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HomeMy WebLinkAbout12-3128JAMES P. SHEPPARD, ESQUIRE PA34944 2201 North Second Street ,_ , L Y f ?;= U .4 Harrisburg, PA 17110 717-232-5551 Attorney for Plaintiffs CU 116 E R'L f l'i L1 C, iC` PENN'S"'LVANL"A IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ....................................................................................................................... RICHARD F. MAFFETT, JR. and BARBARA M. MAFFETT, Plaintiffs 15 Dapp Lane L Mechanicsburg, PA 17050 NO. V ':CIVIL ACTION - LAW EME DEVELOPMENT CORPORATION, d/b/a ]JURY TRIAL DEMANDED EXCEL INTERIOR CONCEPTS & CONSTRUCTION, Defendants 570 South Third Street Lemoyne, PA 17043 ......................................................................................................................: PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue Writ of Summons in the above-captioned action against the Defendant. The Writ of Summons shall be Cumberland County 133heriff. Date: May 18, 2012 issued and forwarded to the me P. heppa d, Es ire WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFFS HAVE COMMENCED AN ACTION AGAINST YOU. Dated: 5-110019, Prothonotary ?eputy S {? /6.2 7 -2- 7 539 7 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor arxe r of t;qmbei 111 r Jll 12 Vi e! 8: I PENINSYLVA'1,IA Richard F. Maffett, Jr. VS. Case Number EME Development Corporation 2012-3128 SHERIFF'S RETURN OF SERVICE 06/01/2012 01:08 PM - Michelle Gutshall, Deputy Sheriff, who being duly swom according to law, states that on June 1, 2012 at 1308 hours, she served a true copy of the within Writ of Summons, upon the within named defendant, to wit: EME Development Corporation d/b/a Excel Interior Concepts & Construction, by making known unto Kathleen Vickroy, Controller for EME Develoopment Corporation at 570 S. Third Street, Lemoyne, Cumberland County, Pennsylvania 17043 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $44,45 June 06, 2012 MICHELLE GUTSHALL, DEPUTY SO ANSWERS, RON R ANDERSON, SHERIFF (c) CountySuite Sheriff, Teleosoft, Inc. }nr M h 1" ~ L t l.r i S~ . . IN THE COURT OF COMMON PLE;~j~~~. ~'f ~7}{(~~-i :i E ' ~T~~~ CUMBERLAND COUNTY, PENNSYLVANIA ?~l2 CCU 29 ~+~~9 !C~ C{2 RICHARD F'. MAFFETT, JR., and ~ ~~UMBEi~Lhfi~J ~~~~ ~ ~~~ BARBARA M. MAFFETT, ~ pENNSY~YA~dIA Plaintiffs, v. EME DEVELOPMENT CORPORATION, d/b/a F-,XCEL INTERIOR CONCEP"CS & CONSTRU~'TION, Defendants. Case No. 12-3128 CIVIL ACTION -LAW JURY TRIAL DEMANDED NOTICE TO PLEAD To: Richard F. Maffett, Jr. and Barbara M. Maffett; Plaintiffs You .are hereby notified to file a written response to the enclosed new matter of Defendant's Answer With New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Date: _ I ~_"Z E % ~: t Z _ ~--i~_ .James A. Diamond, Esquire, PA T.D. No. 43902 ~_/Attorney for Defendant EME Development Corporation, d/b/a Excel Interior Concepts & Construction t~o~96~u22 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA RICHARD f`. MAFFETT, JR., and BARBARA M. MAFFETT, Plaintiffs, Case No. 12-3128 v. EME DEVELOPMENT CORPORA"TION. d/b/a EXCEL INTERIOR CONCEPTS & CONSTRUCTION, Defendants. CIVIL ACTION -LAW JURY TRIAL DEMANDED DEFENDANT EME DEVELOPMENT CORPORATION'S ANSWER TO COMPLAINT WITH NEW MATTER Defendant, EME Development Corporation, dib/a Excel Interior Concepts & Construction ("Excel" or "Defendant''), by and through its attorneys, James A. Diamond, Esquire, and the law firm of Eckert Seamans Cherin &; Mellott, LLC, hereby answers the respective allegations of Plaintiffs' Complaint as follows: 1- 2 . Admitted. 3-6. Admitted in part; denied in part. Defendant admits that the document attached to the Complaint as "Exhibit A" is a true and correct copy of a Construction Agreement dated May 19, 2005 between Defendant and Plaintiffs, omitting the Plans incorporated therein.: Any interpretations or characterizations by Plaintiffs of the Construction Agreement in Paragraphs 3 through 6 of their Complaint, or attempts to quote portions out of context from such document, are denied in that the Construction A;~eement is a written document which speaks for itself and must be read as a whole. 7. :Denied. Defendant denies that the document attached as "Exhibit B" to Plaintiffs' Complaint i; a copy of a written "Change Order #1" entered into between the parties ,LOa96~oz.z; 2 May > 1, 200. Presumably due to an error by Plaintiffs in preparing their Complaint.. the attached `Exhibit B" appears to be identical to the document attached to the Complaint as "Exhibit C.'~ which on its face is a document titled as '`Specifications (Change Order #'' )" and is dated .June ;', 2005. Defendant does admit that the parties entered into a written Change Order #1 dated on car about May 31, 2005. 8. It is admitted that the document attached to Plaintiffs' Complaint as ``Exhibit C" is a true and correct copy of a portion of a written Change Order that had been titled "Specifications (Change Order #2)" entered between the parties on June 7, 2005. .Anv interpretations or characterizations by Plaintiffs of such Change Order #2, or the excerpt attached as "Exhibit C'," including any legal assertions that such portion is the only `relevant" portion, are denied in tha:ct the said Change Order #2 constitutes a written document which speaks for itself. Alternatively, the allegation concerning relevance constitutes a conclusion of law to evhich no response is required. 9. Denied as stated. The allegation in Paragraph 9 of Plaintiffs' Complaint that the particular hardwood flooring materials at issue were selected solely by Defendant's president, including any implied allegation that Plaintiffs were not involved in the materials selection process and had not approved such materials, is denied. On the contrary, the Mohawk engineered hardwood flooring was only used. after consultation with and approval by Plaintiffs. 10. .Admitted. By way of further answer, the existence of pets or children in a household is not considered in the construction industry to be an abnormal or extraordinary condition. 1 l . .Admitted. ;LOa96~oz.z; 3 1 ~ . Admitted in part; denied as stated in part. It is admitted that Plaintiffs following the installation had certain complaints about the hardwood flooring, all of which were appropriately addressed by Defendant back. at that time. The Defendant further admits that there was a written inspection report under cover letter from the manufacturer dated August l4, 2006 that took the position that there were no manufacturing; defects. The attempt by Plaintiffs in Paragraph 1' of their Complaint to characterize and summarize such written document, however, is denied on the ground that the said inspection report is a written document which speaks for itself. By way of further answer, some of the self-serving characterizations of Plaintiffs in Paragraph 1=! of their Complaint purporting to summarize the report, including for example the alleged characterization about the report confirming gaps between boards, are denied as being inconsistent with the written report itself, in that the written report itself in the section regarding the inspector's actual physical observations, as opposed to the section recounting the customer's summary of` complaints, stated "There were no gaps visible at the time of inspection." In further answer, Del~n<iant, consistent with its promises under the warranty and its standard practice of attempting to keep customers satisfied, subsequently took steps to completely tear out the original flooring that was the subject of the August 14, 2006 report and redo the entire Flooring project. 1.">- I ~l. Admitted in part; denied in part. It is admitted. that the parties in resolution of the Plaintiffs' complaints entered into the written document entitled "Specifications" that was signed by Plaintiffs on or about August 11, 2007 and by Defendant on September 10, 2007, and that a true and correct copy of such document is attached to Plaintiffs' Complaint as "Exhibit D." To the extent that Plaintiffs in Paragraphs 13 and 14 of their Complaint purport to summarize, quote out of conte~a, or characterize such document, those allegations are denied on the ground that the ,i.oa96~oaz: ,4 Specifications document attached as Bxhibit D, as well as the attached plans referred to in such document, constitute written documents which speak for themselves. By way of further answer, the said Specifications document, which prescribed specifications in detail regarding how the replacement work was to be done, was prepared by Plaintiff Richard Maffett, an attorney. 1.5. .Admitted. By way of further answer, the said document, prepared by Plaintiff, attorney Kichard Maffett, further prescribed detailed instructions and directives on how certain construction work would be performed. It further designated an independent inspector found and proposed by Plaintiffs who would review the work. 16. Admitted in part; denied as stated in part. Defendant admits that it did, in fact, perform all of the remediation in accordance with the terms agreed to between the parties. By way of furthc;r answer. all such remediation and repairs met or exceeded all manufacturer and industry standards. To the extent that Plaintiffs allegation in Paragraph 16 that the remediation was "attempted" may be intended to include any implied allegation that such work by Defendant was either not completed or unsuccessful, such implied allegation is denied as all such work was properly corripleted in accordance with manufacturer and industry standards or in accordance with the detailed directives required by Plaintiffs in the said Specifications and Addendum to Specifications. The certified floor covering inspector found and specified by Plaintiffs. Michael Quinlan, inspected and tested the warranty replacement work to make sure it was properly performed and complied with all of the special directives and specifications prescribed by Plaintiffs in the Specifications and Addendum to Specifications relating to such work. Ultimately, in or about February 2008 after a.ll adjustments and punch list items regarding such agreed-upon. work had been performed, the inspector selected by Plaintiffs gave the professional opinion. `I fi:~wld no installation related problems with the flooring inspected." B~ wav of ~L0496?02.2; further answer, Defendant thereafter did not received any requests for additional warranty work. regarding the floor installation prior to when Attorney Richard Maffett, one of the Plaintiffs, sent a letter in 2012 demanding that Defendant pay $23,365.50 so that Plaintiffs could have a third- party remove and replace the entire hardwood floor. Prior to that, in or about September 2010, Defendant dial receive from the manufacturer a copy of an independent inspection report of a September ? O 10 inspection, due to a complaint by Plaintiffs that the materials had a manuf=acturing defect. A true and correct copy of that report, under letter from the manufacturer to the Defendant dated September 30, 2010, is attached hereto as `'Exhibit 1" and incorporated herein by reference. As noted in that report, the primary focus of the complaints of the Plaintiffs at that time related to the factory finish of the hardwood and scratching from their dogs. Regarding the primary complaint about the surface of the hardwood flooring, the independent inspection concluded that Plaintiffs' complaints in this regard were a result of Plaintiffs own neglect and lack of care. stating ``The floor is showing signs of heavy use. scratching from the dogs, and lack of adequate finish maintenance." It also noted that the floor was in parts exposed to "unknow~n~. agents'" resulting in certain gray coloring; in areas and that this damage from such unknown substances made the impacted areas "less able to resist the forces of use to which. this floor has been subjected." The report also noted that hardwood floors in other parts of the home aside from the areas installed by Defendant also had `'severely deteriorated and damaged surfaces.' 1 "~. The allegations of Plaintiffs in Paragraph 17 of their Complaint, which purport to relate to cun•ent conditions in Plaintiffs' hardwood flooring, are denied on the ground that Defendant, ~~~~hr.ch does not currently have access to the property, has insufficient knowledge or information i:o determine the truth or falsity of such allegations. By way of further answer, (L0496?02 ?; 6 however, Defendant has never refused to perform any required warranty work and has at all. relevant times stood ready to perform any requested warranty work with respect to legitimate issues covered by the warranty. Indeed, Defendant already once fully replaced the entire floor project, which replacement was subsequently approved as properly done by the independent inspector selected by Plaintiffs in cormection with the settlement and resolution proposed by Plaintiffs, and ,agreed to by Defendant, in the said Specifications and Addendum to Specifications regarding the 2008 remediation work. 18. Denied. Defendant's installation was proper and in accordance with the parties' agreements. 19. Denied. The allegations in P:~ragraph l9 are denied in that there is no basis for the stated conclusion that the hardwood floor materials were unfit or inappropriate for the intended residential use. On the contrary, Defendant had every reason to believe that the highly respected Mohawk brand high quality engineered hardwood floor materials were appropriate. By way of further answer, such materials were in accordance with the specifications agreed to by Plaintiffs, 20. Denied. Defendant has insufficient knowledge or information to determine the authenticity of the alleged estimate of a third-party attached as Exhibit F to the Complaint and objects to a~~y such item as also being irrelevant, as well as hearsay, since nothing for which Defendant is responsible would require the complete removal and replacement of the entire flooring by ,:~ third party. By way of further answer, although Defendant as of this point has not been requested to perform any work, or shown evidence of any legitimate current complaints, that would have been covered by its limited gapping and buckling warranty provided for under the parties' settlement in the Specifications document and Addendum thereto attached to the L0496~U?.2 ; ~] Complaint pis Exhibit D and Exhibit E, if there turn oust to be any such problems that are shown to Defendant and that are covered by the warranty, Defendant stands ready to correct them in accordance with said warranty. Any gapping or buckling, if there ever were any, would not: require a replacement of the entire floor. Defendant believes, and therefore avers, however, that Plaintiffs' claim is in bad faith and is an attempt by Plaintiffs to obtain a replacement of the entire floor because, due to their own neglect and misuse, they have damaged and scratched the surface. and know full well that such damage by them is not covered by Defendant's warranty and does not constitute a breach of any contractual obligation or other duty owed by Defendant to Plaintiffs. 21. Denied. Defendant does not have sufficient information to determine the truth of Plaintiffs' allegation regarding the cost of moving certain. furniture. By way of further answer, Defendant i~ not aware of any issue of any kind for which Defendant could be responsible that would rewired Plaintiffs to bear the costs of moving any furniture. To the extent that Plaintiffs wish to replace their hardwood flooring for reasons unrelated to Defendant, such allegation is irrelevant to Plaintiffs' Complaint. COUNT I: BREACH OF CONTRACT 2?. Defendant incorporates by reference its responses above to Paragraph 1 through 21 of the Complaint as though fully set forth herein at length. 23. Admitted. By way of further answer, Defendant, in fact, did satisfy such obligations. 2~. Denied. Defendant has at all relevant times properly responded in accordance with its contractual obligations, and even beyond that, to all complaints and demands of Plaintiffs regarding alleged defects covered by the warranty. Defendant did, in fact, deliver to L0496'02 2 ~$ Plaintiffs good and workmanlike results all in accordance with the parties' agreement. By way of further answer, Defendant has at all relevant times made it clear that it stood ready to address any covered warranty issues. Plaintiffs, however, have indicated that they were refusing to provide Defendant any reasonable opportunity to further review any new alleged issues or to do any warrant~~ work, and instead were insisting on replacing the entire floor through. a third party. Defendant believes and therefore avers that the motivation for this unreasonable conduct by Plaintiffs is to have someone else pay to replace the damaged surfaces and finishes of the floor that were caused by Plaintiffs' own neglect and misuse. Defendant notes in this regard that the documented focus of Plaintiffs' complaints as of September 2010, two years after the remediation warranty work, and almost five years after the initial construction project, was on the scratches and damages to the finish of the hardwood, which the independent inspection at that time concluded was not due to any defect or problems in the materials. In further. answer, the hardwood product at issue had an advanced and durable factory applied finish. 25- 7. The allegations in Paragraphs 25 through 27 of the Complaint regarding alleged contractual breaches constitute conclusions of law to which no response is required, In the event that this court deems a response necessary, such allegations are denied. On the contrary, Defendant, as Plaintiffs are well aware, reasonably took all steps to redo work in accordance with the directives and specifications set forth in the said Specifications document and Addendum tc~~ Specifications document. Defendant is not aware of any currently existing problems covered by the gapping and buckling warranty, but if in fact there are any legitimate covered warranty items, Defendant continues to stand ready to appropriately correct such items, and this has been repeatedly made clear to Plaintiffs. Defendant, however, does not agree to pay for a complete replacement of the flooring by a third party to address major areas of surface and L04967~~?.2 ; 9 finish damage by Plaintiffs' misuse and neglect as such damage is not covered by the said warranty and is not the responsibility of Defendant. Regarding the specific allegation of a failure to remediate~ `'moisture content,'' such allegation is specifically denied in that the independent inspector's certification at the time of the remediation work by the inspector selected and required for us~,e by Plaintiffs, M.J. Quinlan Inspection Service, documented the independent moisture testing and concluded and certified that all moisture readings were well within acceptable standards. The September 2010 independent inspection report similarly reconfirmed, '`There were no indications of any moisture related issues with this installation.'' Moreover, regarding any still outstanding warranty, Defendant notes that such warranty by the c;ontractor, as opposed to any manufacturer's warranty, is limited solely to gapping and buckling not to the factory finisih. 28. The allegations in Paragraph 28 constitute conclusions of law to which no response is required. If a response is required, such allegations are denied in that Defendant did not breach its agreements. COUNT II: BREACH OF WARRANTY 29. Defendant incorporates by reference its responses above to Paragraphs 1 through 28 of the Complaint herein as fully as though set forth at length. 30. Admitted in part; denied in part as stated. Defendant admits that it was at times party to the warranties in Exhibits A and D. Any attempts by Plaintiffs in Paragraph 30 to characterize or summarize such warranties, however, are denied on the ground that such warranties are in writing and such written documents speak for themselves. By way of further answer, Defendant notes that the broader five year limited warranty set forth in the Mav 19, 2005 Construction Agreement had expired long before the filing of the Complaint in the above- ~oa9~; o~? ~ 10 captioned case. The warranty provided as a settlement in the Exhibit D document.. as drafted by Attorney Richard Maffett, is only a "warranty against gapping and buckling of the hardwood until December 2015, except if caused. by flooding and/or homeowner neglect." Defendant has indicated, and continues to indicate, that it stands ready to fulfill any such correcti~~e work in the event of anv gapping or buckling covered by such warranty. Plaintiffs have made it clear that Plaintiffs do not intend to provide Defendant with any opportunity to determine whether there is any covered warranty work or to do .any such warranty work if there are any covered defects. Instead, Plaintiiffs have made it clear that they are really looking to get a new floor. not to~ address any alleged minor gapping or buckling issues. 31. Admitted in part; denied in part. It is admitted that Plaintiffs have fulfilled all of their obligations in the sense that they have made all proper payments under the agreements with Defendant. To the extent that Plaintiffs in the above-captioned action are attempting to claim that there is some sort of defect covered by Defendants' special extended gapping and buckling warranty, however, it is denied that Plaintiffs have fulfilled any obligations to give Defendant a reasonable opportunity to perform such work. 32. Admitted in part; denied in part. To the extent that Plaintiffs allegations in Paragraph ~:', encompass an averment that Plaintiffs back prior to the 2008 remediation work had promptly notified the Defendant of certain claimed defects, all of which were subsequently corrected by Defendant in accordance with the warranty, it is admitted. All other allegations implied by Paragraph 32 of Plaintiffs' Complaint are denied. In this regard, the extent that such allegations n~iay contain an implied averment: that Plaintiffs were continuously notifying Defendant of some sort of claimed defects covered by the warranty throughout the intewening L0496702.2; 1 1 years after the remediation work in ~ 008, it is denied. By way of further answer, Defendant hereby incorporates by reference it allegations in Paragraph 16 above. 33. The allegation in Paragraph 33 of Plaintiffs' Complaint constitutes a conclusion of law to which no response is required. If a response is deemed necessary by this Court, such allegation is denied on the ground that Defendant did not breach any warranties given to Plaintiffs. COUNT [lI: BREACH OF IMPLIED WARRANTIES OF FITNESS, MERCHANTABILITY AND HABITABILITY 34. Defendant incorporates by reference its responses to Paragraphs 1 through 33 of the Complaint above as fully as though set forth at length herein. 35.-:i6. The allegations in Paragraphs 35 and 36 of Plaintiffs' Complaint constitute conclusions of law to which no response is required. If a response is required, such allegations are denied to the extent they may be intended to suggest that any implied warranties continue beyond the stated five year period set forth in the wan•anty document included as part of ]Exhibit A to Plaintiffs' Complaint. On the contrary, such document expressly stated, in pertinent part, that "ALL IMPLIED WARRANTIES ARE LIMITED IN DURATION TO "THE FIVE (5) YEAR WARRANTY PERIOD PROVIDED FOR HEREIN. ACCORDINGLY, ANY SUCH IMPLIED ~'~'ARRANTIES, INCLUDING N[ERCHANTABILITY, FITNESS FOK A PARTICt:JLAF: PURPOSE, OR OTHERWISE, ARE DISCLAIMED IN THEIR ENTIRI?TY AFTF_,R THE EXPIRATION OF THE FIVE (5) YEAR WARRANTY PERIOD ...." 37-38. Denied. On the contrary, as set forth above, Defendant properly performed all of its obligations under the said Construction Agreement and warranties to the extent it was made aware of and covered issues and given the opportunity to address them. L0496'02.'i I2 39. Denied. Defendant domes any implied allegation that there are any defects or deficiencies that would breach any implied warranties even. if they did apply. Plaintiffs" allegations i:hat there are alleged breaches of implied warranties of fitness, merchantability and habitability constitute conclusions of law to which no response is necessary. If any response is deemed required by this court, such allegations are denied in that the addition and all work as completed was habitable and fit for its intended purpose and was all in compliance with Defendant's agreements with Plaintiffs. COUNT IV: NEGLIGENCE 39. Defendant incorporates by reference its responses to Paragraphs 1 through 38 of the Complaint above as fully as though herein set forth at length. 40.-44. The allegations in Paragraphs 40 through 44 of Plaintiffs' Complaint constitute general conclusions of law to which no response is necessary. 4:~. The allegations in Paragraph 45 of Plaintiffs' Complaint alleging that Defendant breached certain legal duties constitute conclusions of law to which no response is regcured. If a response is +~eemed necessary, such allegations are denied in that Defendant concluded its work in a good and workmanlike fashion and in conformity with generally accepted standards of the construction trades and in accordance with its agreements with Plaintiffs. COUN"I V: VIOLATION OF PENNSYLVANIA'S UNFAIR TRADE PRACTICE AND CONSUMER PROTECTION LAW 4fi. Defendant incorporates by reference its responses to Paragraphs l through 45 of the Complaint ,above as fully as though herein set forth at length. 47.-`?. The allegations in Paragraphs 47 through 52 all constitute general conclusions of law to which no response is required. ~oa96;o~.z; 13 53. The allegation in Paragraph S3 asserting a conclusion that Defendant engaged in "unfair and.%~or defective practices" prohibited by the UTTCPL constitutes a conclusion of law to which no response is necessary. To the extent this court deems a response to be required, such allegation is denied in that Defendant did nat make any misrepresentations regarding the materials used or deviate from the specifications agreed to by Plaintiffs for such materials in the contract and. Defendant did in all respects comply in good faith with its obligations under the Construction Agreement. Plaintiffs' cause of action is asserted in bad faith by Plaintiffs. 54. The allegation in Paragraph 54 constihztes a conclusion of law to which no response is necessary. COUN"C VI: NEGLIGENT MISREPRESENTATION 55. Defendant incorporates by reference its responses to Paragraphs 1 through 54 of the Complaint above as fully as though herein set forth at length. 56. The allegation in Paragraph 56 of the Complaint states a conclusion of law to which no response is necessary. ~7. Denied. On the contrary, Defendant is not aware of, and certainly had no reason to know of. an_y defects in connection with the quality of the hardwood product used in accordance with the specifications selected and agreed to by Plaintiffs or in connection with the installation c~~f such hardwood flooring. ~8. Denied. To the extent: that the allegation in Paragraph 58 of Plaintiffs' Complaint appears to inchzde an implied suggestion that there were some defects in the hardwood materials produced b} Mohawk Industries, Inc., such allegation is denied on the ground that Defendant does not have sufficient information to determine the truth or falsity of such allegation and has not been. provided with information from Plaintiffs that appears to in any way support any such L0496"02.2; 14 allegation.. On the contrary, all of the various independent inspection reports appear to have clearly concluded that there were no material defects of any kind regarding the Mohawk flooring materials a issue. Moreover, to the extent that the vague allegation in Paragraph ~8 appears to suggest that. Defendant knew of some sort of unspecified defects in such materials., it is denied in that Defendant. is not aware of any defect and various third party inspectors have determined that there is no such defect. 59.-~~0. Denied. To the extent that the allegations in Paragraphs 59 and 60 appear to imply that there was some sort of unspecified false representation made to Plaintiffs by Defendant regarding some aspect of the quality or installation of the Mohawk hardwood flooring, it is denied in that Defenda~it made no false representations about such subjects. It is impossible for Defendant to more specifically address such allegations since they include no averment of any specific representation, statement, document, or information that was allegedly provided to Plaintiffs by Defendant that was false or misleading. By way of further answer, regarding the self-serving allegation by Plaintiffs in Paragraph 60 of their Complaint that they would not have installed the type of iaooring in their residence if it were not for the phantom unspecified "misrepresentation," Defendant notes that. the Plaintiffs, as is reflected in the very Exhibit F that they attached to their Complaint regarding their allegations about the new flooring that they now wish to have installed in replacement of the current flooring, are demanding the use of "tike kind and quality wood flooring." This is incompatible with the allegation in Paragraph F,il of Plaintiffs' Complaint and reflects that: the Complaint is in bad faith and i:; really intended as ~~. b,asis to extort from Defendant an entire new replacement flooring project to address die damage to the surface by Plaintiffs' own misuse and neglect. [.0496?02.2; 15 WHEREFORE, Defendant respectfully requests that this Honorable Court enter judgment in its favor, ,and against Plaintiffs, and dismiss the Complaint, awarding such other relief as it deems just and appropriate. NEW MATTER In fizrther answer to Plaintiffs' Complaint, Defendant avers the following new matter: 61. Defendant incorporates by reference its responses above to Paragraphs 1 through 60 of Plaintiffs' Complaint as fully as though set forth at length. 62. Some or all of Plainti ffs' claims are barred by the applicable statute of l imitations or Iaches. 6~. Plaintiffs' Complaint in part seeks damages from Defendant alleging negligence or negligent. misrepresentations or other tortious conduct at the time that the flooring product was selected prier to its 2005 installation and or in connection with various alleged events more than. two years prior to the date of the filing of the above-captioned action. 64. The alleged defects and issues, all of which are denied by Defendant, are of a nature that il~they would have been true would have to have been discoverable in the exercise of reasonable diligence by Plaintiffs shortly after the 2008 reinstallation of the floor. 65. The applicable Pennsylvania statute of limitations governing suits on causes of action founded on negligent, intentional, or otherwise tortious conduct requires that a suit on such a cause of action be commenced within two year~~s of the date on which the cause of action accrued. See, Ems, 42 Pa. C.S. § 5524. ~oa96?oz2, 16 66. Plaintiffs' above captioned suit was not commenced within two years of the alleged conduct, acts, or omissions upon which Plaintiffs purport to base their causes of action founded on theories of tort. 67. Plaintiffs' action to the extent. asserting causes of action based on alleged tortious conduct of I:~efendant is accordingly barred by the applicable statute of limitations. 613. Similarly, with respect to Plaintiffs' alleged causes of action based on contractual theories, sor~~ie or all of Plaintiffs' claims, to the extent the claims purport to be based on alleged breaches occurring more than four years prior to the filing by Plaintiffs of their action in 2012, are barred by the applicable Pennsylvania statute of limitations, 42 Pa. C.S. § 5525. ~~~hich requires that actions on such claims be commenced within four years. 69. Some or all of Plaintiffs claims are barred under the Doctrine of Lac.hes. 70. Some or all of Plaintiffs' claims are barred by the doctrines of contributory negligence and/or comparative negligence. In this regard, some or all of the alleged issues concerning Plaintiffs' hardwood floor are the result of Plaintiffs' misuse and neglect. 71. Some or all of Plaintiffs' alleged causes of action, including all causes of action based on the parties" Construction A€;reement, including the warranty provisions thereunder, are barred by Plaintiffs' failure to exhaust mandatory arbitration. 72. Some or all of Plaintiffs' claims asserted in the above-captioned action. are barred by their. voluntary assumption of risk. 73. Some or all of Plaintiffs' claims set forth in the above-captioned action are barred by Plaintiffs° failure or refusal to permit Defendant a reasonable opportunity to attempt to assess and/or address any alleged defects or issues claimed by Plaintiffs to be covered by any applicable warranty or ~.;ontractual obligation of Defendant. L04967O2.2; 1 74. Some or all of Plaintiffs" claims asserted in the above-captioned action, including anv alleged claims based on the initial installation of the flooring in 2005, are barred by the doctrine of ;accord and satisfaction and/or settlement and release, in that the parties addressed, resolved, and settled all such issues, .and the initial installation of the floor was completely redone, pursuant to the said 2008 Specification for floor remediation, and Addendum thereto, attached to P'laintiffs' Complaint as Exhibits D and E, respectively. 7~. Some or all of Plaintiffs' claims in the above-captioned action are barred by the Unclean Harid s Doctrine. 76. Some or all of Plaintiffs' claims alleged in the above-captioned. action, to the extent based upon claims of warranty breach, are barred by Plaintiffs' failure to provide timely notice to Defendant of the specific claimed defects prior to the expiration of the applicable warranty. In this regard, to the extent that Plaintiffs' currently vague claims may encompass any alleged defects other than with respect to gapping or buckling for which Plaintiffs 1-ailed to provide Defendant with notice during the period of the express five year warranty under the original Construction Agreement, such claims are contractually time barred. 7?. Similarly, to the extent that any of Plaintiffs' vague claims regarding some sort of unspecified breach of implied warranties may related t:o alleged defects occurring more than five years after the 2005 Construction Agreement, such claims are barred by the contractual provisions that expressly limit the duration of any such implied warranties t:o the same five year period as the express warranty under the Construction Agreement. WHIR1/FORE, the Defendant request that Plaintiffs' claims be dismissed and that judgment be entered in favor of Defendant and against Plaintiffs. Loa96~o~.'; 18 Date: ii,,~~ Z~, ~ ~' i 2__ Respectfully submitted, _ i~~-1 ~ __ _ _ .1a es A. Diamond, Esq ire, PA I.D. No, 43902 ~ ckert Seamans Cherin & Mellott, LL(: 13 Market Street, Eighth Floor I-Iarrisburg, Pennsylvania 17101 1;717) 237-6000 Email: JI)iamond@eckertseamans.com Attorney for Defendant EME Development Corporation, d/b/a Excel Interior Concepts & Construction Loaybn>> z t /~ MOH~`'VK RO Box 144E ^ Dalton, GA 30722-1448 ^ www_m~orawkfloor',ng.com Aker Sales ^ 800.524.2514 ^ Fax "x,00.240.3104 September 30, 2010 EXCEL INTERIOR CONCEPTS 570 S, THIRD ST. LEMOYNE, PA ]_7043 CONS Region.: 05 Account: 135000 Claim: R-4666674 Consumer: MAFFETT, BARB ATTN: CLAIMS FAX 717-774-10592 Dear SirfMadame, We have received your cl im against invoice number, 8336608, dated 09/15/05, and have registered and processed it on the above referenced claim n e:r. Based upon the results o an independent inspection, we have found that. tYiere is no i dication of a manufacturing defect. As such we must respectf lly decline any claim for manufactu:ri_nc~ defects against the abov referenced invoice. So that yoi.a may review o r findings, I have enclosed a copy ::f the independE~nt inspecti n report. As we value you as our customer and appreciate your business, please let me know i.f you have questions or if .[ can be of further servir_e. Sincerely, MO ARPET CORPORATIO Claims Analyst VoSe~~ air ~.~. cc : Claim> F,nalyst : KR~STIIJ STANLEY Territory Manager: G41 - DON PARSONS Pro Floor Services, I c. 946 N. Fairville Ave. Harrisburg, Pa. 17112 Phone: 717-991-3856 Fax: 71 7 ~-469-7152 Independent Ins Email: dihoran@comcast.net www.pro-floor-services.com on Report Commissioned By Mohawk From: Analyst Name: Joseph Loga Phone: 800-524-2514 ext 42616 Fax: 800-240- 104 E-Mail: Linda cof eld mohawkind.com DATE' 8/25/10 CLAIM` #: 4666674 DEALF_;R: Excel Interi r Concepts INVOICE: 8336608, 9-15-OS STYLE::~,u~,tralian Jarrah COLOR: Islatural INSTALL, DATE: 9-20-OS nspection date: 9-3-10 REASON FC)R COMPLAINT: Finish eating through ___._-_-.__C:onsumer------------ Name: Barb Maffett Address: ] `i Dapp Ln. fvlechanicsburg, PA. 1 Phone# l?t7} 697-3330 Observations: • The flooring is a 3 strip floating method. It is in • TA°amex Moisture enco~ substrate). • Delmhorst Total Check • At the time of the inspe • There° are 2 large dogs i • Other hardwood floors damaged finishes. In m. bare wood is being expo engineered, "long strip" style product which is installed with the talled in the kitchen, living, dining, and hall areas. Ater readings were all between I4-16% in the kitchen (concrete in meter readings (meter set on Jarrah) ranged between ?-9.6%. ion the temperature was 7I f and the rh was 46%. the home. the home and oak stair treads have severely deteriorated and y areas there is no evidence of any remaining finish and the °d to foot traffic. • The finish on the floors ows significant signs of use and shallow surface scratching throughout the installati n in any areas which are not covered by furniture or area rugs. • The main area of conce is located in the kitchen near the island and sink, This is the area which would receiv the greatest amount of foot traffic. • There is a visible differe ce in the condition of the floor's finish between the walkway and. the area under the t e kicks of the island cabinets. The finish under the toe. kicks appears to be newer loo ing and subjected to much less use, as is typically encountered. • The homeowners are pri arily complaining about graying of several areas of several planks. • Observation in low angl ,reflected light showed [hat the finish over the graymg areas has a rougher, more scratch d appearance. The difference in finish texture ends abruptly at some individual fillets a id it continues across joints between fillets in other locations. • Observation under a 10 loupe showed that the; integrity of the finish was severely compromised and the g y color was actually the wood and not the finish itself. The compromised finish in t e grey area was not acting as a sealer to protect the underlying wood from exposure to ater, uv light, or other things which may bring about changes to the wood's appearance. • `Thf: homeowner stated t at this floor was installed as a replacement approximately 3 years ago. This floor is aid t~o have been glued together since the previous installation had gapping issues. • There were several plac son this installation which had. no expansion space provided. The taoor in the living r om deflected when walked on and appeared to be buckled due to either subfloor flatness sues or lack of expansion space. The homeowner pointed this out as an area of conce • There were no indicatio~rs of any moisture related issues with this installation,. • The flooring is installedlover both suspended wooden and on grade concrete subfloors. Concl»sion: The floor is showing signs of heavy use, scratching from the dogs, and lack. of adequate finish maintenance. The grey color on sumo areas is caused by those areas of fillets receiving exposure to urrkraown agents. It appears as though the grey areas are comprised of softer pieces of wood which were less able to resist the forces of se to which this flooring has been subjected. VERIFICATIOv I .James Mirando, Jr., President of EME Development Corporation, a Pennsylvania corporation. by whom I am authorised to make this verification, state that the matters set forth in the fores:;oi:ng Answer to Complaint With New Matter are true to the hest of my knowledge. information and belief. The matters set forth therein are not within the personal knowledge of anyone person, but wire assembled by myself and EME Development Corporation, including irom b~ainess records. with the assistance of our counsel. I understand that false averments are made subject to the penalties of 18 J?a. C.S. 5904, relating to unsworn falsification t<~ authorities. f; j , Dates October X201? i r ~ ' i ` ~. `' I ' f.. ~r,, Jam s Miran o, Jr.. Presi t' f EN[F Dev opmen Corporatio l.G!~39f~7Q~. CERTIFICATE OF SERVICE I certify that on this day I served a copy of the foregoing document via tirst class mail postage prepaid, which service satisfies the Pennsylvania Rules of Civil Procedure, addressed to: James P. Sheppard, Esq. 2201 North Second Harrisburg, PA 17110 ~s A. Diamond Es utre J J q Date: ~ !:~/ Z ~ Z~ e .~ _ A orney for Defendant EME De~~elopment orporation, d/b/a Excel Interior Concepts & Construction ~_o4y5?n22 'l,° I HE P .11 P 7 A. R t�;rti 20 13 NOV 21 A N : 57 CUMBERLAND CQU� TY PENNS YLVANIA James P. Sheppard, Esquire PA34944 2201 North Second Street Harrisburg, PA 17110 717-232-5551 Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA RICHARD F. MAFFETT, JR. and BARBARA M. MAFFETT, Plaintiffs NO. 12-3128 V CIVIL ACTION - LAW EME DEVELOPMENT CORPORATION, d/b/a EXCEL INTERIOR CONCEPTS & JURY TRIAL DEMANDED CONSTRUCTION, Defendants PLAINTIFFS' OBJECTION TO DEFENDANT' S REQUEST FOR ENTRY UPON PROPERTY AND INSPECTION AND NOW, this tJt day of November, 2013, comes the Plaintiffs, RICHARD F. MAFFETT, JR. and BARBARA M. MAFFETT, by their attorney, James P. Sheppard, Esquire; and, pursuant to Pa.R.C. P. 4009. 32 (b) , objects to Defendant' s Request For Entry Upon Property And Inspection; and, in support thereof, avers the following: 1 . On September 10, 2012, Plaintiffs filed a Complaint against Defendant seeking damages for Defendant' s defective and faulty installation of a hardwood floor at Plaintiff' s residence located at 15 Dapp Lane, Mechanicsburg, PA. 2 . Defendant EME Development Corporation' s Request For Entry Upon Property And Inspection dated October 25, 2013 has been served upon Plaintiffs, which requests that Defendant' s designated representatives, attorney, consultants, and experts be permitted access to examine and inspect the hardwood floor at Plaintiffs' residence at 15 Dapp Lane, Mechanicsburg. (See Exhibit A attached) 3. Plaintiffs object to Defendant' s requested entry for the following reasons : a. Plaintiffs served Requests For Production Of Documents on Defendant on February 27, 2013, which requested discovery of documents regarding any expert witness Defendant may have retained; b. On May 17 , 2013, Defendant' s Response To Plaintiffs' First Request For Production of Documents was submitted to Plaintiffs which failed to identify any expert retained by Defendant to date (See Exhibit B attached) ; c. Defendant has not identified any expert who has been retained on their behalf in connection with the current litigation to inspect the floor at Plaintiffs' residence to date; 2 d. Defendant has previously had the opportunity to have the floor at Plaintiffs' residence inspected by at least three (3) experts on at least five (5) occasions already, by Martha Yanover on August 9, 2006; Michael Quinlan, Certified Floor Inspector, on January 21, 2008, February 25, 2008 and February 28, 2008; and, Joseph Logan, of Pro Floor Services, Inc. , on September 3, 2010 . (See Exhibit C attached) ; e. Representatives of Defendant have previously inspected the defective floor at Plaintiffs' residence, including James Miranda, President; and, Kyle Oliver, Project Manager; and, f. Defendant' s request that its designated representatives, attorneys, consultants and experts be granted access to inspect and examine the flooring located at Plaintiffs' residence has not been made as part of a good faith effort to obtain discoverable information, but rather is intended to harass, annoy, and alarm Plaintiffs . WHEREFORE, Plaintiffs respectfully object to Defendant EME Development Corporation' s Request For Entry Upon Property And 3 mmmlimmEMMEMMEMEM Inspection; and, request that their objections be sustained and Defendant' s request be denied. Respectfully submitted, Jame ` P. Sheppardd Esqui e A - ney for Plaintiffs 4 VERIFICATION I, Richard F. Maffett, Jr. , have read the foregoing Plaintiffs' Objection To Defendant's Request For Entry Upon Property And Inspection and hereby affirm that it is true and correct to the best of my knowledge, or information and belief. This verification and statement is made subject to the penalties of 18 Pa. C. S.A. §4904 relating to unsworn falsification to authorities; I verify that all statements made in the foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa. C. S.A. §4904 . Dated: /1/.24f Isig71) // RICHARD F. MAF 'ETT, R. Plaintiff • IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA RICHARD F. MAFFETT,JR., and • BARBARA M.MAFFETT, • Plaintiffs, : Case No. 12-3128 v. CIVIL ACTION—LAW EME DEVELOPMENT CORPORATION, : JURY TRIAL DEMANDED d/b/a EXCEL INTERIOR CONCEPTS & . CONSTRUCTION, Defendants. DEFENDANT EME DEVELOPMENT CORPORATION'S REQUEST FOR ENTRY UPON PROPERTY AND INSPECTION Pursuant to the Pennsylvania Rules of Civil Procedure, including Rule 4009.32, Defendant,EME Development Corporation, by its attorneys Eckert Seamans Cherin&Mellott, LLC,requests that its designated representatives, counsel, consultants, and experts be permitted access to and the ability to inspect,photograph, videotape, and otherwise examine the flooring and site of the project at issue in the Complaint of Plaintiffs in the above-captioned action at Plaintiffs' residence located at 15 Dapp Lane,Mechanicsburg, Cumberland County, Pennsylvania, including in the kitchen,family room, common hallway,bedroom hallway, hallway closet, study,bedroom, on a date and at a time mutually agreed upon by the parties that would permit completion of the inspection during normal business and daylight hours. EXHIBIT A {L0533268.1) 1 Respectfully submitted, ECKERT SEAMANS CHERIN &MELLOTT, LLC I Date: October 25, 2013 am A. Diamond, Esquire PA .D.No. 43902 ckert Seamans Cherin&Mellott, LLC 213 Market Street,Eighth Floor Harrisburg, Pennsylvania 17101 (717)237-6000 Email: JDiamond@eckertseamans.com Attorney for Defendant EME Development Corporation, d/b/a Excel Interior Concepts & Construction • EXHIBIT A {L0533268.11 2 CERTIFICATE OF SERVICE I certify that on this day I served a copy of the foregoing document via first class mail postage prepaid,which service satisfies the Pennsylvania Rules of Civil Procedure, addressed to: James P. Sheppard, Esq. 2201 North Second Harrisburg, PA 171/10 J A. Diamond, Esquire Date: October 25, 2013 tt ey for Defendant EME Development rporation, d/b/a Excel Interior Concepts & Construction EXHIBIT A {L0533268.1) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA RICHARD F. MAFFETT, JR., and • BARBARA M. MAFFETT, Plaintiffs, : Case No. 12-3128 v. : CIVIL ACTION—LAW EME DEVELOPMENT CORPORATION, : JURY TRIAL DEMANDED d/b/a EXCEL INTERIOR CONCEPTS & . CONSTRUCTION, Defendants. DEFENDANT'S RESPONSE TO PLAINTIFFS' FIRST REQUEST FOR PRODUCTION OF DOCUMENTS Defendant, EME Development Corporation d/b/a Excel Interior Concepts ("Defendant" or"Excel"),pursuant to Pa. C.P. 4009.12,responds to the Request for Production of Documents served by Plaintiffs, Richard F. Maffett and Barbara M. Maffett("Plaintiffs"), as follows: GENERAL OBJECTIONS Defendant responds to the discovery requests on the basis of its understanding of the discovery requests and upon information reasonably available to it as of the date of these responses. Defendant's responses are made without in any way adopting or accepting any definitions, hypothetical facts, allegations, or argumentative terminology, express or implied, in the discovery requests. Defendant objects to any definition or instruction or discovery requests which seek to impose obligations exceeding the requirements of the Pennsylvania Rules of Civil Procedure. EXHIBIT B {L0517743.2} 1 • Defendant further objects to providing any information protected from disclosure by attorney- client privilege, work product privilege, or any other valid privilege. Defendant's responses to discovery are made without waiving (1)the right to object on the ground of competency,privilege, relevancy,materiality, hearsay, or any other proper ground, to the use of any such discovery responses or information, for any purpose, in whole or in part, in any subsequent stage or proceeding in this action or any other action; and(2)the right to object on any and all grounds, at any time,to any other discovery or other proceeding involving or relating to the subject matter of these discovery responses. Subject to the above general objections, Defendant responds to Plaintiffs' requests, and to the extent indicated herein provides herewith true and correct copies of discoverable documents identified by Defendant as being responsive to these requests, for inspection as set forth in the responses below. Defendant is also willing to make originals (including file copies) of items specified below available to Plaintiffs and Plaintiffs' counsel for inspection at the offices of the Defendant's counsel at a mutually agreed upon time and date. RESPONSES TO DOCUMENT PRODUCTION REQUESTS DOCUMENT REQUEST NO. 1 All photographs, diagrams, drawings,specifications and/or test results, relating to the subject of Plaintiffs Complaint, the hardwood floor installed at Plaintiffs residence. RESPONSE: The following documents, true and correct copies of which are produced herewith under the separator sheet styled as "Response to Request No. 1" at Bates Stamp Numbers D-000002 through D-000025, have been identified by Defendant as responsive to Plaintiffs' Document Request No. 1: > Addendum to Specifications. ➢ Specifications. EXHIBIT B {L0517743.2} 2 > Correspondence August 14, 2006 from manufacturer Mohawk Industries, Inc (hereinafter "Mohawk")to Defendant with enclosed independent hardwood inspection report of Martha YanOver Floor Covering Inspection commissioned by the manufacturer. > Email dated January 24, 2008 from independent flooring inspector selected by Plaintiffs and paid by Defendant, M.J. Quinlan Inspection Service(hereinafter"Quinlan"). > Quinlan Inspection Report re: Inspection Date 1/21/08. > Quinlan Inspection Report re: Inspection Date 2/25/08. > Quinlan Inspection Report re: Inspection Date 2/28/08. > Independent Inspection Report of Pro Floor Services, Inc. commissioned by Mowhak dated 8/25/10. > Correspondence September 30, 2010 from Mohawk to Defendant. > Brochure photographs of project. Defendant further identifies as responsive to Document Request No. 1 the following construction contract documents that are attached to Plaintiffs' Complaint in the above captioned case at Exhibits A through E,which are already in the possession of Plaintiffs. Although Defendant has produced herewith true and correct photocopies of the items identified by Defendant as responsive to Document Request for Production No. 1,Defendant, subject to and without waiving its foregoing objections, is also willing to make available for inspection and copying the originals of the above-referenced business records at a mutually convenient time and place. DOCUMENT REQUEST NO. 2 All documents prepared by Defendant, its representatives, agents, or anyone acting on its behalf, except its attorney, during an investigation of any aspect of the hardwood floor in question. Such documents shall include any document made or prepared through the present time, with the exclusion of mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense, or respecting strategy or tactics. RESPONSE: Defendant identifies the following email and reports, copies of which are produced as part of the above Response to Request No. 1 at Bates Stamp Numbers D-000015 through D- 000018, of the independent inspector chosen by Plaintiffs and paid by Defendant as being potentially responsive to Request No. 2, although the said inspector was acting for the benefit of Plaintiffs since the inspector was paid and contracted by Defendant: > Quinlan Email dated 1/24/08. > Quinlan Inspection Report re: Inspection Date 1/21/08. > Quinlan Inspection Report re: Inspection Date 2/25/08. > Quinlan Inspection Report re: Inspection Date 2/28/08. EXHIBIT B {L0517743.2) 3 DOCUMENT REQUEST NO. 3 All records, reports, correspondence, memorandum, estimates, or other documentation relating to consultation with any expert by Defendant, its officers, employees, or agents, in connection with the subject matter of this lawsuit RESPONSE: Defendant has not identified any documents responsive to Request No. 3. DOCUMENT REQUEST NO. 4 All documents regarding the purchase of materials and supplies used in installation, repair, removal, or reinstallation of the hardwood floor at Plaintiffs'residence, including but not limited to purchase orders, invoices, receipts, bills,payments, cancelled checks; and contracts. RESPONSE: The invoices and purchase order,true and correct copies of which are produced herewith under the separator sheet styled as "Response to Request No. 4," at Bates Stamp Numbers D- 000027 through D-000031 have been identified by Defendant as responsive to Plaintiffs' Document Request No. 4. Although Defendant has produced herewith true and correct photocopies of the items identified by Defendant as responsive to Document Request for Production No. 4 Defendant, subject to and without waiving its foregoing objections, is also willing to make available for inspection and copying the original file copies of the above-referenced business records at a mutually convenient time and place. DOCUMENT REQUEST NO. 5 All documents by and between Defendant, its officers, employees, or agents and any subcontractor in connection with work done on the hardwood floor at Plaintiffs'residence, including but not limited to, contracts, change orders, invoices, bills, receipts, correspondence, cancelled checks;and/or,payments. RESPONSE: The invoices, true and correct copies of which are produced herewith under the separator sheet styled as"Response to Request No. 5,"at Bates Stamp Numbers D-000033 through D- 000035 have been identified by Defendant as responsive to Plaintiffs' Document Request No. 5. EXHIBIT B {L0517743.2} 4 DOCUMENT REQUEST NO. 6 All documents sent to, or from, the manufacturer of the hardwood floor installed at Plaintiffs' residence, its officers, employees, or agents, regarding said hardwood floor. RESPONSE: • Defendant identifies the following documents,true and correct copies of which are produced as part of the above Response to Request No. 1, as also being responsive to Request No. 6: > Correspondence 8/14/06 from Mohawk to Defendant with enclosed independent hardwood inspection report. (Bates Stamp Numbers D-000008 through D-000014.) > Correspondence 9/30/10 from Mohawk with enclosed independent hardwood inspection report. (Bates Stamp Numbers D-000021 through D-000023.) DOCUMENT REQUEST NO.7 All documents sent to, or from, the distributor of the hardwood floor installed at Plaintiffs' residence, its officers, employees, or agents, regarding said hardwood floor. RESPONSE: Defendant has not identified any documents responsive to Request No. 7. DOCUMENT REQUEST NO. 8 All written correspondence and/or copies of all notes, memoranda, or other records of oral communications between Plaintiffs, and/or their agents; and,Defendant, and/or its officers, employees, and/or agents. RESPONSE: The following documents,true and correct copies of which are produced herewith under the separator sheet styled as"Response to Request No. 8"at Bates Stamp Numbers D-000037 through D-000072, have been identified by Defendant as responsive to Plaintiffs' Document Request No. 8: > Note of Plaintiff Barb Maffett on Change Order. > File Notes dated 4/20/06 re: communication with Barb Maffett. > Customer Service Note dated 4/24/06. > Email from Jim Mirando, Jr. to Kyle Oliver dated 5/26/06. > Specifications document dated 12/8/06. > Correspondence dated 3/26/07 from Defendant to Plaintiffs. EXHIBIT B {L0517743.2} 5 > Correspondence dated 5/10/07 from Richard Maffett to Defendant. > Correspondence dated 5/17/07 from Defendant to Richard Maffett with enclosed proposed Hardwood Flooring Service Plan specifications. > Correspondence dated 6/8/07 from Richard Maffett to Defendant. > Correspondence dated 8/21/07 from Richard Maffett to Defendant. > Correspondence dated 1/24/07 from Richard Maffett to Defendant. > Correspondence dated 2/20/12 from Richard Maffett to Defendant with enclosures. > Correspondence dated 2/22/12 from Defendant to Richard Maffett(duplicative copies enclosed reports which are produced in response above to Request No. 1 omitted.) > Correspondence dated 4/10/12 from Richard Maffett to Defendant. > Correspondence dated 4/17/12 from James Diamond to Richard Maffett. Defendant further identifies the following documents,true and correct copies of which are produced as part of the above Response to Request No. 1, as being responsive to Request No. 8: > Quinlan Inspection Reports (Bates Stamp Numbers D-000016 through D-000018). > Inspection Report of Pro Floor Services (Bates Stamp Numbers D-000019 through D- 000020.) Defendant does not interpret Plaintiffs' Request No. 8 relating to communications as seeking executed contract documents or similar operative documents, and has responded on the basis of that stated interpretation. Although Defendant has produced herewith true and correct photocopies of the items identified by Defendant as responsive to Document Request for Production No. 8, Defendant, subject to and without waiving its foregoing objections, is also willing to make available for inspection and copying the originals/file copies of the above-referenced business records at a mutually convenient time and place. DOCUMENT REQUEST NO. 9 All documents, including but not limited to, advertisements, circulars, brochures,pamphlets, leaflets, writings, or other items regarding the specifications, qualities,suitability, and/or characteristics of the hardwood floor installed at Plaintiffs'residence. RESPONSE: The 2006 Mohawk website excerpt, true and correct copies of which is produced herewith under the separator sheet styled as "Response to Request No. 9,"at Bates Stamp Number D-000074 has been identified by Defendant as responsive to Plaintiffs' Document Request No. 9. EXHIBIT B {L0517743.2} 6 Although Defendant has produced herewith true and correct photocopies of the item g P p p identified by Defendant as responsive to Document Request for Production No. 9 Defendant, subject to and without waiving its foregoing objections, is also willing to make available for inspection and copying the original file copy of the above-referenced business record at a mutually convenient time and place. DOCUMENT REQUEST NO. 10 All documents, including but not limited to, advertisements, circulars, brochures,pamphlets, leaflets,plans, drawings, literature, writings, or other items which describe the requirements and/or method for installation of the hardwood floor used at Plaintiffs'residence. RESPONSE: The following documents, true and correct copies of which are produced herewith under the separator sheet styled as"Response to Request No. 10" at Bates Stamp Numbers D-000076 through D-000085, have been identified by Defendant as responsive to Plaintiffs' Document Request No. 10: > Mohawk Installation information. > Mohawk Technical Bulletin. Although Defendant has produced herewith true and correct photocopies of the items identified by Defendant as responsive to Document Request for Production No. 10, Defendant, subject to and without waiving its foregoing objections, is also willing to make available for inspection and copying the originals of the above-referenced business records at a mutually convenient time and place. DOCUMENT REQUEST NO. 11 All documents, including but not limited to, advertisements, circulars, brochures,pamphlets, leaflets, writings, or other items which describe the requirements and/or methods for proper care of the hardwood floor used at Plaintiffs'residence. RESPONSE: Defendant has not identified any documents responsive to Request No. 11. EXHIBIT B {L0517743.2) 7 DOCUMENT REQUEST NO. 12 All documents, including but not limited to, advertisements;circulars, brochures,pamphlets, leaflets, writings, and other such promotional items any expert witness you have retained for use at trial uses and/or has used in the past to promote his services as an expert witness. RESPONSE: Defendant has not identified any documents responsive to Request No. 12. DOCUMENT REQUEST NO. 13 A curriculum vitae as to each expert witness that has been retained by Defendant to test 07 on its behalf at the trial of this case. RESPONSE: Defendant has not identified any documents responsive to Request No. 13. DOCUMENT REQUEST NO. 14 All documents or exhibits which you intend to offer or identify as exhibits and/or evidence at the trial of this matter. RESPONSE: Defendant has not yet determined what exhibits it will ultimately introduce as evidence at the trial of this case. As of this time, all documents identified and/or produced in response Request Numbers 1 through 13 above,the above responses to which requests are incorporated herein by reference, are identified as being under consideration for potential use as evidence. Respectfully submitted, Date: 5 Jl 7 6?j �-�- Ja es A. Diamond, Esquire, PA I.D. No. 43902 E ert Seamans Cherin&Mellott, LLC 13 Market Street, Eighth Floor Harrisburg, Pennsylvania 17101 (717) 237-6000 Email: JDiamond @eckertseamans.com Attorney for Defendant EME Development Corporation, d/b/a Excel Interior Concepts & Construction EXHIBIT B {L0517743.2} 8 VERIFICATION I,James Mirando,Jr.,President of EME Development Corporation,a Pennsylvania corporation,by whom I am authorized to make this verification,state that the matters set forth in the foregoing Responses to Document Production Requests are true to the best of my knowledge, information and belief. The matters set forth therein are not within the personal knowledge of any one person,but were assembled by myself and EME Development Corporation,including from business records,with the assistance of our counsel. I understand that false averments are made subject to the penalties of 18 Pa.C.S. §4904,relating to unswom falsification to authorities. tI \*- \ 0�ll "ti� Date: May\C^ 2013 James do,Jr.,Presio of EME Develo••, - t Corporation EXHIBIT B {L05131242} CERTIFICATE OF SERVICE I certify that on this day I served a copy of the foregoing document via first class mail postage prepaid,which service satisfies the Pennsylvania Rules of Civil Procedure, addressed to: James P. Sheppard, Esq. 2201 North Second Harrisburg, PA 17110 Prb J: e A. Diamond,Esquire Date: May 17, 2013 •tto ey for Defendant EME Development • •oration, d/b/a Excel Interior Concepts & Construction EXHIBIT B (L0517743.2) since 1970 Interior Concepts & Construction 111--L1111 _ 570 South Third Street Lemoyne,PA 17043 tel 717374.4990 fax 717.774.0592 www.excelremodeling.com February 22, 2012 Richard Maffett,Jr. 2201 North Second Street Harrisburg, PA 17110 RE: Hardwood Flooring 15 Dapp Lane, Mechanicsburg PA Dear Mr. Maffett, In response to your letter dated February 20, 2012, we are not responsible to replace your floor. Please find enclosed copies of Independent Inspection Reports from Joseph Logan, Analyst from Pro Floor Services, Inc., dated 8/25/10, and from Michael J. Quinlan, Certified Floorcovering Inspector, dated 3/4/08. The more recent report concludes as follows: "The floor is showing signs of heavy use, scratching from the dogs, and lack of adequate finish maintenance. The grey color on some areas is caused by those areas of fillets receiving exposure to unknown agents. It appears as though the grey areas are comprised of softer pieces of wood which were less able to resist the forces of use to which this flooring has been subjected" According to Mr. Logan, "Other hardwood floors in the home and oak stair treads have severely deteriorated and damaged finishes. In many areas there is no evidence of any remaining finish and the bare wood is being exposed to foot traffic." Mr. Logan's inspection report describes the "significant signs of use and shallow surface scratching throughout the installation in any areas which are not covered by furniture or area rugs." These conditions are not related to our installation. Mr. Logan also reports, "There were no indications of any moisture related issues with this installation." Mr. Quinlan inspected the floor on 1/21/08. This was during the reinstallation, after the hardwood was removed, but before the reinstallation. Regarding the flatness, he reports, "I found the concrete substrate between 1/16" to 1/8"flatness, which within acceptable standards." He also tested concrete moisture at this time, and found it within manufacturer's EXHIBIT C RECEIVED FEB 24 -- Make the most of your home C standards. His conclusion states, "Based upon these tests and observation the subfloor is within manufacture's standards." Mr. Quinlan returned twice more, in February 2008, to inspect the reinstallation. At his first February 2008 visit, he reports, "I found sufficient expansion gaps throughout at the time of this inspection." Also, "I found all moisture reading well within acceptable standards. The reading were 10%throughout." When Mr. Quinlan returned for his final inspection in February 2008, he reports, "I found all transition to be installed properly." Also, "I found moisture reading to be normal 10%throughout." Mr. Quinlan's conclusion: "I found no installation related problems with the flooring inspected." Regarding Mr. Edel's inspection on 5/25/11, perhaps the "buckling of the floor" in the Living Room was the result of the base trim pinching tightly against the flooring due to swelling from the high relative humidity (69%) of the ambient conditions during inspection, since the inspection was performed during the wettest 2-month period in Pennsylvania history, and the air conditioning was off and the windows and doors of the home were open. If the flooring is still buckled, we would be happy to come and modify (enlarge) the gap between the base trim and floor. In conclusion, I am not responsible for any costs associated with having the floor replaced. It appears that you have a floor showing signs of heavy use, scratching from the dogs, and lack of adequate finish maintenance. If you would like us to address any buckling issues or gapping issues, please do not hesitate to contact me and we will most certainly address them in a timely fashion. Should you have questions, please also contact me at your first opportunity. With best regards, ,t / h 4 rid4„0/---- James;A. Mirando r. Pr=esident 1 EXHIBIT C • • mmmmmimmmmmimmEmm IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA RICHARD F. MAFFETT, JR. and BARBARA M. MAFFETT, Plaintiffs NO. 12-3128 V CIVIL ACTION - LAW EME DEVELOPMENT CORPORATION, d/b/a EXCEL INTERIOR CONCEPTS & JURY TRIAL DEMANDED CONSTRUCTION, Defendants CERTIFICATE OF SERVICE The undersigned hereby certifies that he served a true and correct copy of the foregoing Plaintiffs' Objection To Defendant EME Development Corporation's Request for Entry Upon Property And Inspection by depositing same in the United States Mail, postage prepaid, addressed as follows : James A. Diamond, Esquire Eckert Seamans, Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101 Dated: \\_ a\ _ \--s . '4L. - J,:me- P. Sheppa,•-, Esquire At ney for Plaintiffs RICHARD F. MAFFETT, JR. AND : IN THE COURT OF COMMON PLEAS OF BARBARA M. MAFFETT, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS • V. • • EME DEVELOPMENT CORPORATION,: d/b/a EXCEL INTERIOR CONCEPTS : & CONSTRUCTION, DEFENDANTS : 12-3128 CIVIL TERM ORDER OF COURT AND NOW, this ? day of November, 2013, despite Defendants' previous inspections of Plaintiffs' property, the Plaintiffs' Objection to Defendants' Request for Entry Upon Property and Inspection is OVERRULED as this is the first request for inspection subsequent to the initiation of litigation. By the Court, Albert H. Masland, J. /James P. Sheppard, Esquire For Plaintiffs . James A. Diamond, Esquire f_, For Defendants :sal 4;e_s ma,'led /47 G '=' w` r� tiGe cp JAMES P.SHEPPARD, ESQUIRE PA34944 i c j; > s � L; :r, 2201 North Second Street Harrisburg, PA 17110 �1 F 21 � .; 717-232-5551 Attorney for Plaintiffs CUMBERRLAND COUN i,' PENNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA RICHARD F. MAFFETT, JR. and BARBARA M. MAFFETT, Plaintiffs NO. 12-3128 V CIVIL ACTION - LAW EME DEVELOPMENT CORPORATION, d/b/a EXEL INTERIOR CONCEPTS & JURY TRIAL DEMANDED CONSTRUCTION, Defendants PRAECIPE TO THE PROTHONOTARY OF SAID COURT: Please mark the above-captioned matter settled and discontinued. I i Dated: 2]a Z0 ^ 4-a„ A 1,41i AMNIA (( P. Sheppard, Esquire