof thereof is demanded at the time of trial. By way of further response, whether the excavation of the site and the installation of fill or gravel was installed properly are disputed questions of fact. 14. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in Paragraph 13. Accordingly, these averments are denied and strict proof thereof is demanded at the time of trial. By way of further response, the allegations of this paragraph are disputed questions of fact. 15. Admitted in part and denied in part. It is only admitted that the Plaintiff paid $29,260 to construct the building, including a $5,000 down payment. The remaining allegations are denied in that no response is required in that the content of the contract is a writing and speaks for itself. 3 16. Denied. The averments of Paragraph 16 are conclusions of law to which no responsive pleading is required. By way of further response, after reasonable investigation, Defendant is without knowledge or information sufficient to firm a belief as to the truth of the averments in Paragraph 16. Accordingly, these averments are denied and strict proof thereof is demanded at the time of trial. Additionally, this averment includes several issues of fact which can only be resolved at trial. 17. Denied. The averments of Paragraph 17 are conclusions of law to which no responsive pleading is required. By way of further response, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in Paragraph 17. Accordingly, these averments are denied and strict proof thereof is demanded at the time of trial. Moreover, the Defendant specifically denies there are any problems with the steel cable or that the torsion springs were improperly installed. Again, this averment references issues of fact to be adjudicated at the time of a trial. 18. Denied. It is specifically denied that the Defendant has attempted to repair the torsion spring problem on two occasions. 19. Denied. The averments of Paragraph 19 are conclusions of law to which no responsive pleading is required. By way of further response, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in Paragraph 19. Accordingly, these averments are denied and strict proof thereof is demanded at the time of trial. However, specifically denied Defendant's performance wasn't compliant with the specifications. 4 20. Denied. The averments of Paragraph 20 are conclusions of law to which no responsive pleading is required. Moreover, there are no admitted facts within the record or expert report establishing the Plaintiff's damages or the need to remove the building. Count 1- Breach of Contract 21. Defendant incorporates by reference as if set forth more fully herein its answers to Paragraphs 1 through 20 of Plaintiff's Motion for Summary Judgment. 22. Denied in that the Plaintiff's Complaint and the parties' contract are writings and speak for themselves. 23. The averments of Paragraph 23 are conclusions of law to which no responsive pleading is required. By way of further response, the parties' contract is a writing and speaks for itself. 24. The allegations contained in Paragraph 24 are conclusions of law to which no responsive pleading is required. To the extent that a response is required, it is specifically denied that the Defendant breached the contract's requirements and strict proof thereof is demanded at the time of trial. By way of additional response, Defendant expressly denies that it failed to complete the work and provided the materials required by the contract. Rather, the Defendant fully complied with the contract. Moreover, Defendant expressly denies that it is responsible for the current height of the building. Indeed, a building with an inside ceiling height of fourteen (14) feet was provided by the Defendant. Lastly, the Defendant expressly denies that the torsion springs were improperly installed. In any event, these are all issues of fact not amenable to resolution by a Motion for Summary Judgment. 5 25. The allegations contained in Paragraph 25 are conclusions of law to which no responsive pleading is required. However, admitted Defendant prepared the document characterized by Plaintiff as "the contract". 26. Denied. The facts of this case are not quite clear. There are several dispute issues of fact outlined below which demonstrate that the Plaintiff has failed to establish the standards necessary for the grant of summary judgment. Indeed, the installation of a mechanical garage door opener was not a requirement of the parties' contract. Moreover, when the Defendant had finished framing the building, the ceiling height was fourteen (14) feet. By pouring the concrete floor, which was not a part of the contract, the Plaintiff unilaterally reduced the height of the ceiling in the building. Plaintiff was informed by the Defendant that to maintain the fourteen (14) foot ceiling height, the installation of the concrete floor would have to be placed below the building's base. Even if the Plaintiff desired to have a fourteen (14) foot ceiling after the pouring of a concrete floor inside the building (and not underneath the building's base as recommended by the Defendant), Plaintiff discovered the East Pennsboro Township's restriction on the height of an accessory building would have precluded the building from being raised any higher to accommodate the Plaintiff's request; an issue the Defendant reasonably relied upon the Plaintiff to resolve. Moreover, with discovery not completed this matter is not ripe for summary judgment. 27. The allegations contained in Paragraph 27 are conclusions of law to which no responsive pleading is required. 28. The allegations contained in Paragraph 28 are conclusions of law to which no responsive pleading is required. By way of further answer, the Plaintiff's Motion for Summary Judgment should be denied because there are disputed issues of fact and the Plaintiff's Motion 6 relies on unsubstantiated facts that are not present within the record to support his breach of contract claim. WHEREFORE, Defendant Musser & Associates, Inc., t/a Fetterville Sales (hereinafter "Fetterville Sales") respectfully request this Court to deny the Plaintiffs Motion for Summary Judgment. Respectfully submitted, GIBBEL, KRAYBILL & HESS By: C Melvi H. H s Timothy E. Shawaryn Attorneys for Defendant Fetterville Sales 41 East Orange Street Lancaster, PA 17602 (717)291-1700 Sup. Ct. Atty. I.D. # 23225 Sup. Ct.. Atty. I.D. #87838 7 CERTIFICATE OF SERVICE d I HEREBY CERTIFY that I have this r day of F&4 . , 2005, served the foregoing document upon the person(s) and in the manner indicated below. Service by first class mail, addressed as follows: Susan M. Zeamer, Esquire Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center, 3`d Floor 4431 North Front Street Harrisburg, PA 17110-1778 GIBBEL, KRAYBILL & HESS By:L?'1 Melv 13. ss Timothy E. Shawaryn Attorneys for Defendant Fetterville Sales 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Sup. Ct. Atty. ID. #23225 Sup. Ct. Atty. ID. #87838 :: _, ,_ ? ?,<< _._? _„ ty :, ?. .. NORMAN MORACE, V. IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant. No. CI-04-2854 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: NOW COMES, Plaintiff, Norman Morace, by and through his counsel, Smigel, Anderson & Sacks, L.L.P., who files the within Praecipe For Listing Case For Argument as follows: 1. The matters to be argued before this Court are the Plaintiffs Motion for Summary Judgment. 2. The names and addresses of all attorneys who may argue the case are as follows: (a) Plaintiff: Peter M. Good, Esquire Susan M. Zeamer, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110-1709 (717) 234-2401 (b) Defendant: Melvin H. Hess, Esquire Timothy E. Shawaryn, Esquire Gibbel, Kraybill & Hess 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 3. Within two (2) days, I will notify all parties that this case has been listed for argument once I receive a time-stamped copy of this Praecipe setting forth the argument court date. 4. Argument Court Dated: g Gs C, H- 1v?' M. Good, uire, ID #64316 i M. Zeam r, Esquire, ID #82023 Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff NORMAN MORACE, V. : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA MUSSER & ASSOCIATES, INC., tla FETTERVILLE SALES, Defendant. No. CI-04-2854 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Susan M. Zeamer, Esquire, attorney for Plaintiff in the above-captioned matter, do hereby certify that I served a true and correct copy of Plaintiff's Praecipe to List the Motion for Summary Judgment for Argument on counsel for the Defendant by depositing same in the U.S. Mail, on April 8, 2005, postage prepaid for first class mail, addressed as follows: Melvin H. Hess, Esquire Timothy E. Shawaryn, Esquire Gibbel, Kraybill & Hess 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Counsel for Defendant SMIGEL, ANDERSON & SACKS, L.L.P. (" C. v-- fv-\ 5 eter M. Good, re #T#34fr- usan M. Zeamer squire, ID 482023 River Chase Office Center, 3`d Floor 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff ? ?. f u? z` ? S T rn?- ,? r T? '_ ;C?7 _ - ."`i ?' -- ?r'r? ' w . __? _:'J 'zi a ? NORMAN MORACE, Plaintiff V. MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW ,NO. 04-2854 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY and OLER, JJ. ORDER OF COURT AND NOW, this I" day of June, 2005, after a careful examination of the record, briefs submitted by counsel, following oral argument held on May 4, 2005, and for the reasons stated in the accompanying opinion, Plaintiff's Motion for Summary Judgment is denied. BY THE COURT, teeter M. Good, Esq. Susan M. Zeamer, Esq. Smigel, Anderson & Sacks, L.L.P. River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 Attorneys for Plaintiff -4delvin H. Hess, Esq. Timothy E. Shawaryn, Esq. Gibbel, Kraybill & Hess 41 East Orange Street Lancaster, PA 17602 Attorneys for Defendant C)tp ,? N NORMAN MORACE, Plaintiff V. MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 04-2854 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY and OLER, JJ. OPINION and ORDER OF COURT OLER, J., June 1, 2005. This case arises out of a contract between Plaintiff Norman Morace and Defendant Musser & Associates, Inc., for the construction of a pole building on Plaintiff's property. Defendant allegedly breached its contract with Plaintiff to construct a thirty- by sixty-foot pole building on Plaintiffs property.' Plaintiff filed a Complaint,Z to which Defendant filed preliminary objections.' Defendant then withdrew its preliminary objections4 and filed an Answer and New Matter to Plaintiff's Complaint.5 Plaintiff filed a Response to Defendant's New Matter,b and later filed a Motion for Summary Judgment against Defendant. Defendant filed an i See Pl.'s Compl. ¶¶ 20-25, filed June 21, 2004 (hereinafter Pl.'s Compl. _). 'See Pl.'s Compl. ' Defendant's preliminary objections were based upon Plaintiff's failure to attach a copy of the contract to the Complaint pursuant to Pa. R.C.P. 1019. See Preliminary Objections of Defendant Musser & Associates, Inc., t/a Fetterville Sales, filed July 14, 2004. 4 See Praecipe, filed Aug. 5, 2004. 5 See Defendant Musser & Associates, Inc. t/a Fetterville Sales' Answer and New Matter, filed Aug. 5, 2004 (hereinafter Def's Answer & New Matter _). 'See Plaintiff's Response to Defendant's New Matter, filed Aug. 16, 2004 (hereinafter Pl.'s Response to New Matter _). 'See Plaintiff Norman Morace's Motion for Summary Judgment Against Defendant Musser & Associates, Inc. Ua Fetterville Sales, filed Jan. 10, 2005 (hereinafter Pl.'s Motion for Summary Judgment I answer to Plaintiff's Motion for Summary Judgment.8 No depositions or affidavits have been filed of record. For disposition at this time is Plaintiff's Motion for Summary Judgment. For the reasons stated in this opinion, Plaintiff's Motion for Summary Judgment will be denied. STATEMENT OF FACTS Plaintiff is Norman Morace, who currently lives at 1544 Seltzer Court, Mechanicsburg, Cumberland County, Pennsylvania.9 Defendant is Musser & Associates, Inc. t/a Fetterville Sales, a Pennsylvania business corporation with its principal place of business located at 245 Fetterville Road, East Earl, Lancaster County, Pennsylvania. 10 On May 29, 2003, Plaintiff entered into a contract with Defendant for the construction of a pole building on Plaintiff's property.11 Defendant originally quoted Plaintiff a price of $25,300.00 for construction of the building, which was later amended to $29,260.00.12 Plaintiff has paid the $29,260.00 contract price in fu11.13 According to the contract, the dimensions of the pole building were to be thirty feet by sixty feet, with an inside ceiling height of fourteen feet. 14 The building was to include thirteen-foot high overhead doors. 15 Preparation of the building site for construction, including the excavation, fill, and pouring of the concrete floor, was Plaintiff's responsibility. 16 Plaintiff contracted with a cement contractor who had previously worked with and was recommended by Defendant to have the building's floor s See Answer of Defendant Musser & Associates, Inc., t/a Fetterville Sales in Response to Plaintiff Norman Morace's Motion for Summary Judgment, filed Feb. 7, 2005 (hereinafter Def's Answer to Summary Judgment Motion _). 9 Pl.'s Compl. ¶ 1; Def's Answer & New Matter ¶ 1. 10 Pl.'s Compl. ¶ 2; Def's Answer & New Matter ¶ 2. 11 Pl.'s Compl. ¶ 5, Ex. A; Def's Answer & New Matter ¶ 5. 12 PI.'s Compl. ¶ 13, Ex. B; Def's Answer & New Matter ¶ 13. 19 Pl.'s Compl. ¶ 14; Def's Answer & New Matter ¶ 14. 14 Pl.'s Compl. ¶¶ 5-6, Ex. A; Def's Answer & New Matter ¶¶ 5-6. " Pl.'s Compl. ¶ 6, Ex. A; Def's Answer & New Matter ¶ 6. 2 poured. 17 According to Plaintiff, the concrete was poured so that the floor's surface was level with the bottom of the building's doors.18 Plaintiff has alleged that Defendant breached the parties' contract by failing to construct the pole building as specified in the parties' contract.19 Specifically, Plaintiff has alleged that the inside ceiling height was not fourteen feet, but rather thirteen feet, seven inches, 20 making it impossible for Plaintiff to install door drivers to operate the overhead doors. 21 Additionally, Plaintiff has alleged that Defendant improperly installed the torsion springs for the overhead doors, causing the wires that raise and lower the doors to wrap around each other and wear. 22 Plaintiff has claimed that he has suffered damages in excess of $50,000.00 as a result of Defendant's alleged failure to properly construct the pole building. 23 Included in these damages are the costs of removing the current building, breaking up and removing the concrete foundation, and constructing a new pole building. 24 Defendant, on the other hand, has alleged that it performed the contract as specified, constructing for Plaintiff a pole building with an inside ceiling height of fourteen feet. 25 According to Defendant, it was responsible for construction of the walls, roof, and trim of the building, but, according to Defendant, installation of the building's floor-including the type and depth of the floor-was the responsibility of Plaintiff .26 Additionally, Defendant has claimed it informed Plaintiff that the concrete floor would 6 Pl.'s Compl. ¶ 9, Ex. A; Def.'s Answer & New Matter 19. " Pl.'s Compl. ¶ 10; DeE's Answer & New Matter ¶ 10. 18 Pl.'s Compl. ¶ 11-12. 19 PL's Compl. ¶¶ 20-25. 20 Pl.'s COMPI. IT 15,24. 21 Pl.'s Compl. ¶¶ 15, 18. 22 PL's Compl. ¶¶ 16, 24. " PL's Compl. ¶¶ 19, 25 24 Pl.'s Compl. 'l 25. 25 De£'s Answer & New Matter ¶ 37. 26 Def.'s Answer & New Matter IT 42-43 3 have to be poured below the building's base in order to maintain an inside ceiling height of fourteen feet. 27 Thus, Defendant has alleged that it was Plaintiff's miscalculation concerning the proper depth of the concrete floor, and Plaintiff's subsequent installation of the floor at an improper depth, that caused the building's inside ceiling to be of insufficient height.2S Alternatively, Defendant has argued that, even if Plaintiff wanted to have an inside ceiling height of fourteen feet after Plaintiff had improperly poured the concrete floor, East Pennsboro Township's restrictions on the height of accessory buildings would have precluded Defendant from raising the height of Plaintiff's building unless Plaintiff had received an exemption from East Pennsboro Township in this regard.29 Finally, Defendant has denied that the torsion springs for the overhead doors were improperly installed, or that any damage resulting to the wires that raise and lower the doors was the result of Defendant's installation of the springs.so Plaintiff has denied all of Defendant's allegations concerning Plaintiff's alleged improper installation of the concrete floor.31 Specifically, Plaintiff has alleged that Defendant did not construct the pole building as specified, as Defendant constructed a building with an inside ceiling height of less than fourteen feet. 32 Furthermore, Plaintiff has asserted that the concrete floor was poured in accordance with Defendant's specifications, that Defendant never instructed Plaintiff to pour the floor below the building's base, and that an instruction to pour the concrete floor below the building's base would have been illogical.33 Thus, Plaintiff has alleged that it was Defendant's, and 2' De£'s Answer & New Matter 139. 28 Def.'s Answer & New Matter ¶¶ 38-39,42-44. 29 Def's Answer & New Matter ¶¶ 40-41. 3° Def's Answer & New Matter ¶T 16-17. 31 Pl.'s Response to New Matter ¶¶ 38-39, 42-44. 32 Pl.'s Response to New Matter 137. 33 Pl.'s Compl. ¶ 11; Pl.'s Response to New Matter ¶¶ 38-39, 42. 4 not Plaintiff's, miscalculation of the depth of the concrete floor that has caused the inside ceiling height to be less than the fourteen feet provided for in the parties' contract. 34 Both parties have submitted briefs on Plaintiff's Motion for Summary Judgment .35 The matter was argued before the court on May 4, 2005. DISCUSSION Statement of Law Motion for Summary Judgment. Under Pennsylvania Rule of Civil Procedure 103 5.2, it is provided as follows with respect to summary judgment: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. R.C.P. 1035.2. On a motion for summary judgment, the record includes any pleadings, depositions, answers to interrogatories, admissions, affidavits, and expert reports. Pa. R.C.P. 1035.1. However, attachments to a brief are not part of the record for purposes of a motion for summary judgment. See Freed v. Allstate Insurance Co., 45 Cumberland L.J. 272 (1996); cf. McAllonis v. Pryor, 301 Pa. Super. 473, 448 A.2d 5 (1982). Pleadings are defined as "a complaint, an answer thereto, a reply if the answer contains 14 Pl.'s Response to New Matter 144. 35 Plaintiff Norman Morace's Brief in Support of His Motion for Summary Judgment Against Defendant, filed Apr. 19, 2005; Defendant Fetterville Sales' Brief in Opposition to Summary Judgment, filed May 3, 2005. 5 new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto." Pa. R.C.P. 1017. When considering whether summary judgment is proper, a court must examine the record in the light most favorable to the non-moving party, resolving all doubts against the moving party. Demmler v. SmithKline Beecham Corp., 448 Pa. Super. 425, 430, 671 A.2d 1151, 1153 (1996). Additionally, "`[a]n entry of summary judgment may be granted only in cases where the right is clear and free of doubt."' Id. (citing Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989)). Nevertheless: [T]he adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying (1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or (2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced. Pa. R.C.P. 1035.3. Breach of Contract. "A cause of action for breach of contract must be established by pleading (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages." Corestates Bank v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999). Application of Law to Facts In his Motion for Summary Judgment, Plaintiff has alleged that Defendant breached the parties' contract by failing to construct a pole building with the proper inside ceiling height and failing to properly install the torsion springs on the overhead doors. 36 Defendant has responded to Plaintiff's Motion for Summary Judgment, arguing that it was the unilateral actions of Plaintiff, specifically Plaintiffs improper pouring of 36 See Pl.'s Motion for Summary Judgment. 6 the concrete floor, that caused the inside ceiling height of the building to be less than fourteen feet, and that the torsion springs on the overhead doors were properly installed. 37 The record in this case consists of Plaintiffs Complaint, Defendant's Answer & New Matter, Plaintiffs Response to New Matter, Plaintiffs Motion for Summary Judgment, and Defendant's Answer to Plaintiff s Motion for Summary Judgment. 38 In construing the record in the light most favorable to Defendant, the court must accept the following facts as true: First, Defendant properly installed the torsion springs on the building's overhead doors. 39 Second, Defendant constructed a pole building with an inside ceiling height of fourteen feet on Plaintiffs property. 0 Third, any insufficiencies in the inside ceiling height of the building were caused by Plaintiff's failure to properly pour the building's concrete floor, a process for which Defendant was not responsible under the parties' contract41 In the court's opinion, the record in this case is sufficient to establish a genuine issue of material fact with respect to the question of whether Defendant breached its contract with Plaintiff to construct a pole building on Plaintiffs property with an inside ceiling height of fourteen feet. Therefore, Plaintiffs Motion for Summary Judgment must be denied. The following order will be entered: ORDER OF COURT AND NOW, this I" day of June, 2005, after a careful examination of the record, briefs submitted by counsel, following oral argument held on May 4, 2005, and for the reasons stated in the above opinion, Plaintiffs Motion for Summary Judgment is denied. 31 See Def.'s Answer to Summary Judgment Motion. 38 Plaintiff's document entitled Reproduced Record of Plaintiff, Norman Morace, in Support of Plaintiff's Motion for Summary Judgment, which was attached to Plaintiff s brief in support of the summary judgment motion, is not part of the record. 39 Def.'s Answer & New Matter TJ 16-17, 24. " Def.'s Answer & New Matter ¶T 24, 37. 4' Def.'s Answer & New Matter TJ 38-39, 42-44. 7 BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Peter M. Good, Esq. Susan M. Zeamer, Esq. Smigel, Anderson & Sacks, L.L.P. River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 Attorneys for Plaintiff Melvin H. Hess, Esq. Timothy E. Shawaryn, Esq. Gibbel, Kraybill & Hess 41 East Orange Street Lancaster, PA 17602 Attorneys for Defendant 04-d864 PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) 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 (endre capdon must be stated 1n fall) Norman Morace (check one) Civil Action - Law ? Appeal from arbitration (other) (Plaintiff) V6. Musser & Associates, Inc., t/a Fetter Ville Sales (Defendant) Va The trial list will be called on 10-10-06 and Trials commence on 11-6-2006 Pretrials will be held on 10-19-06 (Briefs are due S days before pretriah No. ci-04-2854 . X006 Term Indicate the attorney who will try case for the party who files this pmecipe: Peter M Good Fsauire &&-an M Zeamer, F.. 3irP Indicate trial counsel for other parties if known: This case is ready for trial. Susan M. Date: 8-17-2006 Attorney for: Plaintiff w Cl , ;y T Tip 7r o CI-04-2854 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NORMAN MORACE, ORIGINAL Plaintiff vs. No.: CI-04-2854 MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant PRAECIPE Kindly enter the appearance of Gibbel, Kraybill & Hess as attorneys for Defendant with regard to the above-captioned matter. By: GIBBEL, KftY$KLV & HESS Melvin H. Hess Jeffrey J. Worley Attorney for Defendant 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Sup. Ct. Atty. I.D. #23225 Sup. Ct. Atty. I.D. #94260 CI-04-2854 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this _ day of , 2006, served the foregoing document upon the person(s) and in the manner indicated below. Service by first class mail, addressed as follows: Susan M. Zeamer, Esquire Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center, 3'd Floor 4431 North Front Street Harrisburg, PA 17110-1778 GIBBEL, KRAYBI L 7ES By: Melvin H. Hesi Jeffrey J. Worley Attorneys for Plaintiff 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Sup. Ct. Atty. ID. #23225 Sup. Ct. Atty. ID. #94260 n o T cS' -1 C. 'p Vii' . y. ?tT G tS ?';, ?r? .? ?{xt C v C. :.3 .D 8 Norman Morace V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Musser & Associates, Inc., t/a Fetter Ville Sales NO. 04-2854 CIVIL TERM ORDER OF COURT AND NOW, October 19, 2006, by agreement of counsel, the above captioned case is continued from the November 6, 2006 trial term. Counsel are requested to relist the case for trial at such time as they deem appropriate. By the Court, J. W ley Oler, Jr. J. r M. Good, Esq. an M. Seamer, Esq. For the Plaintiff Avin H. Hess, Esq. ,y1mothy E. Shawaryn, Esq. For the Defendant a Court Administrator kam IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NORMAN MORACE, ) Plaintiff ) V. ) No. CI-04-2854 MUSSER & ASSOCIATES, INC. t/a/ ) FETTERVILLE SALES, ) Defendant CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO Pa.R.C.P. 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendant certifies that 1. a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, 2. a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, 3. no objection to the subpoena has been received, and 4. the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Date: J 0 ] -? D b ky GIBBEL, KRAYBWL & HESS By. V d/ Melvin H. ess Jeffrey J. Worley Attorneys for Defendant 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Sup. Ct. Atty. ID. #23225 Sup. Ct. Atty. ID. #94260 rya crw i '1 C 7 F r r Fri r • ?z PRAECIPE LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: X for JURY trial at the next term of civil court. ? for trial without a jury. --------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be state in full) (check one) X Civil Action -Law ? Appeal from arbitration (other) NORMAN MORACE, (Plaintiff) VS. The trial list will be called on Aug. 21, 2007 MUSSER & ASSOCIATES, INC., t/a Trials commence on September 17, 2007 FETTERVILLE SALES, (Defendant) Pretrials will be held on August 29, 2007 (Briefs are due S days before pretrials) oY-aWS Civil erm No. CJ .0? , '' -z0064eftn Indicate the attorney who will try case for the party who files this praecipe: Peter M. Good, Esquire and Darryl J. Liguori, Esquire Indicate trial counsel for other parties if known: Melvin H. Hess, Esquire and Timothy E. Shawaryn, Esquire This case is ready for trial. By: Peter M. Good, Esquire - ID #64316 Darryl J. Liguori, Esquire- ID #91715 SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Date: July 5, 2007 Attorneys for Plaintiff J - • NORMAN MORACE, Plaintiff, V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CI-04-2854 MUSSER & ASSOCIATES, INC., t/a CIVIL ACTION - LAW FETTERVILLE SALES, Defendant. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Darryl J. Liguori, Esquire, attorney for the Plaintiff in the above-captioned matter, certify that I this day served a copy of the foregoing Praecipe for Listing Case for Trial upon the person(s) indicated below via electronic mail and by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: Melvin H. Hess, Esquire Timothy E. Shawaryn, Esquire Gibbel, Kraybill & Hess 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 Attorneys for Defendant Date: July 5, 2007 SMIGEL, ANDERSON & SACKS, LLP BY= 0j Peter M. Good, Esquire - ID #64316 Darryl J. Liguori, Esquire- ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Petitioner ra 0 c; n j? -ji 97 ? Sc ' 1 NORMAN MORACE, IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. CI-04-2854 MUSSER & ASSOCIATES, INC., t/a CIVIL ACTION - LAW FETTERVILLE SALES, Defendant. PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Peter M. Good and Darryl J. Liguori, counsel for the plaintiff in the above action, respectfully represent that: 1. The above-captioned action is at issue. 2. The claim of the plaintiff in the action is $50,000. WHEREFORE, your petitioners pray your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. SMIGEL, ANDERSON & SACKS, L.L.P. BY: 0j 4 Peter M. Good, Esquire I.D. Number: 64316 Darryl J. Liguori, Esquire ID Number: 91715 River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff NORMAN MORACE, IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 04-2854 MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, CIVIL ACTION - LAW Defendant. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, hereby certify that I have served a true and correct copy of the Petition for the Appointment of Arbitrators upon counsel as addressed below by depositing the same in the U.S. Mail, first class, postage prepaid, on this 9 day of August, 2007: Melvin H. Hess Gibbel, Kraybill & Hess 41 East Orange Street Lancaster, PA 17602 SMIGEL, ANDERSON & SACKS, LLP By: DJ ? ?'D Peter M. Good, Esquire I.D. Number: 64316 Darryl J. Liguori, Esquire ID Number: 91715 River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff O a C'? t I r-? w N can C) r 7 t `7? e low NORMAN MORACE, Plaintiff, V. MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. CI-04-2854 CIVIL ACTION - LAW PRAECIPE TO WITHDRAWAL FROM LIST FOR TRIAL To the Prothonotary: Please withdraw my demand for a jury trial in the above-captioned action and place this matter on the arbitration list. Counsel for all parties agree to the withdrawal and to the transfer of this matter to the arbitration list. SMIGEL, ANDERSON & SACKS, L.L.P. By: Peter M. Good, Esquire I.D. Number: 64316 Darryl J. Liguori, Esquire ID Number: 91715 River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff a - NORMAN MORACE, Plaintiff, V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-2854 MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, CIVIL ACTION - LAW Defendant. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, hereby certify that I have served a true and correct copy of the Praecipe to Withdrawal from List for Trial upon counsel as addressed below by depositing the same in the U.S. Mail, first class, postage prepaid, on this 5 day of August, 2007: Melvin H. Hess Gibbel, Kraybill & Hess 41 East Orange Street Lancaster, PA 17602 SMIGEL, ANDERSON & SACKS, LLP By: CDJ 4 t"j Peter M. Good, Esquire I.D. Number: 64316 Darryl J. Liguori, Esquire ID Number: 91715 River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff n ^' Z??? r? _: ? {{?+? ?i ....,i' G? ' 'is -. ?.%(i ? Y ? J 1 V ?A } e ? .-_ ? L i f '` NORMAN MORALE, : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. @1-04-2854 MUSSER & ASSOCIATES, INC., t/a CIVIL ACTION - LAW FETTERVILLE SALES, Defendant. ORDER OF COURT AND NOW, 11, 200__j in consideration of the foregoing petition, r\ A .1 W? A. 4m Esq ., ? and ?? 0 s q•, are appointed arbitrators in the above captioned action as prayed for. the Co ? Gv1 J. 1 Distribution : Peter M. Good, Esquire, Smigel, Anderson & Sacks, LLP, 4431 North Front Street, Harrisburg, PA 17110 (counsel for Plaintiff) Melvin H. Hess, Esquire, Gibbel, Kraybill & Hess, 41 East Orange Street, Lancaster, PA 17602 (counsel for Defendant) ' ?op1 1l 0 NORMAN MORALE, Plaintiff v MUSSER & ASSOCIATES, INC.,: t/a FETTERVILLE SALES, Defendant #14 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 04-2854 CIVIL TERM IN RE: CASE STRICKEN FROM LIST ORDER OF COURT AND NOW, this 21st day of August, 2007, the above-captioned case having not been called for trial during the call of the civil trial list, it is stricken from the trial list. .4arryl J. Liguori, Esquire River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1709 For Plaintiff elvin H. Hess, Esquire Timothy E. Shawaryn, Esquire 41 E. Orange Street Lancaster, PA 17602-2846 For Defendant Court Administrator :mae y By the Court, 91 : R 1 Wa $2 O V t00Z AWt`JNCF? Oldd *-3Hl d0 01±40-0,3113 &d"l *41 1?aR Plaintiff A2 0( sS',,L C. z YL L4= Defendant S;IP-z-as' Oath In The Court of Common Pleas of Cumberland County, Pennsylvania No.?= Civil Action - Law. We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this'Commonwealth and that we will discharge the duties of our office with fi&4li y Signature Signature Signature < -? Name (Chairman) Name Name ?UC?Qr1? llati? t ?Gl.?rtf zoih?1(1_ A 'Ad Law Firm Law Firm Law Firm /?,.?, /?f '-' lid ???? ?d ISM Sf ? ??l. sty, 1,4 1703 Address Address Address r (:?, c I-Szell, /?? 4 1720. City, Zip City, Zip city, zip #9490053 3 # 155x7 # 1aoat? Award We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) . Arbitrator, diss s. Insert name if applicable.) Date of Hearing: ! 1 1 I t Iarl_ ?i t-s , - <` C? (Chairman) 4 Date of Award: 11) Id 1-7 ( ( Notice of Entry of A T Now, the 3ptl? day of "y, , 20_p7 , at I/ -A,3 , -A-.M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: $ 350.00 Sy: Prothonotary Deputy J . . r Lod- C?IP,S pr; Mel"'" DIGS ?P??" SMIGEL, ANDERSON & SACKS, L.L.P. River Chase Office Center 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 (717) 234-2401 Peter M. Good, Esquire pgood@sasllp.com Darryl J. Liguori, Esquire dliguori@sasllp.com Attorneys for Plaintiff NORMAN MORACE, Plaintiff, V. MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. CI-04-2854 : CIVIL ACTION - LAW : ARBITRATION PRAECIPE TO SATISFY JUDGMENT TO THE PROTHONOTARY: Please mark the judgment in the above-referenced action "satisfied," d ?sca???nk> `i- eAded . SMIGEL, ANDERSON & SACKS, L.L.P. Date: By: ?zo d - Peter M. Good, Esquire - ID #64316 Darryl J. Liguori, Esquire - ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attornevs for Plaintiff e 1-, NORMAN MORACE, Plaintiff, V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-2854 MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, CIVIL ACTION - LAW Defendant. ARBITRATION CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, hereby certify that I have served a true and correct copy of the foregoing document upon counsel as addressed below by depositing the same in the U.S. Mail, first class, postage prepaid, on this day: Melvin H. Hess Gibbel, Kraybill & Hess 41 East Orange Street Lancaster, PA 17602 SMIGEL, ANDERSON & SACKS, LLP Date: By: /ov Peter M. Good, squire - ID #64316 Darryl J. Liguori, Esquire - ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff ? ? ? -r3 ?: ? ?? 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