HomeMy WebLinkAbout04-3752
v.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
; No. 2004 - 315d.. CIVIL TERM
ANDREW W. HASCO and
CAROL RASCO, Husband and Wife,
Plaintiffs
B-DRY SYSTEMS OF BLUE
RIDGE, LLC
: CIVIL ACTION - LAW
Defendant
: JURY TRIAL DEMANDED
PRAECIPE FOR ISSUANCE OF A WRIT OF SUMMONS
TO CURTIS R. LONG, PROTHONOTARY:
Please issue a Writ of Summons against the Defendant, B-Dry Systems of Blue Ridge,
LLC, and enter my appearance on behalf of the plaintiffs. Andrew W. Hasco and Carol Hasco.
The Defendant's corporate filing address is as follows:
B-Dry Systems of Blue Ridge, LLC
1146 Colonel Joshua Court
Westminster, MD 21147
Respectfully submitted,
IRWIN & McKNIGHT
By: ~tZ~ Ij~ /IJk
Douglas [' Miller, Esquire
Supreme Court LD. No.: 83776
60 West Pomfret Street
Carlisle, PA 17013
(717) 249-2353
July 30, 2004
To: B-Dry Systems of Blue Ridge, LLC
You are hereby notified that Andrew W. Hasco and Carol Hasco, plaintiffs. have
commenced an action against you which you are required to defend or a default judgment may
be entered against you.
Is! C'j/l~.;? l/JItff
PROTHoNOTARY
Da")~ '0 ,2004
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ANDREW W. HASCO and
CAROL BASCO, Husband and Wife,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
: No. 2004 - 3752 CIVIL TERM
B-DRY SYSTEMS OF BLUE
RIDGE, LLC
: CIVIL ACTION . LAW
Defendant
: JURY TRIAL DEMANDED
AFFIDAVIT OF SERVICE OF WRIT OF SUMMONS
COMMONWEALTH OF PENNSYLVANIA
: SS:
COUNTY OF CUMBERLAND
NOW, Douglas Miller, Esquire, being duly sworn according to law, does depose and state:
I. That he is a competent adult and attorney for the Plaintiffs in the captioned action.
2. That a copy of the Writ of Summons was served upon the defendant, B-Dry Systems
of Blue Ridge, LLC, on August 2, 2004 by certified mail, return receipt requested,
addressed to B-Dry Systems of Blue Ridge, LLC, 1146 Colonel Joshua Court,
Westminster, MD 21147, with return receipt number 7002 0860 0000 10743202.
3. That the said receipt for certified mail is signed and attached hereto and made a part
hereof.
I verify that the statements made in this affidavit are true and correct. I understand that false
statements herein made are subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn
falsification to authorities.
IRWIN & McKNIGHT
Date: S-I7-0Lf
BY:'-~llU~"~
~ler, Esquire
Supreme Court Id # 83776
60 West Pomfre't Street
Carlisle, PA 17013
(717) 249-2353
Attorney for Plaintiffs
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ANDREW W. HASCO and
CAROL HASCO, husband and wife,
Plaintiffs,
v.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
No. 2004 - 3752, CIVIL TERM
B-DRY SYSTEMS OF BLUE
RIDGE, LLC,
CIVIL ACTION - LAW
Defendant.
: JURY TRIAL DEMANDED
NOTICE TO DEFEND
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, order 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 money claimed in the complaint or for any other claim or relief
requested by the plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, P A 17013
(717) 249-3166
800-990-9108
Americans with Disabilities
Act of 1990
The Court of Common Pleas of Cumberland County is required by law to comply with the
Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable
accommodations available to disabled individuals having business before the court, please contact our
office. All arrangements must be made at least 72 hours prior to any hearing or business before the court.
You must attend the scheduled conference or hearing.
ANDREW W. HASCO and
CAROL HASCO, husband and wife,
Plaintiffs,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
: No. 2004 - 3752, CIVIL TERM
B-DRY SYSTEMS OF BLUE
RIDGE, LLC,
: CIVIL ACTION - LAW
Defendant.
: JURY TRIAL DEMANDED
COMPLAINT
AND NOW, this IO~ay of November, 2004, come the Plaintiffs, ANDREW W.
RASCO and CAROL HASCO, husband and wife, by and through their attorneys, Irwin &
McKnight, and make the following Complaint against the Defendant, B-DRY SYSTEMS OF
BLUE RIDGE, LLC, averring as follows:
1. Plaintiffs are Andrew W. Hasco and Carol Hasco, husband and wife, adult
individuals principally residing at 1827 West Lisburn Road, Carlisle, Pennsylvania 17013.
2. Defendant is B-Dry Systems of Blue Ridge, LLC, a Maryland business with its
principal place of business at 10210 Governor Lane Boulevard, Suite 2008B, Williamsport,
Maryland 21795.
3. At times relevant hereto, Defendant B-Dry held itself out to be in the business of
retail sale and installation of waterproofing systems for basements.
4. On or about July 7, 2003, Plaintiffs received an initial proposal from a
representative of Defendant B-Dry for the purchase and installation of a waterproofing system in
the basement of their principal residence. A true and correct copy of the proposal from
Defendant is attached hereto and incorporated herein as Exhibit "A."
5. As noted on Exhibit "A," the condition of the Plaintiffs' basement at that time
included water in the walls, over the footers, and through floor cracks.
6. Plaintiffs elected not to have full sheets of rigid sealer installed, as well as certain
other modifications agreed to by the parties, and so on or about September 11, 2003, Plaintiffs
paid Defendants the sum of Ten Thousand Seven Hundred Seventy-One and no/1 00
($10,771.00) Dollars.
7. Defendant, through its authorized agents and employees, installed the
waterproofing system at Plaintiffs' principal residence in September 2003.
8. Plaintiffs subsequently received a written warranty that provided in pertinent part
that all areas waterproofed with the B-Dry System would be "free from water leakage for THE
FULL LIFE OF THE STRUCTURE." A true and correct copy of the warranty from
Defendant is attached hereto and incorporated herein as Exhibit "B."
9. Immediately following completion of the work by the agents and employees of
Defendant, Plaintiffs noticed that water was still present and continuing to flow into their
basement.
10. Plaintiffs contacted Defendant and were assured by its representatives that they
would return and make any necessary repairs to provide Plaintiffs with a dry basement.
11. Defendant, by and through its authorized agents and employees, made numerous
additional attempts to repair and expand the waterproofing system in Plaintiffs' basement.
2
12. These additional attempts at repair and expansion of the waterproofing system
occurred throughout the remaining year in 2003, and into January of 2004.
13. Despite the numerous complaints by Plaintiffs and attempts to repair and expand
the waterproofing system by Defendant, Plaintiffs continue to have water presence and leakage
in their basement, as well as continued cracking and damage to the basement floor and walls.
COUNT I
BREACH OF CONTRACT & WARRANTY
14. The averments of fact alleged in paragraphs one (1) through thirteen (13) are
made a part hereof and incorporated herein by reference.
15. Despite numerous promises to the contrary, Defendant failed to deliver the dry
basement which it had represented and promised to Plaintiffs.
16. Defendant, by and through its authorized agents and employees, continued to
attempt to provide a dry basement for the Plaintiffs over several months from September 2003
into January 2004.
17. The waterproofing system of Defendant did not function as promised and was not
installed properly in that:
A. Plaintiffs continue to have cracking in their basement floor and the flow of
water into their basement despite the presence of Defendant's system and its
subsequent expansion after the failed attempts of Defendant to correct the
continuing deficiencies;
3
B. Joints or junctures in Defendant's piping system are attached with duck tape
and some do not connect at all;
C. Defendant either failed to use or used an insufficient amount of modified
stone or limestone as the stone base for their system;
D. Defendant, through its agents or representatives, represented that the rigid
sealer would connect to the piping system through a rigid vapor barrier, but no
such system was installed, and instead a thin, black plastic bag material was
used that did not even connect with the piping system;
E. Defendant improperly sloped and sized the trenching system;
F. Defendant did not properly drill "weep holes" into the concrete blocks at the
base of the basement walls;
G. Defendant failed to properly install the sump pumps used in connection with
the drainage system and at least one of the pumps needs replaced; and
H. Other related defects existed due to Defendants' failure to install the products
sold in a reasonable and workmanlike manner.
18. Defendant breached the contract with Plaintiffs by not properly installing the
waterproofing system to provide Plaintiffs with a dry basement in accordance with the parties'
contract.
19. Defendant breached its warranty by not providing to Plaintiffs a basement free
from water leakage, despite several attempts to repair and expand their system.
20. Defendant warranted its system to provide a basement free from water leakage,
and expressly and through implication warranted that its system was fit to be used for Plaintiffs'
basement water problems.
4
21. Defendant breached the contract and its warranty by not installing the proper
system needed to correct the continuing water pressure under Plaintiffs' basement floor, which
was observed by Defendant's representative on the initial work proposal.
22. This water pressure continues to cause cracking and water flow in Plaintiffs'
basement, even with the expansion of Defendant's system through its attempts at repair.
23. Despite repeated attempts, Defendant has been unable to repair and/or replace the
defective workmanship and installation of the waterproofing system.
24. Despite repeated demands, Defendants have refused and continue to refuse to
refund Plaintiffs the deposit money paid by them as part of the contract.
25. Plaintiffs have also been unable to use the majority of their basement due to the
continued presence of water, and have therefore incurred costs and expenses in the rental of a
storage unit for their personal property.
26. As a result of Defendant's breach and refusal to replace the defective
workmanship with a functioning system, Plaintiffs will be forced to hire another contractor to
replace the defective and improper system installed by Defendant.
27. As a result of Defendant's breach of contract and breach of warranty and in order
to replace Defendant's waterproofing system, Plaintiffs will incur replacement and cover costs in
excess of the sums paid to Defendant.
5
WHEREFORE, Plaintiffs respectfully request that this Court award damages against the
Defendants in an amount less than the arbitration amount of Twenty-Five Thousand and no/lOO
($25,000.00) Dollars, together with attorney fees, costs and interest as permitted by law and such
other and further relief as this Court shall deem fair, just, and proper.
COUNT II
UNJUST ENRICHMENT
28. The averments of fact alleged in items one (1) through twenty-seven (27) are
made a part hereof and incorporated herein by reference.
29. Plaintiffs have conferred benefits on Defendant by payment of their check.
30. Defendant has received and acknowledged receipt of payment by Plaintiffs.
31. Defendant has not performed satisfactory services to justify the value of the
benefit which they received from Plaintiffs.
32. It is and continues to be inequitable for Defendant to retain the payment by
Plaintiffs without satisfactorily installing a waterproofing system that functions properly and
prevents further water infiltration and damage to Plaintiffs' home.
WHEREFORE, Plaintiffs respectfully request that this Court award damages against the
Defendants in an amount less than the arbitration amount of Twenty-Five Thousand and nolI 00
($25,000.00) Dollars, together with attorney fees, costs and interest as permitted by law and such
other and further relief as this Court shall deem fair, just, and proper.
6
COUNT III
VIOLATION OF THE PENNSYLVANIA UNFAIR TRADE
PRACTICES AND CONSUMER PROTECTION LAW
33. The averments of fact alleged in items one (1) through thirty-two (32) are made a
part hereof and incorporated herein by reference.
34. In agreeing to the contract with Defendant, Plaintiffs relied upon the assurances
by Defendant's agents and employees that their basement would be dry and free from water
leakage.
35. Plaintiffs further relied upon representations by Defendant's agents and
employees that the waterproofing system sold to Plaintiffs has been used for many years, and
that the Defendant's work was of exceptional quality.
36. Defendant's agents and employees further assured Plaintiffs that the work would
be done to their satisfaction and that the products were under express and implied warranty from
the company.
37. Plaintiffs relied upon the promises, assertions and representations of Defendant's
agents and employees as inducement to agree to allow Defendant to perform the installation
work.
38. The misrepresentations by Defendant's agents and employees are in direct
violation of ~~ 201-2(4)(v), 201-2(4)(vii), 201-2(4)(ix), 201-2(4)(xiv), 201-2(4)(xv) and 201-
2(4 )(xxi) of the Pennsylvania Unfair Trade Practices and Consumer Protection Law.
7
39. Under ~ 201-9.2(a) of the Pennsylvania Unfair Trade Practices and Consumer
Protection Law, "[t]he court may, in its discretion, award up to three times the actual damages
sustained [...]."
40. Furthermore, the court "may provide such additional relief as it deems just and
proper." ~ 201-9.2(a).
41. Also under ~ 201-9.2(a), "[t]he court may award to the plaintiff, in addition to
other relief provided in this section, costs and reasonable attorney fees."
WHEREFORE, Plaintiffs respectfully request that this Court award damages against the
Defendants in an amount less than the arbitration amount of Twenty-Five Thousand and no/lOO
($25,000.00) Dollars, together with treble damages and attorneys fees against the Defendant, and
such other and further relief as this Court shall deem fair, just, and proper.
COUNT IV
VIOLATION OF THE FEDERAL
MAGNUSON-MOSS WARRANTY ACT
42. The averments of fact alleged in items one (1) through forty (40) are made a part
hereof and incorporated herein by reference.
43. Plaintiffs are "Consumers" as defined by 15 U.S.c.A. ~ 2301(3).
44. Defendant is a "Warrantor" as defined by 15 U.S.c.A. ~ 2301(5).
8
45. The purpose for which the Defendant's products and services were sold was for
personal, family and household use.
46. By the terms of the express written warranty attached hereto as Exhibit "B",
Defendant agreed to perform effective warranty repairs at no additional cost to the customer.
47. Defendant has made attempts on several occasions to comply with the terms of its
warranties, but such repair attempts have been ineffective and have not resulted in a basement
free from water leakage for Plaintiffs.
48. As a direct and proximate result of Defendant's failure to comply with the express
written warranties, Plaintiffs have suffered damages and in accordance with 15 U.S.c.A. ~
231O( d)(l), Plaintiffs are entitled to bring suit for such damages and other legal and equitable
relief.
49. Under 15 U.S.c.A. ~ 231O(d)(1), a prevailing consumer "may be allowed by the
court to recover as part of the judgment a sum equal to the aggregate amount of cost and
expenses (including attorneys' fees based on actual time expended) determined by the court to
have been reasonably incurred by the plaintiff for or in connection with the commencement and
prosecution of such action, unless the court in its discretion shall determine that such an award of
attorneys' fees would be inappropriate."
50. Plaintiffs aver that upon successfully prevailing upon the Magnuson-Moss claim
herein, all attorney fees are recoverable and are therefore demanded against Defendant.
WHEREFORE, Plaintiffs respectfully request that this Court award damages against the
Defendants in an amount less than the arbitration amount of Twenty-Five Thousand and no/lOO
9
($25,000.00) Dollars, together with attorneys fees against the Defendant, and such other and
further relief as this Court shall deem fair, just, and proper.
Respectfully Submitted,
Dated: Novmeber -.i!L, 2004
IRWIN & McKNIGHT
By: ~i{;,8!^
Supreme Court ID # 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Plaintiffs
10
VERIFICATION
The foregoing document is based upon information which has been gathered by our
counsel and ourselves in the preparation of this action. We have read the statements made in this
document and they are true and correct to the best of our knowledge, information and belief. We
understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section
4904, relating to unsworn falsification to authorities.
~ VU~~-O
ANDREW W. HASCO
Gj;)u.( 1!-(J.i){ 0
CAROL HASCO
Date:
November 10, 2004
EXHIBIT "A"
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r"~~~~~f ..... Address: /1.2 7 It/. bs6v"'/f &J
P~' ., ",,\,-?::h ~.j;.,~>: ',~ : Work Phol1e City (},R.t~1e State ?t> County . Zip l"';hl.~
:i~~';:'ci~" /~ /eG
[!~',.'.::;'. ..:.' .... ...; TO~:~~~ ~,~...b./f'~~:2~P,; Total Sq. Feet of ~:nioN
> .:.. ,...... .' ..;,'..:. ... . '~~'~eri~wall
1,;o;,''llUiCementBkii:fti .,.-; .,."..~. .' - . " ~'
r .r;,; Cai1cr8Ili ,".." :~'; ;..' . ,l .' '..' . ...' -;1 . .' @Vater over footer
," (~~Brick ;. '" ,:;.: ". . " 3. Water under footer
; ::;,.:.....: ..;; '. ." .. - (D<aterUlI'OUllh lioo, c:=ks
t~::.:;,=.. ~'.>\.~r~ ,..., ~.' -- 5, Water Through windows
.~..."j;~ . .~.".. n.\... '. , ---
~~~'~tWZ'~,{:'J.'~i';',~::: . . :>.:?: :.:' . _ 6. Roor drain backs up
:~'Er~:~'''',('~'; '.' ;':. --.- 7,
. < t- rn:=m. . . .+ ~{~HARGE OPTIONS
:,' .T..mle . ~tall Sump Pump
}>~~C::" " _ftx_Deep
::Un..6thei- '.'. :1ft, T.lnstall 9;;ityflOWDeep
". '1~~-' .'. ;~~a~1;V!:'~~ .:---..< u.
:~(.~:~:mP :: (Front) SOLUTION OPTIONS
:::'. "1&. Garage .
'., .. 17..CIoeet .' JOB PLAN INSTRUCTIONS
,:: 'f;:18:'Pon:h or P8Iio " d'
o ;:$. CnMt Spac:a . INDICA~ NUMBER OF FEET OF EACH WALL TO BE TREATED BY. 4
'. .;:2q;'~ INDICATE STAIRS BYITlJ
::.'af!=- Door i '. ..... . .c"N,DlcATe HEIGHT OF CRAWLSPACE CLEARANCE IN FEET t '.
;:,;~.' '~'''~''''.. LicenMe to u~ 8"[)~ SYSTEM. methods, materials and procedures, patent # 5,765,323,
,';. '15', aA.=, 1i,~,b, :.- .:', and, '. connect'SY', teme, .'dr8Jn(S) 10 a gravity flow discharge or sump pump an, d lo,recem,' 80t floor.
..' , Tn. c... . "''''l.~.to. ~ paro.!L.ed In a workmanlike manner In accordance with standard practice.
;, ...Walel:Tank' ", $)Ii." does' ~ c;over becking up or plugging of sewers, flood conditions or when pump is
(' 'as. .............:., " OV8rWheImed. ~'COlldet-1iioltion caUSed by high humidity or damp spot discoloration of walls,
:'~.;.'~~:~:.::, ;;:'.::::.~'~!~'ar-OUIsidewaterproofing systems. All labor and mate~lscovered by life of the
;:', ~".::'," n ~'..( ..,:~. ,. ", .~~MIt'raI1lY_ept,sump pump which is covered by a separate manufacturer's warranty/
. .:: 'tV. F,ooter ".,.' ,~,.; I!i ~'ev8nf 'serVlce _ required in an area waterproofed, the Company's sofe liability shall be to.
'e, ManoIIIhIc,... :If,':::, \:~.~, "':,~"k8ge... and." company shall not be liable for any damages that may result from
. Other ~."., .~.(.':::'~.;: U1i4 ,..~. ~ a_terns, instafled at a later date. will be priced as a new job.' , ... .,:'
. .. .,., . .'. ~i'" P,~'1"lIQIs. ~E UPON COMPLETION OF INSTALLATION OF B-DRV- SYSTEM.
~. .>:'Yt~n; .:::::':: .:<..,;,\t;('~~~:.~SERVESAS.YOURI""OICE. NO STATEMENT WILL BE ISSUED.
oJ., ", " ." ,,,' ",,"'.. ',.". :...... :'. I.~ . .
~" Joe DESCRIPTIONS:.' . ..; ..' .' . .
.: '~.:'.~tl!*~;'~i~(;-:~~~~~ " /t/.l/~a Y6#~' r/ 'fu ~'("?~
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B-DRve SYSTEM
Schedule For
1. Pay upon completion of
Installation 0( B-DRve
I,: .~tem
.. 2. Finance
(~Ires Advance Approval)
.. i:cR;dii 'Card
(Requires Advance Approval)
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at hqmeqwneiS II*.~ homeowner to 1'EIpfac8. HonieOwner to supply electrical outlet if sump pump is used. ,.'.. ' ,
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CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy
of the foregoing document upon the persons indicated below by first class United States mail,
postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
TESSA LASPIA FREDERICK, ESQUIRE
MILES 7 STOCKBRIDGE, P.c.
10 LIGHT STREET
BALTIMORE, MD 21202-1487
Date: November 10, 2004
IRWIN & McKNIGHT
~I~'e
Supreme Court I.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
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~DqSystems of Blue Ridge, LU
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DomestIc; Returri Receipt
1~1S4O
ANDREW W. HASCO AND
CAROL HASCO, HUSBAND AND WIFE,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
: No. 2004-3752, CIVIL TERM
: CIVIL ACTION-LAW
v.
B-DRY SYSTEMS OF BLUE RIDGE, LLC
DEFENDANT
NOTICE
To: ANDREW W. HASCO AND CAROL HASCO, Plaintiffs
You are hereby notified to file a written response to the enclosed Defendant's
Answer to Complaint and New Matter within twenty (20) days from service hereof or a
judgment may be entered against you.
2t ?/~
N. Kennedy, Esquire
Kennedy, PC
Law Offices
Attorney I.D. No.: 68278
P.O. Box 5100
Harrisburg, P A 1711 0-0 I 00
(717) 233-7100
Attorney for D.efendant
'*
ANDREW W. HASCO AND
CAROL HASCO, HUSBAND AND WIFE,
: IN THE COURT OF COMMON PLEAS
: CUMBERLANJI) COUNTY, PENNSYLVANIA
PLAINTIFFS
: No. 2004-37S2, CIVIL TERM
: CIVIL ACTION-LAW
v.
B-DRY SYSTEMS OF BLUE RIDGE, LLC
DEFENDANT
DEFENDANT'S ANSWER TO COMPLAINT AND NEW MATTER
AND Now, comes Defendant, B-Dry Systems of Blue Ridge, LLC ("B-Dry"), and
by and through their attorney, John N. Kennedy, Esquire, he:reby responds to the
Complaint filed by Plaintiffs' Andrew W. Rasco and Carol Hasco:
I. Admitted.
2. Admitted.
3. Admitted.
4. Admitted. By way of further response, the individual providing the initial
proposal was Michael McKelvin, President ofB-Dry. A copy of the signed contract is
attached hereto as Exhibit A.
5. Admitted.
6. Admitted.
7. Admitted in part and denied in part. It is denied any "authorized agents"
performed work for the Hascos, all individuals were employees ofB-Dry. The remaining
averments are admitted.
8. Admitted. By way of further response, the warranty further provides the
mechanism by which B-Dry complies with the warranty, which is to: "at NO
ADDITIONAL COST TO THE CUSTOMER, [B-Dry will] provide such labor and
materials as required" to render the area waterproofed to be free from leakage. The
contract also addresses the action to be taken by B-Dry in the event of water leakage.
The contract states: "In the event service is required in an area waterproofed, the
Company's sole liability is to repair the leakage, and the company shall not be liable for
any damages that may result from said leakage."
9. Defendant is without sufficient knowledge to know when Plaintiff noticed
any such water. By way of further response, Defendant never saw any water "continuing
to flow" into the basement after the initial installation of the system. Defendant did
notice water seeping into the basement through cracks in the floor, but did not see a
continuous 'flow' of water.
10. Admitted.
11. Admitted in part and denied in part. It is admitted Defendant's employees
complied with the warranty by returning to the premises and taking steps to have the
basement be free from water leakage. Specifically, the following actions were taken to
comply with the terms of the warranty and contract:
a. The initial work was completed on September 11, 2003.
b. A hurricane came through the area on September 18,2003.
c. Plaintiffs called and spoke with Michael McKelvin, President of
B-Dry, on September 23, 2003.
d. Michael McKelvin went to the Plain1iffs' residence on September
24, 2003 and performed additional work on the base:rnent.
2
e. On October 8, 2003, Mr. McKelvin called the Plaintiffs and asked
to inspect their basement following the work that had been performed. Plaintiffs
welcomed the visit. Minor seepage was discovered in an expansion cut through
the center of the floor by the home's builder.
f. As a result of the visit on October 8, Mr. McKelvin recommended
the installation of an additional 42 feet of lateral pip~:, which was installed at no
additional charge to the Plaintiffs by Mr. McKelvin lmd his father, an employee of
B-Dry, on October 16,2003.
g. Plaintiffs called Mr. McKelvin on December 11, 2003 complaining
about the sump pump, which Mr. McKelvin replaced for the Plaintiffs on the
same day at no additional charge to Plaintiffs.
h. On December 17,2003, Plaintiffs called Mr. McKelvin regarding
water seeping through the cracks in the basement.
1. On December 29,2003, employees ofB-Dry inspected the
basement and made recommendations to have the basement be free from water
leakage. Those recommendations are attached hereto as Exhibit B.
J. On January 15,2004, Mr. McKelvin arrived at the Plaintiffs'
residence to perform the recommended actions, at no additional charge to
Plaintiffs, and Plaintiffs would not let him perform the work and requested Mr.
McKelvin to leave, which he did.
The remaining averments in Paragraph II are denied.
12. Admitted in part and denied in part. It is admitted B-Dry complied with
the warranty by making improvements to the system. It is denied improvements were
3
made in January 2004 because Plaintiffs prohibited B-Dry :from performing the
recommendations made to make the basement free from water leakage.
13. Defendant is without sufficient knowledge to respond to the averments
regarding the present condition of the basement. To the extent a response is required, the
averments are denied.
COUNT I
BREACH OF CONTRACT & WAllRANTY
14. Defendant's responses in paragraphs I through 13 are made a part hereof
and incorporated herein by reference.
15. Admitted in part and denied in part. It is admitted B- Dry warranted to
make the basement free from water leakage. The remaining averments are denied.
16. Admitted in part and denied in part. It is admitted B-Dry complied with
the warranty by making improvements to the system. It is denied improvements were
made in January 2004 because Plaintiffs prohibited B-Dry from performing the
recommendations made to make the basement free from water leakage.
17. Denied.
A. Defendant is without sufficient knowledge to respond to the
averments regarding the present condition of the basement. To the extent a
response is required, the averments are denied.
B. Admitted in part and denied in part. It is admitted B-Dry used duct
tape as part of its standard operating procedure to install the system. Defendant
does not have sufficient information to respond to the averment regarding whether
the joints or junctures are connected.
4
C. Denied.
D. Admitted in part and denied in part. It is admitted B-Dry used
4ML black plastic, which helps to reduce condensation. The remaining
averments are denied.
E. Denied.
F. Denied.
G. Denied.
H. Denied.
demanded.
Specific proof regarding th(~ 'other' unidentified defects is
18. The averment is a conclusion of law to which no response is required. To
the extent a response is required, it is hereby denied.
19. The averment is a conclusion oflaw to which no response is required. To
the extent a response is required, it is hereby denied.
20. Admitted. By way of further response, the warranty. provides the
mechanism by which B-Dry complies with the warranty, which is to: "at NO
ADDITIONAL COST TO THE CUSTOMER, [B-Dry will] provide such labor and
materials as required" to render the area waterproofed to bl;: free from leakage. Plaintiffs'
actions prohibited B-Dry from meeting its obligations unde:r the warranty.
21. The averment is a conclusion of law to which no response is required. To
the extent a response is required, it is hereby denied.
22. Defendant is without sufficient knowledge to respond to the averments
regarding the present condition of the basement. To the extent a response is required, the
averments are denied.
5
34. The averment is a conclusion of law to which no response is required.
35. The averment is a conclusion oflaw to which no response is required.
36. Admitted in part and denied in part. It is admitted B-Dry's employees
informed Plaintiffs the work and services were covered under warranties. The remaining
averments are denied.
37. The averment is a conclusion of law to which no response is required.
38. The averment is a conclusion oflaw to which no response is required. To
the extent a response is required, the averments are denied.
39. The averment is a conclusion oflaw to which no response is required.
40. The averment is a conclusion of law to which no response is required.
41. The averment is a conclusion of law to which no response is required.
COUNT IV
VIOLATION OF THE FEDERAL
MAGNUSON-MOSS WARRANTY ACT
42. Defendant's responses in paragraphs 1 through 41 are made a part hereof
and incorporated herein by reference.
43. The averment is a conclusion of law to which no response is required.
44. The averment is a conclusion of law to which no response is required.
45. Admitted.
46. Admitted in part and denied in part. It is admitted B-Dry warrants to
make improvements to a system installed to allow the basement to be free from water
leakage. It is denied the warranty contains the term "effective."
47. Admitted in part and denied in part. It is admitted B-Dry has made
attempts consistent with the warranty to render the basement free from water leakage. It
7
is denied the repairs were ineffective. Defendants are without sufficient knowledge to
respond to the averment regarding the present condition of the basement.
48. The averment is a conclusion oflaw to which no response is required. To
the extent a response is required, the averments are denied.
49. The averment is a conclusion oflaw to which no response is required.
50. The averment is a conclusion oflaw to which no response is required. To
the extent a response is required, the averments are denied.
NEW MATTER
51. Defendant's responses in paragraphs 1 through 50 are made a part hereof
and incorporated herein by reference.
52. The initial work on Plaintiffs' basement was completed by B-Dry on
September 11,2003.
53. A hurricane came through the area on September 18,2003.
54. Plaintiffs called and spoke with Michael McKelvin, President ofB-Dry,
on September 23,2003.
55. Michael McKelvin went to the Plaintiffs' residence on September 24,
2003 and performed additional work on the basement.
56. On October 8, 2003, Mr. McKelvin called the Plaintiffs and asked to
inspect their basement following the work that had been pe:rformed. Plaintiffs welcomed
the visit. Minor seepage was discovered in an expansion cut through the center of the
floor by the home's builder.
8
57. As a result of the visit on October 8, Mr. McKelvin recommended the
insta~lation of an additional 42 feet of lateral pipe, which was installed at no additional
charge to the Plaintiffs by Mr. McKelvin and his father, an employee ofB-Dry, on
October 16,2003.
58. Plaintiffs called Mr. McKelvin on December 11, 2003 complaining about
the sump pump, which Mr. McKelvin replaced for the Plaintiffs on the same day at no
additional charge to Plaintiffs.
59. On December 17,2003, Plaintiffs called Mr. McKelvin regarding water
seeping through the cracks in the basement.
60. On December 29,2003, employees ofB-Dry inspected the basement and
made recommendations to have the basement be free from water leakage. Those
recommendations are attached hereto as Exhibit B.
61. On or about January 5, 2003, Mr. McKelvin sought and obtained advice
from B-Dry's corporate headquarters in Akron, Ohio regarding what steps to take in his
efforts to have the Plaintiffs' basement free from water leakage.
62. On January 15,2004, Mr. McKelvin arrived at the Plaintiffs' residence to
perform the recommended actions, at no additional charge to Plaintiffs, and Plaintiffs
would not let him perform the work and requested Mr. McKelvin to leave, which he did.
63. B-Dry performed additional work on the basement on two separate
occasions and replaced the sump pump on another occasion at no additional charge to
Plaintiffs.
. 64. B-Dry's additional work performed on the basement is what is required by
the warranty provided to Plaintiffs.
9
65. B-Dry's additional work performed on the basement is what is required by
the contract executed by Plaintiffs.
66. B-Dry was at all times ready, willing, and able to perform additional work
required to comply with the warranty.
67. Plaintiffs' neighbor began building up their property at approximately the
same time the work on the premises was being performed by B-Dry.
68. The act of building up the property by Plaintiffs' neighbor increased the
flow of water to the Plaintiffs' property.
. 69. The increase of water from the Plaintiffs' neighbors' property may have
caused additional water seepage into Plaintiffs' basement.
70. Another of Plaintiffs' neighbors has a pond on their property.
71. The existence of the neighbors' pond may increase the flow of water to the
Plaintiffs' property.
72. The increase of water from the Plaintiffs' neighbors' pond may have
caused additional water seepage into Plaintiffs' basement.
73. Plaintiffs' property is set in such a way that the home sits on the lowest
level ofthe lot and there are hills directly behind Plaintiffs' home.
74. The circumstances of the pond, the building up of the contiguous property,
and the location of Plaintiffs' home at the lowest level of the lot, have created a difficult
situation with water seepage which is more problematic than most other basement
waterproofing issues.
10
75. In light of the problems surrounding this property, B-Dry's continued
attempts at no additional charge to make the basement free from water leakage are
reasonable.
76. In light of the problems surrounding this property, the number of attempts
made by B-Dry to comply with the warranty is reasonable.
. 77. B-Dry's responses to the Plaintiffs' issues were all performed within a
reasonable time from the date B-Dry became aware of any issues.
78. In light of the problems surrounding this property, the number of times
B-Dry performed additional work to comply with the warranty was reasonable.
79. B-Dry's attempt to repair the system on January 15,2004 was reasonable.
80. In light of the problems surrounding this property, B-Dry's continued
attempts at no additional charge to make the basement free from water leakage are
consistent with the warranty.
81. B-Dry's continued attempts at no additional eharge to make the basement
free from water leakage are consistent with the contract.
. 82. Plaintiffs' prohibited B-Dry from completing additional work on the
basement on January 15,2004.
83. Plaintiffs' allowance ofB-Dry to enter the premises to perform additional
work on the premises is an implied condition to B-Dry's performance of its obligations
under the warranty.
84. Plaintiffs' allowance ofB-Dry to enter the pn~mises to perform additional
work on the premises is an implied condition to B-Dry's performance of its obligations
under the contract.
11
85. Plaintiffs' failure to allow B-Dry to perform the work required constitutes
an anticipatory repudiation of the warranty, which is a defense to performance under the
warranty.
86. Plaintiffs' failure to allow B-Dry to perform the work required constitutes
an anticipatory repudiation of the contract, which is a defense to performance under the
contract.
87. Plaintiffs' failure to allow B-Dry to perform the work required made it
impossible for B-Dry to perform its obligations under the contract and warranty, and
impossibility is an affirmative defense to Plaintiffs' allegations of breach of contract and
warranty.
WHEREFORE, Defendant prays this Honorable Court to find judgment in favor of
Defendant, dismiss the actions against the Defendant, and order other relief, such as
payments of attorney's fees and costs by Plaintiffs to Defendant, and this Court deems
appropriate.
Respectfully Submitted,
Date:
/)/3/J y
I '
KENNEDY, PC LA W OFFICES
By: ~ ./L--
hi ';:0 N. Ke~edy, Esquire
f/ Attorney I.D. No.: 68278
P.O. Box 5100
Harrisburg, PAl 711 0-0 1 00
(717) 233-7100
Attorney for Defendant
12
D,"
.~ 04 04: 22p
Michael McKelvin
~~43241 0226
p. 1
ANDREW W. HASCO AND : IN THE COURT OF COMMON PLEAS
CAROL HASCO, HUSBAND AND WIFE,: CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
: No. 2004-3752~, CIVIL TERM
: CIVIL ACTION-LAW
v.
D-DRY SYSTEMS OF BLUE RIDGE, LLC
DEFENDANT
VERIFICATION
I, the undersigned, do hereby verifY I am the President ofB-Dry Systems of Blue
Ridge, LLC, I am authorized to make the within verification; and the facts as set forth in
the foregoing Defendant's Answer and New Matter are true ~md correct to the best of my
knowledge, information, and belief. I understand any false statements therein are subject
to the penalties contained in the 18 Pa.C.S. ~ 4904, relating to unsworn falsifications to
authorities.
Date:
/zftier'
~~ / ~~/,
By: /~~ /, " ~e/'...-.--
~ Michael McKelvin
President
B-Dry Systems of Blue Ridge, LLC
-----..........
Exhibit A~
Job Plan No.
Date of Visit , JUly z ;(cJZij
Customer Name .~ .see"
Phone 7/7795/1(,(, Work Phone
~Ba5ement 0 Crawlspace Total Liner Feet of Job
DESCRIPTION
CODE
I. Walls
(~ Cement Blocks
( ) Concrete
( ) Brick
( ) Tile
( ) Other
P. Paneled
O. Drywall
E. Exposed
O. Other
II. Floor
~ Concrete
( ) Dirt
( ) Other
C. Carpet
L. Linoleum
T. Tile
W. Wood
X. Other
III. Other
~10. Basement
1 umace
12. nk
13. Floor Drains
(f.l?sump Pump
15. Windows
16. Garage
17. Closet
18. Porch or Patio
19. Crawl Space
20. Fireplace
21. Cleanout
22. Outside Door
23. Stair PlatfOJTTl
24. Commode
~. Shower or Tub
Oil Tank
7. Water Tank
28. Water Heater
29. Driveway
30.
IV. Footer Type
qf.MonolithiC
3 Footer
. Other
B-DRyt' SYSTEM
Schedule For
PooJ
Zip /7b15
/~
Address: / fc2 ?
City (Ads Ie
/'12-
County
. Total Sq. Feet of Rigid Sealer
CONDITION
(j).Nater in wall
(])Nater over footer
3. Water under footer
@Vater through floor cracks
5. Water Through windows
6. Floor drain backs up
7.
DISCHARGE OPTIONS
@Stall Sump Pump . .
_fix_Deep
T. Install gravity flow
_ftx_Deep
U.
SOLUTION OPTIONS
1.
2.
a/. bs6.Acrt
State ?I}
3.
JOB PLAN
(Back)
,i
METHOD OF PAYMENT
1. Pay upon completion of
Installation of B-ORY'"
System
2. Finance
(Requires Advance Approval)
3. Credit Card
(Requires Advance Approval)
JOB DiPTlONS'
.~?!:f:~~~ ~h~:;f~~~!;;;
~1
.:Ifo
(Front)
JOB PLAN INSTRUCTIONS
INDICATE NUMBER OF FEET OF EACH WALL TO BE TREATED BY .... .
INDICATE STAIRS BY 0:0
INDICATE HEIGHT OF CRAWLSPACE CLEARANCE IN FEET t
Ucensee to use B-DRv" SYSTEM, methods, materials and procedures, patent # 5,765,323,
and connect systems draln(s) to a gravity flow discharge or sump pump and to racement floor.
All work to be performed in a workmanlike manner In accordance with standard practice.
System does not cover backing up or plugging of sewers, flood condlitions or when pump is
overwhelmed, condensation caused by high humidity or damp spal discoloration of walls,
structural repairs or outside waterproofing systems. All labor and materl;als covered by life of the
structure warranty except sump pump which is covered by a separate rnanufacturer's warranty.
In the event service is required in an area waterproofed, the Company'!~ sole liability shall be to
repair the leakage, and the company shall not be liable for any dama!;les that may result from
said leakage. Add-on systems, [nstalled at a later date, will be priced as a new job.
PAYMENT TERMS: DUE UPON COMPLETION OF INSTALLATION (JIF B-DRye SYSTEM.
THIS JOB PLAN SERVES AS YOUR INVOICE. NO STATEMENT WILL BE ISSUED.
NOTE: Homeowner agrees to make accessible, remove and replace floor coverings. base board, and objects in area to be waterproofed or company will remove
at homeowners risk with homeowner to replace. Homeowner to supply el' . ump Is used.
~~ L/ 7f
Cost of Job
Prep work Charge (if any)
Total
Less Scheduling Fee
Pay foreman
t . d
~k-tJ IAA i-ltL1~
consultan~~'
/_q t/7 Ii
--
9220'[v2Evv
U~^la~OW lae4o~w
dSE:vO VO 20 oaa
Exhibit B
Dee '11 04 08: 27p
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ANDREW W. HASCO AND
CAROL HASCO, HUSBAND AND WIFE,
: IN THE COURT OF COMMON PLEAS
: CUMBERLANJI> COUNTY, PENNSYLVANIA
PLAINTIFFS
: No. 2004-37S2, CIVIL TERM
: CIVIL ACTION-LAW
v.
B-DRY SYSTEMS OF BLUE RIDGE, LLC
DEFENDANT
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I have served a copy of the foregoing
Defendant's Answer and New Matter, via first class United States mail, postage pre-paid,
upon the following attorney of record for Plaintiffs:
Douglas G. Miller, Esquire
Irwin & McKnight
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, PA 17013-3222
Date: ~
By:
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ANDREW W. HASCO and
CAROL HASCO, husband and wife,
Plaintiffs,
: IN THE COURT OF CO MON PLEAS OF
: CUMBERLAND COUNT , PENNSYLVANIA
v.
No. 2004 - 3752, CIVIL T
B-DRY SYSTEMS OF BLUE
RIDGE, LLC,
CIVIL ACTION. LAW
Defendant.
: JURY TRIAL DEMAND D
PLAINTIFFS' ANSWER
TO DEFENDANT'S NEW MATTER
AND NOW this 5th day of April, 2005, comes the Plaintiffs, drew W. Rasco and
Carol Rasco, by and through their attorneys, Irwin & McKnight, and respectfully file this
Answer to the Defendants' New Matter and Counterclaim, and in su port thereof aver as
follows:
51. The averments contained in the Plaintiffs' Complaint are h reby incorporated by
reference as if fully set forth below.
52. After reasonable investigation, Plaintiffs are without kno ledge or information
sufficient to form a belief as to the truth of the averments contained in pa agraph fifty-two (52)
so they are therefore specifically denied and strict proof thereof is demande at trial.
53. After reasonable investigation, Plaintiffs are without kno ledge or information
sufficient to form a belief as to the truth of the averments contained in par graph fifty-three (53)
so they are therefore specifically denied and strict proof thereof is demande at trial.
54. After reasonable investigation, Plaintiffs are without kno ledge or information
sufficient to form a belief as to the truth of the averments contained in par graph fifty-four (54)
so they are therefore specifically denied and strict proof thereof is demand d at trial. By way of
further answer, Plaintiffs had numerous conversations with Mr.
cKelvin and other
representatives of Defendant requesting that they provide a dry bas ment as promised to
Plaintiffs.
55. The averments contained in paragraph fifty-five (55) ar admitted in part and
denied in part. It is admitted that Mr. McKelvin returned to Plaintiffs residence on several
occasions and that additional work was performed which did not provid Plaintiffs with a dry
basement. The remaining averments in paragraph fifty-five (55) are speci 'cally denied and strict
proof thereof is demanded at trial.
56. The averments contained in paragraph fifty-six (56) are admitted in part and
denied in part. It is admitted that Mr. McKelvin returned to Plaintiffs residence on several
occasions and that additional work was performed which did not provid Plaintiffs with a dry
basement. The remaining averments in paragraph fifty-six (56) are specif cally denied and strict
proof thereof is demanded at trial.
57. The averments contained in paragraph fifty-seven (57) ar admitted in part and
denied in part. It is admitted that additional lateral pipe was installed hich did not provide
Plaintiffs with a dry basement. After reasonable investigation, Plaintiffs e without knowledge
or information sufficient to form a belief as to the truth of the remaining a erments contained in
paragraph fitly-seven (57) so they are therefore specifically denied and trict proof thereof is
demanded at trial.
58. The averments contained in paragraph fifty-eight (58) are admitted in part and
denied in part. It is admitted that Defendant replaced a sump pump at th Plaintiffs' residence.
After reasonable investigation, Plaintiffs are without knowledge or informa ion sufficient to form
a belief as to the truth of the remaining averments contained in paragraph f fty-eight (58) so they
are therefore specifically denied and strict proof thereof is demanded at tri I. By way of further
answer, the sump pumps were not properly installed and at least one pump eeds replaced.
59. After reasonable investigation, Plaintiffs are without kno ledge or information
sufficient to form a belief as to the truth of the averments contained in par graph fifty-nine (59)
2
so they are therefore specifically denied and strict proof thereof is deman ed at trial. By way of
further answer, Plaintiffs had numerous conversations with Mr. McKelvin and other
representatives of Defendant requesting that they provide a dry bas ment as promised to
Plaintiffs.
60. The averments contained in paragraph sixty (60) are d nied as stated. It is
admitted that representatives of Defendant made numerous recommend tions and attempts to
provide Plaintiffs with a dry basement. The remaining averments in paragraph sixty (60),
including any inference that Defendant's Exhibit B is the recommendation provided to Plaintiffs,
are specifically denied and strict proof thereof is demanded at trial.
61. After reasonable investigation, Plaintiffs are without kno ledge or information
sufficient to form a belief as to the truth of the averments contained in pa agraph sixty-one (61)
so they are therefore specifically denied and strict proof thereof is demand d at trial.
62. The averments contained in paragraph sixty-two (62) are enied as stated. It is
admitted that after numerous unsuccessful attempts to provide a dry b sement as promised,
Defendant was requested not to perform any additional work at the Plain iffs' residence, After
reasonable investigation, Plaintiffs are without knowledge or informatio sufficient to form a
belief as to the truth of the remaining averments contained in paragraph, ixty-two (62) so they
are therefore specifically denied and strict proof thereof is demanded at tri
63. The averments contained in paragraph sixty-three (63) are enied as stated. It is
admitted that Defendant made numerous attempts to provide Plaintiffs ith the dry basement
they were promised. The remaining averments in paragraph sixty-three (63) are specifically
denied and strict proof thereof is demanded at trial.
64. The averments contained in paragraph sixty-four (64) are onclusions of law to
which no response is required. To the extent that a response is requir ,the averments are
specificall y denied and strict proof thereof is demanded at trial.
3
65. The averments contained in paragraph sixty-five (65) are conclusions of law to
which no response is required. To the extent that a response is requi ed, the averments are
specifically denied and strict proof thereof is demanded at trial.
66. After reasonable investigation, Plaintiffs are without kno ledge or information
sufficient to form a belief as to the truth of the averments contained in p ragraph sixty-six (66)
so they are therefore specifically denied and strict proof thereof is deman ed at trial. By way of
further answer, Defendant was provided with nUmerous opportunities to ulfill its promise of a
dry basement as well as its other contractual duties and representations.
67. After reasonable investigation, Plaintiffs are without kno ledge or information
sufficient to form a belief as to the truth of the averments contained in par raph sixty-seven (67)
so they are therefore specifically denied and strict proof thereof is deman ed at trial. By way of
further answer, Defendant did not install the proper system needed to orrect the continuing
water pressure under Plaintiffs' basement floor, which is the primary reaso that Plaintiffs do not
have dry basement as initially promised and represented by Defendant.
68. The averments contained in paragraph sixty-eight (68) are conclusions of law to
which no response is required. To the extent that a response is requir d, the averments are
specificall y denied and strict proof thereof is demanded at trial.
69. The averments contained in paragraph sixty-nine (69) are onclusions of law to
which no response is required. To the extent that a response is requir d, the averments are
specifically denied and strict proof thereof is demanded at trial.
70. After reasonable investigation, Plaintiffs are without kno ledge or information
sufficient to form a belief as to the truth of the averments contained in par raph seventy (70) so
they are therefore specifically denied and strict proof thereof is demande at trial. By way of
further answer, Defendant did not install the proper system needed to rrect the continuing
water pressure under Plaintiffs' basement floor, which is the primary reaso that Plaintiffs do not
have dry basement as initially promised and represented by Defendant.
4
71. The averments contained in paragraph seventy-one (71) ar conclusions of law to
which no response is required. To the extent that a response is requi ed, the averments are
specifically denied and strict proof thereof is demanded at trial.
72. The averments contained in paragraph seventy-two (72) ar conclusions of law to
which no response is required. To the extent that a response is requi ed, the averments are
specifically denied and strict proof thereof is demanded at trial.
73. After reasonable investigation, Plaintiffs are without kno ledge or information
sufficient to form a belief as to the truth of the averments contained in p ragraph seventy-three
(73) so they are therefore specifically denied and strict proof thereof is emanded at trial. By
way of further answer, Defendant did not install the proper system eeded to correct the
continuing water pressure under Plaintiffs' basement floor, which is th primary reason that
Plaintiffs do not have dry basement as initially promised and represented b Defendant.
74. The averments contained in paragraph seventy-four (74) ar conclusions of law to
which no response is required. To the extent that a response is requir d, the averments are
specifically denied and strict proof thereof is demanded at trial. By w y of further answer,
Defendant did not install the proper system needed to correct the continuin water pressure under
Plaintiffs' basement floor, which is the primary reason that Plaintiffs do ot have dry basement
as initially promised and represented by Defendant.
75. The averments contained in paragraph seventy-five (75) are conclusions of law to
which no response is required. To the extent that a response is requir d, the averments are
specificall y denied and strict proof thereof is demanded at trial.
76. The averments contained in paragraph seventy-six (76) are onclusions of law to
which no response is required. To the extent that a response is requir d, the averments are
specificall y denied and strict proof thereof is demanded at trial.
5
77. The averments contained in paragraph seventy-seven (77) are conclusions of law
to which no response is required. To the extent that a response is requ red, the averments are
specific all y denied and strict proof thereof is demanded at trial.
78. The averments contained in paragraph seventy-eight (78) re conclusions of law
to which no response is required. To the extent that a response is requi ed, the averments are
specificall y denied and strict proof thereof is demanded at trial.
79. The averments contained in paragraph seventy-nine (79) ar conclusions of law to
which no response is required. To the extent that a response is requi d, the averments are
specifically denied and strict proof thereof is demanded at trial.
80. The averments contained in paragraph eighty (80) are concl sions of law to which
no response is required. To the extent that a response is required, the ave ments are specifically
denied and strict proof thereof is demanded at trial.
81. The averments contained in paragraph eighty-one (81) are conclusions of law to
which no response is required. To the extent that a response is requir d, the averments are
specific all y denied and strict proofthereof is demanded at trial.
82. The averments contained in paragraph eighty-two (82) are enied as stated. It is
admitted that after numerous unsuccessful attempts to provide a dry b sement as promised,
Defendant was requested not to perform any additional work at the Plaint ffs' residence. After
reasonable investigation, Plaintiffs are without knowledge or informatio sufficient to form a
belief as to the truth of the remaining averments contained in paragraph ei hty-two (82) so they
are therefore specifically denied and strict proof thereof is demanded at tria.
83. The averments contained in paragraph eighty-three (83) are oncIusions of law to
which no response is required. To the extent that a response is requir ,the averments are
specifically denied and strict proof thereof is demanded at trial.
6
84. The averments contained in paragraph eighty-four (84) ar conclusions of law to
which no response is required. To the extent that a response is requi ed, the averments are
specifical1y denied and strict proof thereof is demanded at trial.
85. The averments contained in paragraph eighty-five (85) ar conclusions of law to
which no response is required. To the extent that a response is requi ed, the averments are
specificaJl y denied and strict proof thereof is demanded at trial.
86. The averments contained in paragraph eighty-six (86) are conclusions of law to
which no response is required. To the extent that a response is requi d, the averments are
specifically denied and strict proof thereof is demanded at trial.
87. The averments contained in paragraph eighty-seven (87) ar conclusions of law to
which no response is required. To the extent that a response is requir d, the averments are
specifically denied and strict proof thereof is demanded at trial.
WHEREFORE, Plaintiffs respectfully request that this Hon rable Court enter a
judgment in their favor and against Defendant in this matter, and aw
Plaintiffs the relief
requested in their Complaint.
Respectfully Submitte ,
Dated: April 5, 2005
By:
Douglas . Miller, Es
Supreme Court ID No. 3776
West Pomfret Professi nal Building
60 West Pomfret Street
Carlisle, Pennsylvania 7013
(717) 249-2353
Attorney for Plaintiffs,
Andrew W. and Carol Hasco
7
CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served true and correct copy
of the foregoing document upon the persons indicated below by first cl ss United States mail,
postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
John N. Kennedy, Esquire
Kennedy, PC Law Offices
P.O. Box 5100
Harrisburg, PA 17110-0100
(Attorney for Defendant)
Date:
April 5, 2005
Douglas . Miller, Esquire
Supreme Court ID No. 83776
West Pomfret Professional Bu Iding
60 West Pomfret Street
Carlisle, Pennsylvania 17013- 222
(717) 249-2353
Attorney for Plaintiffs
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AJIlDREW W. BASCO and
CAROL BASCO, Husband and Wife,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
NO. 2004-3752
CIVIL
19
v.
B-DRY SYSTEMS OF BLUE RIDGE, LLC,
Defendant
RULE 1312.1.
The Petition for Appointment of Arbitrators shall be substantially in the following fonn:
PETITION FOR APPOINTMENT OF ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COURT:
Douglas G. Hiller , counsel for the plaintiffhl....oIlUlt in the above action {lrVlMI9R8),
respectfully represents that:
1. The above-captioned action ("1"1Il'~~") is _ at issue.
2. The claim of the plaintiff in the action is $ Less than ~i25, OpO. 00
The counterclaim of the defendant in the action is
The following attorneys are interested in the case(s) as counselor are otherwis,e disqualified to sit as arbitrators:
John N. Kennedy, Esquire and Douglas G. Hiller, Esquire
WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be
submitted.
Respectfully submitted,
AND NOW,
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ORDER OF COURT DOU~~ ~'{l',;r, Esquire
Attorney for Plaintiffs
, 19_, in consideration of the
foregoing petition,
Esq., and
actions) as prayed for.
Es,q.,
, Esq., are appointed arbitrators in the above captioned action (or
By the Court,
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ANDREW W. BAsCO and
CARoL BAsCO, Husband and Wife,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
NO. 2004-3752
CIVIL
19
v.
B-DRY SYSTEMS OF BLUE RIDGE, LLC,
Defendant
RULE 1312.1.
The Petition for Appointment of Arbitrators shall be substantially in the following fonn:
PETITION FOR APPOINTMENT OF ARBITRATORS
TO THE HONORABLE, TIlE JUDGES OF SAID COURT:
Douglas G. Miller , counsel for the plaintiff4IGfe"lIluu in the above action ll<"~J'lJu"5),
respectfully represents that:
1. The above-captioned action~) is (vel) at issue.
2. The claim of the plaintiff in the action is $ Less than $25, OPO. 00
The counterclaim of the defendant in the action is
The following attorneys are interested in the case(s) as counselor are otherwise disqualified to sit as arbitrators:
John N. Kenned , Es uire and Dou las G. Miller, Es uire
WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be
submitted.
AND NOW, ~ /3
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Esq., and .x:t vJ r:d-L
actions) as prayed for.
Respectfully submitted,
M~;tc:e~
ORDER OF COURT Dougla G. Hi ler, Esquire
Attorney for Plaintiffs
/'
, J-9.~ in consideration of the
Esq., .~J.(/ty ~{/ /
,Esq., are appointed arbitrators in the above captioned action (or
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ANDREW W. RASCO AND
CAROL RASCO, HUSBAND AND WlFE,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 2004-3752, CIVIL TERM
B-DRY SYSTEMS OF BLUE RIDGE, LLC,
Defendant
JURY TRIAL DEMANDED
PRAECIPE FOR ENTRY OF APPEARANCE
To The Prothonotary:
Kindly enter my appearance on behalf of Defendant, B-Dry Systems of Blue Ridge, LLC
in the above-referenced action.
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
Bye
Andrew orfleet, Esqui
Attorney 1.0. No. 83894
P.O. Box 5300
3211 North Front Street
Harrisburg, P A 17110-0300
(717) 238-8187
Dated:
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Attorney for Defendant
33276/-/
CERTIFICATE OF SERVICE
I, Andrew W. Norfleet, Esquire, of Metzger, Wickersham, Knauss & Erb, P.C., attorneys
for Defendant, hereby certify that I served the foregoing Praecipe for Entry of Appearance to
Plaintiffs this 'Zlday of July, 2005, by depositing the same in the United States mail, postage
prepaid, in Harrisburg, Pennsylvania, addressed to:
Douglas G. Miller, Esquire
Irwin & McKnight
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, P A 17013-3222
John N. Kennedy, Esquire
Kennedy, P.C., Law Offices
P.O. Box 5100
Harrisburg, P A 1711 0-0100
Andr W. Norfleet
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RECEIVED AUG 22 2005
In The Court of Common Pleas of Cumberland f
County, Pennsylvania Noc2Z.:.-5 ? S-:}
J) A- SC(J
Plaintiff
g- Vf,l/ ~~ dt'~
( Defendant
Oath
We d solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United
Sta s and the Constituti this Commonwealth and that we will discharge the duties of our office
. fi .~ d!;( S~)f4
120u /U/L-O (;rfJrr .~I4FF- ~Vl lr Shu!fz
Name (Chairman) Name Name
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Law Firm Law Finn
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Address
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City, Zip
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Civil Action - Law.
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LawP'
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Address
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City, Zip
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Address
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Award
We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), rnake the
following award: (Note: If damages for delay are awarded, they shall be separately stated.)
Date of Hearing:
Date of Award:
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Notice of Entry of Award
Now, the I '1 day of CJ. 'ilf' ~ ,20 o~, at d: 0 I ,:f..M., the above award was
entered upon the docket and notice ther given by mail to the parties or their attorneys.
Arbitrators' compensation to be paid upon appeal: $
;(10. <90
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By:
Deputy
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ANDREW W. HASCO and
CAROL HAS CO, husband and wife,
Plaintiffs,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
No. 2004 - 3752, CIVIL TERM
B-DRY SYSTEMS OF BLUE
RIDGE, LLC,
CIVIL ACTION - LAW
Defendant.
: JURY TRIAL DEMANDED
PRAECIPE TO SETTLE AND DISCONTINUE
TO CURTIS R. LONG, PROTHONOTARY:
Kind]y mark the above-captioned matter as settled and discontinued.
Respectfully Submitted,
IRWIN & McKNIGHT
Douglas Miller, Esquire
Supreme Court LD. No. 83776
60 West Pomfret Street
Carlisle, Pennsylvania 170] 3
(717) 249-2353
Attorney for Plaintiffs
Date: January ]2, 2006
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