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HE Ff OTHONOT4 y ANGINO & ROVNER, P.C. Richard C. Angino, Esquire Attorney ID#: 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 E-mail: rca(??angino-rovner.com PAULA R. RISSER, v. 2012 JUN 28 PH 1:04 CtWRLANO COUNTY MNSYL.VARtA Plaintiff PENNSYLVANIA BASEMENT WATERPROOFING, INC., JAMES WILLIAMS d/b/a J.S. WILLIAMS AND SON, JAMES S. WILLIAMS, DERECK S. WILLIAMS, and FREDERIK MUTUAL INSURANCE COMPANY, Defendants Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. I a- y oLI 3 ei-M CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER C C) an?? s I o3. 7S,)d a? IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICE TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 1013 800-990-9108 NOTICIA USTED HA SIDO DEMANDADO/A EN LA CORTE. Si usted desea defender conta la demanda puestas en las sigurentes PAGINAS, USTED TIENEN QUE TOMAR ACCION DENTRO VEINTE (20) dias despues que esta Demanda y Aviso es servido, con entrando por escrito una aparencia personalmente o por un aborgado y archivando por escrito con la Corte sus defenses o objections a las demandas puestas en esta contra usted. Usted es advertido que si falla de hacerio el caso puede proceder sin usted y un jazgamiento puede ser entrado contra usted pro la Corte sin mas aviso por cualquier dinero reclamando en la Demanda o por cualquier otro reclamo o alivio solicitado por Demandante. Usted puede perder dinero o propiedad o ostros derechos importante para usted. USTED DEBE LLEVAR ESTE PAPEL A SU ABOGANDO ENSEGUIDA. SI USTED NO TIENE UN ABORGADO, VAYA O LLAME POR TELEFONO LA OFICINA FIJADA AQUI ABAJO. ESTA OFICINA PUEDE PROVEERE CON INFORMACION DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGARLE A UN ABOGADO, ESTA OFICINA PUEDE PROVEERE INFORMACION ACERCA AGENCIAS QUE PUEDAN OFRECER SERVICIOS LEGAL A PERSONAS ELIGIBLE AQ UN HONORARIO REDUCIDO O GRATIS. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 1013 800-990-9108 ANGINO & ROVNER, P.C. Richard C. Angino, Esquire Attorney ID#: 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 E-mail: rca@angino-rovner.com Attorney for Plaintiff PAULA R. RISSER 1210 Griffin Street Harrisburg, PA 17112, v. PENNSYLVANIA BASEMENT WATERPROOFING, INC. 1525 Cedar Cliff Drive, Suite 101 Camp Hill, PA 17011, JAMES WILLIAMS d/b/a J.S. WILLIAMS AND SON 67 Michael Lane Watsontown, PA 17777, JAMES S. WILLIAMS 67 Michael Lane Watsontown, PA 17777, DERECK S. WILLIAMS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. CIVIL ACTION - LAW JURY TRIAL DEMANDED 49 Michael Lane Watsontown, PA. 17777, and FREDERICK MUTUAL INSURANCE COMPANY 57 Thomas Johnson Drive Frederick, MD 21702 Defendants COMPLAINT AND NOW, comes Plaintiff, Paula R. Risser, by and through her attorney, Angino & Rovner, P.C., and files her Complaint, stating as follows: 1. Plaintiff, Paula R. Risser (hereinafter, "Plaintiff'), is an adult individual who resides at 1210 Griffin Street, Harrisburg, Pennsylvania 17112. 2. Defendant, Pennsylvania Basement Waterproofing, Inc. (hereinafter, "PA Basement") is a Pennsylvania corporation with a principal place of business at 1525 Cedar Cliff Drive, Suite 101, Camp Hill, Pennsylvania 17011, which routinely solicits and engages in business in Cumberland County, Pennsylvania. 3. Defendant, James Williams d/b/a J.S. Williams and Son (hereinafter, "JSW"), is a Pennsylvania partnership with a principal place of business at 67 Michael Lane, Watsontown, Northumberland County, Pennsylvania 17777, which routinely solicits and engages in business in Cumberland County, Pennsylvania. 4. Defendant, James S. Williams, is an adult individual who resides at 67 Michael Lane, Watsontown, Northumberland County, Pennsylvania 17777. 5. At all times relevant hereto, Defendant, James S. Williams, is and has been, the Senior Partner and an owner of JSW. 6. Defendant, Dereck S. Williams, is an adult individual who resides at 49 Michael Lane, Watsontown, Northumberland County, Pennsylvania 17777. 499688 2 7. At all times relevant hereto, Defendant, Dereck S. Williams, is and has been the Junior Partner and an owner of JSW. 8. Defendant, Frederick Mutual Insurance Company (hereinafter, "Frederick Mutual") is a Maryland insurance company which maintains a principal place of business at 57 Thomas Johnson Drive, Frederick, Maryland, 21702 and regularly does business in Cumberland County, Pennsylvania. 9. On or about June 4, 2011, Plaintiff entered into a written Agreement (hereinafter, "the Agreement") with PA Basement (attached hereto as "Exhibit A"), pursuant to which PA basement agreed to perform waterproofing services in Plaintiff's basement in exchange for Plaintiff s payment of $5,740.00 in valuable consideration. 10. Paragraph 22 of the Agreement provides this Honorable Court with exclusive jurisdiction over the instant action. See Ex. A ¶ 22 ("This agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Owner consents to the exclusive personal jurisdiction and venue of the Courts of Cumberland County, Pennsylvania for all litigation which may be brought with respect to or arising out of the terms of and the transactions and relationships contemplated by this agreement."). 11. PA Basement, in turn, engaged JSW as a subcontractor to perform the subject waterproofing, without Plaintiff s knowledge. 12. At all times relevant hereto, JSW is and has been insured by Frederick Mutual, a casualty insurance company. 13. On or about June 26, 2011, the employees and/or agents of PA Basement and/or JSW inspected Plaintiff's basement and then performed waterproofing services for Plaintiff pursuant to the Agreement. 499688 3 14. While performing said waterproofing services, the employees and/or agents of PA Basement and/or JSW severed a copper fuel-oil line that was embedded in the original concrete slab in Plaintiff s basement. 15. Plaintiff believes and therefore avers that the employees and/or agents of PA Basement and/or JSW were aware of the adverse consequences of severing a fuel-oil line. 16. Despite actual knowledge that the oil line was severed, the employees and/or agents of PA Basement and/or JSW failed to inform Plaintiff of the incident. Instead, they poured concrete over the severed oil line and the oil that leaked therefrom, in an attempt to conceal the severed pipe. 17. As a result, approximately seventy (70) gallons of oil leaked from Plaintiffs fuel tank through the severed oil pipe beneath the surface of Plaintiff s basement floor. 18. Upon initial inspection, the severance was not identifiable by Plaintiff as it was hidden beneath the newly poured concrete. 19. Plaintiff first became aware of the severed oil line on or about July 7, 2011, when, after a heavy rain, she was able to smell the oil-fume emissions. 20. On or about July 7, 2011, after detecting the odor of the emissions, Plaintiff called PA Basement to notify it of the same. 21. Within the next one to two days, PA Basement and/or JSW sent their agent and/or employee to Plaintiff s house to examine the problem. 22. The agent and/or employee used a jackhammer to remove the concrete above the area of Plaintiffs basement floor where PA Basement and/or JSW had been working while installing the waterproofing system. 499688 4 23. The removal of said concrete exposed a layer of gravel, the surface of which the employee and/or agent of PA Basement and/or JSW superficially examined and determined that there was no oil leakage. 24. Plaintiff's husband, David Stuller, Jr. (hereinafter, "Mr. Stuller"), was present during this examination. 25. Using a screwdriver, Mr. Stuller moved some of the gravel aside, and in so doing, exposed substantial oil leakage to the employee and/or agent of PA Basement and/or JSW. 26. The employee and/or agent of PA Basement and/or JSW excused himself from Plaintiff's premises and went to his work truck, where Plaintiff believes and therefore avers that he called PA Basement and/or JSW to discuss the issue. 27. Subsequently, Plaintiff was instructed to call the owner of PA Basement. Upon calling PA Basement, Plaintiff was advised to engage her fuel-oil company to replace the severed oil line, at PA Basement's expense. 28. On or about July 15, 2011, Plaintiff's oil company, ABC Fuel Oil Company, Inc. (hereinafter, "ABC Fuel Oil"), visited Plaintiff's residence and replaced the severed oil line at a cost of $214.90. 29. Soon thereafter, PA Basement issued a check made payable to ABC Fuel Oil in the amount of $214.90 to pay for the expenses associated with replacing the severed oil line. 30. Although the severed oil line was replaced, the oil that leaked from Plaintiff's oil tank remained for a substantial time, and in part continues to remain, trapped beneath Plaintiff's basement floor. 31. On or about July 30, 2011, Erie Insurance Company (hereinafter "Erie"), through which Plaintiff maintained a homeowner's insurance policy, engaged the services of Aufiero 499688 5 Associates to complete a cause and origin inspection regarding the oil leak in Plaintiff's basement. 32. Following its inspection, Aufiero Associates determined that the work completed by PA Basement and/or JSW caused the damage to Plaintiff's oil line. 33. Also in July 2011, pursuant to the instruction of ABC Oil, Plaintiff notified the Pennsylvania Department of Environmental Protection (DEP) of the severed oil line and resultant oil emission. 34. After Plaintiff communicated to PA Basement her intent to put DEP on notice, PA Basement became uncooperative and unwilling to work with her to further resolve this issue. 35. Subsequently, Plaintiff engaged the services of Angino & Rovner, P.C. 36. On or about November 14, 2011, Angino & Rovner filed a Complaint against PA Basement on Plaintiff's behalf in the Common Pleas Court of Cumberland County, alleging negligence and seeking punitive damages. 37. On or about November 30, 2012, PA Basement filed Preliminary Objections, seeking dismissal of Plaintiff's punitive damages claim and seeking a more specific pleading with regard to the dollar amount of property damages Plaintiff claimed. 38. On or about December 23, 2011, PA Basement filed a Joinder Complaint against JSW. 39. On or about January 6, 2012, the Honorable Albert H. Masland overruled PA Basement's Preliminary Objections. 40. Plaintiff now files the instant Complaint to incorporate additional facts and claims that have arisen since the time she filed her initial Complaint. 41. The statute of limitations pertaining to Plaintiff's claims has not yet expired. 499688 6 42. In February 2012, JSW's counsel, Adam Seiferth, Esquire (hereinafter, "Attorney Seiferth"), of Cipriani & Werner, P.C., took over the defense of PA Basement and Frederick Mutual, JSW's insurer. See Email from Attorney Seiferth to Angela Horchler et al., "RE: Risser v. Pa Basement Waterproofing" (Feb. 23, 2011) (attached hereto as "Exhibit B") 43. Plaintiff consulted geologist Brian Sauls from Skelly & Loy, an engineering and environmental consulting firm, who advised her that in order to determine the extent of her property damages, he would need to perform certain procedures, including but not limited to sampling, and that said procedures would cost a minimum of approximately $5,000.00. 44. As of January 2012, when PA Basement's Preliminary Objections were overruled, Plaintiff had not ascertained the extent of her property damages, of which Defendants contended they needed to be made aware, in order to form proper defenses. 45. Attorney Seiferth advised Plaintiff's counsel, Kristen. Sinisi, Esquire (hereinafter, "Attorney Sinisi"), via voice message and e-mail that [his] carrier [Frederick Mutual Insurance Company] has agreed to pay for the initial sampling to be performed by a company [he has] selected.... Once the sampling is completed, we will get an estimate for Act 2 remediation compliance and go from there. Email from Attorney Seiferth to Attorney Sinisi, "Risser v. PA Basement," (Feb. 13, 2012) (attached hereto as "Exhibit U). 46. PA Basement, JSW, and Frederick Mutual (collectively, "Defendants") engaged the services of Minuteman Environmental Services, Inc. (hereinafter, "Minuteman"), which performed an initial inspection of Plaintiff's premises on or about February 16, 2012. 47. On or about February 23, 2012, Plaintiff's counsel, Richard C. Angino, Esquire (hereinafter, "Attorney Angino") sent an email to Attorney Seiferth stating, 499688 7 Mrs. Risser, her husband, and her child have been subjected to the fumes from your clients' reckless conduct and will continue to be exposed to fumes until you are authorized to pay for the remedial work required. The Rissers do not have the financial wherewithal to engage someone to perform the remedial work. It is in your client's best interest to authorize payment for the remedial work. You will be given credit toward the eventual jury verdict. Email from Angie Horchler, on behalf of Attorney Angino, to Attorney Seiferth, "RE: Risser v. Pa Basement Waterproofing" (Feb. 23, 2012) (attached hereto as "Exhibit D") 48. In response thereto, Attorney Seiferth wrote: As Mr. Angino is apparently not aware, we have engaged an independent contractor to proceeding [sic] with the remediation work and to address DEP's Act 2 compliance, without admission of liability, and will voluntarily pay for the same. Soil sampling will be completed this Tuesday, February 23, 2012. If this is now unacceptable, please advise immediately. Ex. B (emphasis added). 49. The same day, Attorney Sinisi advised Attorney Seiferth that the aforementioned was acceptable. See Email from Attorney Sinisi to Attorney Seiferth, "RE: Risser v. Pa Basement Waterproofing" (Feb. 23, 2012) (attached hereto as "Exhibit E"). 50. Plaintiff reasonably and justifiably relied on Defendants' promise, which was made by their agent, Attorney Seiferth, with actual, implied, and/or inherent authority. 51. Subsequently, Minuteman performed said sampling. 52. On or about February 24, 2012, John Lydzinski, P.G., acting as a consultant to Minuteman and defense counsel's law firm, Cipriani & Werner, P.C., informed Lower Paxton Township of the intent of JSW and Cipriani & Werner, P.C. to remediate Plaintiff's property "[i]n accordance with the provisions of Act 2." See Letter from John C. Lydzinski, P.G., Senior Project Manager, Marshall Miller & Assocs., Inc. to Mr. George Wolf, Twp. Manager, Lower Paxton Twp., "Re: No. 2 Fuel Oil Release, Risser Property, 1210 Griffin Street, Harrisburg, 499688 8 Lower Paxton Township, Dauphin County, Pennsylvania" (Feb. 24, 2012) (attached hereto as "Exhibit V). 53. On March 5, 2012, John Lydzinski, P.G., acting as a consultant to Minuteman and defense counsel's law firm, Cipriani & Werner, P.C., created an Act 2 remediation plan, which it filed with the DEP on behalf of JSW and Cipriani & Werner. See Notice of Intent to Remediate, filed by John C. Lydzinksi, P.G. on behalf of Adam L. Seiferth, Esquire, c/o J.S. Williams & Son (Mar. 8, 2012) (attached hereto as "Exhibit G") ("An Act 2 release of cleanup liability is being sought for soils under Pennsylvania's Act 2.... If necessary, the building foundation will be underpinned to allow for the removal of additional post-excavation soils. . . . Williams has indicated that the proposed remediation measures will include ... any petroleum-impacted soil followed by the collection of post-excavation soil samples to demonstrate attainment of the Act 2 residential Statewide Health Standards for soil." (emphasis added)). 54 On March 12, 2012, DEP sent to Defense counsel a letter acknowledging the Notice of Intent to Remediate Plaintiff's property. See Letter from DEP to J.S. Williams & Son, c/o Adam Seiferth, Esquire, "Receipt of Intent to Remediate" (Mar. 12, 2012) (attached hereto as "Exhibit H") ("This letter acknowledges receipt of your Notice of Intent to Remediate (NIR) on March 8, 2012, pertaining to the subject site and submitted in accordance with the Land Recycling and Environmental Remediation Standards Act (Act 2)."). 55. On March 27, 2012, Attorney Angino sent Attorney Seiferth an email acknowledging that Defendants agreed to proceed with remediation. Email from Attorney Angino to Adam Seiferth, "Risser v. Pa. Basement Waterproofing" (Mar. 27, 2012) (attached hereto as "Exhibit I") ("I was pleased to learn that steps are being taken to remediate Mrs. Risser's property."). 499688 9 56. On March 26, 2012, Attorney Seiferth indicated to Attorney Sinisi that Minuteman would begin the remediation work on April 2, 2012. See Email from Attorney Seiferth to Attorney Sinisi, "Risser v. PA Basement" (Mar. 26, 2012) (attached hereto as "Exhibit J"). 57. All conversations Plaintiff's counsel had with Attorney Seiferth between February 2012 and early April 2012 further confirmed that Minuteman would perform the necessary remediation work voluntarily, at Defendants' expense. 58. During the remediation process, Minuteman excavated Plaintiff's basement, digging below her basement floor, at depths up to ten feet, to remove the contaminated soil. 59. During the remediation process, oil and contaminated soil which were previously below Plaintiff s basement floor became exposed, creating profuse odors that emitted throughout Plaintiff s house. 60. The emission of said odors caused Plaintiff and her family members nausea, headaches, and dizziness, and upon Plaintiffs request, Minutemen installed electric air filters to help limit the potency of the emissions. 61. Said air filters were installed at three locations throughout Plaintiffs house-one in the basement, one in the living room, and one in the kitchen. 62. To function properly, the air filters were required to run twenty-four hours per day, seven days per week. 63. The air filters' operation, during the course of the excavation, increased Plaintiff s monthly electric bill by approximately fifty dollars ($50.00) per month. 64. On April 6, 2012, in the midst of Minuteman's remediation efforts, Defendants breached their contract with Plaintiff when they advised Plaintiff, by and through Attorney 499688 10 Seiferth, that they intended to transfer billing for all remediation efforts to Plaintiff and/or Plaintiff's counsel, Angino & Rovner, P.C. See Email from Attorney Seiferth to Kristen Sinisi, "FW: Risser v. PA Basement" (Apr. 6, 2012) (attached hereto as "Exhibit IC'). 65. At no time prior to April 2012, did Defendants express that they would seek reimbursement for or transfer of the remediation expenses. To the contrary, at all times relevant hereto, Attorney Seiferth's communications to Plaintiffs counsel were consistent with the valid and enforceable contract between Plaintiff and Defendants, and more specifically, Defendants' willingness to voluntarily pay for all Act 2 remediation efforts. 66. In response to Attorney Seiferth's email dated April 6, 2012, Plaintiffs counsel informed him that Defendants agreed to voluntarily pay for remediation. See Ex. K. 67. Attorney Seiferth denied that his client agreed to pay for remediation, but explained, Id. In any event, the contractor will continue to proceed with the remediation work at this time and in the face of the new evidence that this pipe is severely corroded, evidence which the Aufierro [sic] report never considered. We are not waiving any rights, and expressly reserve the right, to pursue reimbursement of the costs incurred for all work subsequent to the soil sampling. 68. On or about April 18, 2012, via telephone conversation, Defense counsel informed Attorney Sinisi that Minutemen had "chased" the leaked oil, in an attempt to remove the same, down to the bedrock of Plaintiff s home. 69. He further explained that as he understood it, pursuant to Act 2, the fact that the oil was "chased" to Plaintiff s bedrock triggered the need for particular measures, including: (a) the installation of monitoring wells, to monitor the contents of Plaintiffs ground water, to be set up for a minimum of two years and monitored quarterly; and (b) possible monitoring of the more than twenty underground, residential water wells 499688 11 within a quarter-mile radius of Plaintiff s home. 70. Additionally, Attorney Seiferth explained that continued remediation in compliance with Act 2 would likely require: (a) excavation outside of the home; and (b) the retention of a structural engineer to address structural support issues that would arise as a result of continued remediation inside Plaintiff s home. 71. Upon information and belief, all of the work detailed in Paragraphs 69 and 70 is required to achieve compliance with Act 2. 72. As such, all of the work detailed in Paragraphs 69 and 70 is part of the remediation for which Defendants specifically agreed to pay. 73. During his conversation with Attorney Sinisi, Defense counsel told her that he had been instructed by Defendants to terminate remediation because it involved costs well above and beyond what Defendants initially expected. 74. On April 18, 2012, Defendants terminated all remediation efforts before achieving Act 2 compliance. 75. Presently, Plaintiff lacks the financial resources to continue remediation and thus, to ascertain the precise extent of her property damages. 76. To date, an unknown amount of fuel oil remains in Plaintiffs sub-surface soils and/or bedrock and may have also leaked into her ground water supply. 77. Upon information and belief, the trapped oil continues to leak into the bedrock of Plaintiffs foundation and surrounding soils, potentially contaminating her ground water supply as well as that of neighboring water wells. 78. To date, the extent of Plaintiff s property damages remain unliquidated. 499688 12 79. As a result of the oil leakage caused by PA Basement and/or JSW, oil fumes emitted throughout Plaintiff's house from about July 7, 2011, through mid-May 2012 and may continue to do so through the present. 80. The fumes interfered substantially with Plaintiff's living and quality of life, especially during periods of rain. 81. As a result of the oil leakage caused by PA Basement and/or JSW, and as a result of Defendants' breach of contract, Plaintiff has been, and continues to be, deprived of the normal and customary enjoyment of her residential property. COUNT I - NEGLIGENCE PAULA R. RISSER V. PENNSYLVANIA BASEMENT WATERPROOFING, INC. 82. Paragraphs 1 through 81 of the Complaint are incorporated herein by reference. 83. The foregoing incident and all of the injuries and damages set forth herein sustained by Plaintiff are the direct and proximate result of the negligent and careless manner in which PA Basement, by and through its employees and/or agents: (a) failed to exercise due care in performing waterproofing services for Plaintiff and thereby severed Plaintiff's fuel-oil line; (b) failed to identify said severance; (c) failed to repair said severance; (d) poured concrete over the severed oil line and the leaked oil; and (e) failed to shut off Plaintiff's oil tank valve, which released oil from Plaintiff s fuel- oil tank and into the severed line. 499688 13 84. The foregoing incident and all of the injuries and damages set forth herein sustained by Plaintiff are the direct and proximate result of the grossly negligent, careless, wanton, and reckless manner in which PA Basement, by and through its employees and/or agents: (a) knowingly and purposefully failed to inform Plaintiff of the severed oil line; (b) knowingly and purposefully failed to repair the oil line which PA Basement's employees and/or agents knew it severed; (c) knowingly and purposefully concealed the severed oil line and its hazardous effects by concreting in the oil line; and (d) recklessly failed to shut off Plaintiff's oil tank valve, which released oil from Plaintiff's fuel-oil tank and into the severed line, while knowing of said severance and of the adverse effects of leaked fuel oil. 85. As a direct and proximate result of PA Basement's actions, approximately seventy (70) gallons of oil leaked from Plaintiff's fuel tank through the severed oil pipe beneath the surface of Plaintiff's basement floor, and an unspecified amount of it remains in Plaintiff's sub- surface soils. 86. As a direct and proximate result of PA Basement's actions, the value of Plaintiff's real property has decreased, and a claim is made therefor. 87. As a direct and proximate result of PA Basement's actions, Plaintiff has incurred damage to her property, for which additional remediation costs will be incurred, and a claim is made therefor. 499688 14 88. As a direct and proximate result of PA Basement's actions, Plaintiff has incurred additional electrical expenses in that she has had to run three (3) air filters twenty-four (24) hours per day, and a claim is made therefor. 89. As a direct and proximate result of PA Basement's actions, Plaintiff may incur future expenses in rendering her property DEP-compliant, and a claim is made therefor. 90. As a direct and proximate result of PA Basement's actions, Plaintiff has been forced to incur additional out-of-pocket expenses, and a claim is made therefor. 91. As a direct and proximate result of PA Basement's actions, Plaintiff has been deprived of the normal and customary enjoyment of her residential property, and a claim is made therefor. 92. As a direct and proximate result of PA Basement's actions, Plaintiff has undergone, and continues to undergo, great physical and mental pain and suffering, humiliation, great inconvenience, reduction in her quality of life, and a loss of life's pleasures and enjoyment, and a claim is made therefor. 93. The actions of PA Basement, as set forth in Paragraph 84, constitute conduct far beyond negligence and exceeding the boundary of outrageous, wanton, and reckless conduct, warranting the award of punitive damages, and a claim is made therefor. WHEREFORE, Plaintiff Paula R. Risser demands judgment against Defendant Pennsylvania Basement Waterproofing, Inc. in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest, costs, and punitive damages, and in excess of any jurisdictional amount requiring compulsory arbitration. 499688 15 COUNT II - NEGLIGENCE PAULA R. RISSER V. JAMES WILLIAMS d/b/a J.S. WILLIAMS AND SON 94. Paragraphs 1 through 93 of the Complaint are incorporated herein by reference. 95. The foregoing incident and all of the injuries and damages set forth herein sustained by Plaintiff are the direct and proximate result of the negligent and careless manner in which JSW, by and through its employees and/or agents: (a) failed to exercise due care in performing waterproofing services for Plaintiff and thereby severed Plaintiff s fuel-oil line; (b) failed to identify said severance; (c) failed to repair said severance; (d) poured concrete over the severed oil line and the leaked oil; and (e) failed to shut off Plaintiff's oil tank valve, which released oil from Plaintiff's fuel- oil tank and into the severed line. 96. The foregoing incident and all of the injuries and damages set forth herein sustained by Plaintiff are the direct and proximate result of the grossly negligent, careless, wanton, and reckless manner in which JSW, by and through its employees and/or agents: (a) knowingly and purposefully failed to inform Plaintiff of the severed oil line; (b) knowingly and purposefully failed to repair the oil line which JSW's employees and/or agents knew it severed; (c) knowingly and purposefully concealed the severed oil line and its hazardous effects by concreting in the oil line; and (d) recklessly failed to shut off Plaintiff's oil tank valve, which released oil from Plaintiff s fuel-oil tank and into the severed line, while knowing of said severance 499688 16 and of the adverse effects of leaked fuel oil. 97. As a direct and proximate result of JS W's actions, approximately seventy (70) gallons of oil leaked from Plaintiff's fuel tank through the severed oil pipe beneath the surface of Plaintiff's basement floor, and an unspecified amount of it remains in Plaintiff's sub-surface soils. 98. As a direct and proximate result of JS W's actions, the value of Plaintiff's real property has decreased, and a claim is made therefor. 99. As a direct and proximate result of JSW's actions, Plaintiff has incurred damage to her property, for which additional remediation costs will be incurred, and a claim is made therefor. 100. As a direct and proximate result of JSW's actions, Plaintiff has incurred additional electrical expenses in that she has had to run three (3) air filters twenty-four (24) hours per day, and a claim is made therefor. 101. As a direct and proximate result of JSW's actions, Plaintiff may incur future expenses in rendering her property DEP-compliant, and a claim is made therefor. 102. As a direct and proximate result of JSW's actions, Plaintiff has been forced to incur additional out-of-pocket expenses, and a claim is made therefor. 103. As a direct and proximate result of JSW's actions, Plaintiff has been deprived of the normal and customary enjoyment of her residential property, and a claim is made therefor. 104. As a direct and proximate result of JSW's actions, Plaintiff has undergone, and continues to undergo, great physical and mental pain and suffering, humiliation, great inconvenience, reduction in her quality of life, and a loss of life's pleasures and enjoyment, and a claim is made therefor. 499688 17 105. The actions of JSW, as set forth in Paragraph 96, constitute conduct far beyond negligence and exceeding the boundary of outrageous, wanton, and reckless conduct, warranting the award of punitive damages, and a claim is made therefor. WHEREFORE, Plaintiff Paula R. Risser demands judgment against Defendant James Williams d/b/a J.S. Williams and Son, in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest, costs, and punitive damages, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT III - BREACH OF CONTRACT PAULA R. RISSER V. PENNSYLVANIA BASEMENT WATERPROOFING, INC., JAMES WILLIAMS d/b/a J.S. WILLIAMS AND SON, and FREDERICK MUTUAL INSURANCE COMPANY 106. Paragraphs 1 through 105 of the Complaint are incorporated herein by reference. 107. Frederick Mutual agreed to pay for and undertake the initial sampling of Plaintiff's property. See Ex. C. 108. On or about February 23, 2012, Defendants and Plaintiff entered into a written, legally enforceable contract whereby Defendants, by and through their agent, Attorney Seiferth, voluntarily agreed to pay for all remediation work, in accordance with the DEP's Act 2, without limitation, and without an admission of liability. See Ex. B. 109. At all times relevant hereto, Attorney Seiferth is, and has been, an agent of Defendants. 110. At all times relevant hereto, Attorney Seiferth was acting on behalf of Defendants, with actual, implied, and/or inherent authority. 499688 18 111. At all times relevant hereto, Attorney Seiferth has had the authority to, and in fact did, bind Defendants to contracts he entered into on their behalf. 112. On or about February 23, 2012, Plaintiff's counsel assented. See Ex. E. 113. In exchange for Defendants' promise to pay for the remediation work, Plaintiff agreed to credit Defendants all monies expended on remediation efforts toward a potential jury verdict. See Ex. B. 114. Plaintiff further agreed to permit Defendants' experts, Minuteman, to perform the remediation work rather than engaging her own expert to perform it. 115. Defendants' and Plaintiff's exchange on February 23, 2012, created a valid, binding, and legally enforceable contract (hereinafter, "the Contract"). 116. Pursuant to the Contract, remediation efforts commenced in early April 2012. 117. On or about April 11, 2012, Defendants materially breached the Contract by expressing their intent to: (a) transfer the billing of all remediation expenses to Plaintiff and/or Angino & Rovner; and (b) pursue reimbursement of the costs Defendants incurred for all work subsequent to the initial soil sampling. See Ex. K. 118. In another email sent later the same day, Attorney Seiferth advised that nonetheless, Minuteman would still proceed with the remediation. Ex. K. 119. On or about April 18, 2012, Defendants materially breached the Contract by terminating all remediation efforts. See Email from Attorney Sinisi to RCA Group, "Risser 499688 19 update: remediation cancelled again" (Apr. 18, 2012) (attached hereto as "Exhibit L") (summarizing Attorney Sinisi's telephonic communication with Attorney Seiferth). 120. As a direct and proximate result of Defendants' breach, Plaintiff will be forced to incur the expenses of completing remediation in compliance with DEP's Act 2 provisions, a process Plaintiff would not have commenced but for Defendants' contractual promise to pay for the same. 121. Because Plaintiff's property damages remain unliquidated at this time, and because Plaintiff lacks the financial resources to complete the remediation, Plaintiff has no adequate remedy at law and therefore seeks Defendants' specific performance of its contractual obligations. 122. Alternatively, should this Honorable Court deem specific performance an inappropriate remedy, Plaintiff will be forced to incur the expenses of completing remediation in compliance with DEP's Act 2 provisions, and a claim is made therefor. WHEREFORE, Plaintiff Paula R. Risser demands judgment against Defendants Pennsylvania Basement Waterproofing, Inc., James Williams d/b/a J.S. Williams and Son, and Frederick Mutual Insurance Group in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest, costs, and punitive damages, and in excess of any jurisdictional amount requiring compulsory arbitration. 499688 20 COUNT IV - PROMISSORY ESTOPPEL PAULA R. RISSER V. PENNSYLVANIA BASEMENT WATERPROOFING, INC., JAMES WILLIAMS d/b/a J.S. WILLIAMS AND SON, and and FREDERICK MUTUAL INSURANCE COMPANY 123. Paragraphs 1 through 122 of the Complaint are incorporated herein by reference. 124. At all times relevant hereto, Attorney Seiferth is, and has been, an agent of Defendants. 125. At all times relevant hereto, Attorney Seiferth was acting on behalf of Defendants, with actual, implied, and/or inherent authority. 126. At all times relevant hereto, Attorney Seiferth has had the authority to, and in fact did, bind Defendants to contracts he entered into on their behalf. 127. Defendants, by and through their agent Attorney Seiferth, promised Plaintiff to perform and to "voluntarily pay for" the remediation work required by Act 2. Ex. B. 128. Accordingly, upon information and belief, Defendants authorized Minuteman to file a Notice of Intent to Remediate Plaintiff's property with the DEP. See Ex. H. 129. Defendants had actual knowledge that Plaintiff did not undertake remediation earlier because she lacked the financial wherewithal to do so. 130. Defendants should have reasonably expected that their promise would induce action and/or forebearance on Plaintiff's part. 131. Defendants' promise did, in fact, induce action and/or forebearance on Plaintiff's part. 499688 2 1 132. Specifically, Plaintiff's counsel responded to Attorney Seiferth's email, noting that Plaintiff was prepared to move forward with the remediation efforts articulated by defense counsel. See Ex. E. 133. In relying on Defendants' promise, Plaintiff promised to credit Defendants, for all monies expended during remediation, toward a potential jury verdict. 134. Plaintiff further refrained from engaging her own expert to perform the remediation work and permitted Defendants' expert to do so, without inquiring into the costs associated therewith. 135. In so relying, Plaintiff permitted Defendants' experts, Minuteman, to dig numerous holes in Plaintiff's basement, which in some areas, went the entire way down to the bedrock of Plaintiff's foundation, exceeding ten feet in depth. 136. In so relying, Plaintiff permitted representatives from DEP, at Minuteman's request, to visit and/or inspect Plaintiff's premise to determine Act 2 compliance. 137. Upon information and belief, having learned that Minuteman chased the oil leakage to Plaintiffs bedrock, DEP instructed that additional remediation efforts may be necessary, including: (a) the installation of monitoring wells, to monitor the contents of ground water, which would need to be set up for a minimum of two years and monitored quarterly; and (b) possible monitoring of the more than twenty residential water wells within a quarter-mile radius of Plaintiff's home. 138. Subsequently, Defendants terminated all remediation efforts without achieving Act 2 compliance. 499688 22 139. Defendants know that Plaintiff does not have the financial wherewithal to fund remediation. 140. After agreeing to pay for remediation and undertaking the first phase of remediation, Defendants terminated all remediation efforts after it believed it acquired the necessary evidence to defend this case. 141. Having obtained the benefit of their promise, Defendants now seek to renege the promise they made to Plaintiff. 142. Specifically, Defendants attempt to avoid their promise to complete remediation in accordance with Act 2 and attempt to shift all costs associated therewith to Plaintiff and/or Angino & Rovner, P.C. 143. Defendants have already put the DEP on notice and have already excavated a substantial portion of Plaintiff's basement, which, in its current state, is not useable for its ordinary and customary purposes by Plaintiff. 144. Injustice can be avoided only by enforcing Defendants' promise. 145. Because Plaintiff's property damages remain unliquidated at this time, Plaintiff has no adequate remedy at law and therefore seeks Defendants' specific performance of its contractual obligations. 146. Alternatively, should this Honorable Court deem specific performance an inappropriate remedy, Plaintiff will be forced to incur the expenses of completing remediation in compliance with DEP's Act 2 provisions, and a claim is made therefor. WHEREFORE, Plaintiff Paula R. Risser demands judgment against Defendants Pennsylvania Basement Waterproofing, Inc., James Williams d/b/a J.S. Williams and Son, and 499688 23 Frederick Mutual Insurance Group in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest, costs, and punitive damages, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT V - VICARIOUS LIABILITY PAULA R. RISSER V. JAMES S. WILLIAMS and DERECK S. WILLIAMS 147. Paragraphs 1 through 146 of the Complaint are incorporated herein by reference. 148. At all times relevant hereto, James S. Williams has been the Senior Partner and an owner of JSW. 149. At all times relevant hereto, Dereck S. Williams has been the Junior Partner and an owner of JSW. 150. Upon information and belief, JSW is a general partnership which is jointly carried on by James S. Williams and Dereck S. Williams for the purpose of generating and sharing in its profits. 151. As such, James S. Williams and Dereck S. Williams are jointly liable for all debts and obligations of the partnership pursuant to 15 Pa.C.S. §§ 8325, 8327. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendants James S. Williams and Dereck S. Williams, finding them vicariously liable for the debts of James Williams d/b/a J.S. Williams and Son, in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest, costs, and punitive damages, and in excess of any jurisdictional amount requiring compulsory arbitration. 499688 24 Respectfully submitted, Date: June pj, 2012 i; ANGINO & ROVNER, P.C. hard C. A gino, Esquire D. No. 67140 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 SAX: (717) 238-5610 rca@angino-rovner.com Attorney for Plaintiff 499688 25 Exhibit A Pj5 50C7 Y?ra?cclik r?h.c"t? ^? PA LICENSE - PA 001027 t AGREEMENT This Agreement entered into this day of 20-, by and between PA BASEMENT WATERPROOFING INC., a Pennsylvania Corporation of 1525 Cedar C1iffDrive, Camp Hill, PA 17011, Phone 800-511-6579 Names _ (Hereinafter referred to as "Owner") Phone Address I2 24 city >. State' % Zip _ r{/> Job Site _ City State Zip PA Basement Waterproofing Inc. and Owner in mutual consideration and intending to be legally bound hereby agree as follows: 1. PA Basement Waterproofing Inc. agrees to famish materials, labor, and equipment to install sub grade/sub-floor water redrrectional equipment in the "AREA TO BE SERVICED" ("Work"). 2. PA Basement Waterproofing Inc. agrees to start Work within approximately days and complete Work within approximately days. The.parties agree that the completion date may be extended due to circumstances beyond the control of PA Basement Waterproofing Inc. such as weather or unforeseen conditions at the area to be serviced. 3. Owner agrees to pay PA Basement Waterproofing Inc. as full compensation for the Work as follows: TOTAL CASH PRICE: J l /, AMOUNT TO BE PAID BEFORE PA BASEMENT WATERPROOFING INC. BEGINS WORK: $ BALANCE DUE UPON COMPLETION: $ Any payment not made within ten (10) days of its due date shall incur a late fee of 1,5% per month until paid. The 1.5% shall be reduced to the highest rate permitted by law. If financed, complete the attached Federal Truth in Lending Forms and Loan Agreement. If Financing cannot be obtained, down payments made by Owner will be returned and this Agreement will be canceled. This Agreement is not a financing commitment. Financing is provided by a separate lending institution. The lender reserves the right to accept or reject your credit. 4. AREATO BE SERVICED AND DESCRIPTION OF WORKTO BE PERFORMED. Total linear feet to be serviced ft. AREA TO BE SERVICED Rear Cove Left f Cove Front Cove DESCRIPTION OF WORK TO BE PERFORMED LYInterior: PA Basement Waterproofing Inc. will install High Impact polymeric drain core with flow channels Right 12(Sub-floor pressure relief system (3" or 4" a.d.s. flexible Cove core perforated piping) O?Ieavy Duty Submersible Pump System (# _ /Jh ? Base Cove Plate System (Solid lines indicate cove area. The cove area is where the wall and floor meet) ? Other: See attached ADDENDUM THE AREA TO BE SERVICED will be marked with "X". No waterproofing Services will be performed to any area not containing an "X" \ PA BASEMENT WATERPROOFING INC. RECOMMENDS A AFOUR WALLS BE WATERPROOFED 5. Cancellation. Owner may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See the Notice of Cancellation form for an explanation of this right. 6. Permits. Owners shall be responsible for obtaining and paying for all permits and approvals necessary for PA Basement Waterproofing Inc. to perform its work. 7. Approval. This Agreement is not binding on PA Basement Waterproofing Inc. until it is approved and signed by an officer of PA Basement Waterproofing Inc. 8. Access. Owner grants unrestricted access to work areas for PA Basement Waterproofing Inc.'s labor, equipment and vehicles. Owner agrees to allow areas for storage of materials. Owner agrees to keep driveways clear and available for movement and parking of vehicles and trucks during normal working hours. PA Basement Waterproofing Inc. shall not be held responsible for damage to driveways, walks, lawns, shrubs, or other vegetation, by movement of trucks, laborers, equipment, materials, debris, etc. or otherwise. 9. Interior Access. If it is necessary to inspect and/or work from the interior, as determined by PA Basement Waterproofing Inc. in its sole discretion, Owner agrees to provide complete access to and make the walls and floors bare in the Area to Be Serviced and agrees to make designated areas accessible to PA Basement Waterproofing Inc. Owner is responsible for replacement of same only after notification from PA Basement Waterproofing Inc. 10. Pre-existing Conditions. PA Basement Waterproofing Inc. is not responsible for the repair of pre-existing structural conditions or problems. PA Basement Waterproofing Inc. will notify Owner if PA Basement Waterproofing Inc. discovers pre-existing structural problems during its Work. Pre-existing structural conditions and problems include deficiencies which existed in initial construction of the foundation or improper, unsound or no footings, hidden deficiencies uncovered as a result of a second slab floor overlay, sub-quality existing slab, slab cap over dirt flooring, crumbled floor slab, sub-floor soil slippage, or excessive erosion and/or undermining. The charges to Owner shall be limited to cost plus 20% to cover PA Basement Waterproofing Inc.'s overhead, if not initially contracted for. and if ever necessary. For PA Basement . Waterproofing, Inc. to install a floor system, other than around the perimeter, due to springs, hydrostatic pressure, or otherwise. NOTICE TO OWNER: DO NOT SIGN THIS AGREEMENT IN BLANK, OWNER IS ENTITLED TO A COPY OF THIS AGREEMENTAT THE TIME IT IS SIGNED. By signing this Agreement Owner acknowledges receipt of a copy of this Agreement. By signing this Agreement, Owner and all persons signing for Owner and with Owner agree to all terms, conditions and provisions contained in this Agreement. The terms and conditions include the terms on this page and on the reverse side. Owner and all persons signing the Agreement for and with Owner shall be severally and jointly obligated and liable herein. This Agreement)is not binding on PA Basement Waterproofing Inc: until it is approved by an officer of PA Basement Waterproofing Inc. IN WITNESS WHEREOF, int nding tolbe legally bound, the parties save hereunto set their hands and seals the day and year above written. 'J ail l { \ 11 ?i i% ?L Inspector Owner J Approved by PA BASEMENT WATERPROOFING INC. By: Officer Owner I agree to bound unconditionally to the terms and conditions in the Agreement. Terms and Conditions 11. PA Basement Waterproofing Inc. Cancellation. PA Basement Waterproofing Inc. reserves the rights to cancel this Agreement if during its Wbrk it discovers conditions which would prevent the installation of a sub- floor system. Owner agrees to hold PA Basement Waterproofing, Inc. harmless for damages which may result from cancellation of this Agreement. 12. Special Work Limitations/Requirements A. Exterior Work Limitation, if exterior work is preformed, PA Basement Waterproofing Inc.'s responsibility shall be limited to rough grading. PA Basement Waterproofing Inc. does not guarantee the survival of grass, plantings, trees or shrubbery. B. Pressure Relief System. If a pressure relief floor system is installed initially or at a later date, the materials and methods(s) used shall be at the sole discretion of PA Basement Waterproofing Inc. If floor of cove system is installed is such installation will be above and/or below floor as Pa Basement Waterproofing Inc. deems necessary. C. Submersible Sump Requirements. If a submersible pump is installed, Owner agrees to supply adequate electrical power and Owner agrees to install outlets and electrical extension cords for the submersible pumps. If Owner does not provide these items the pump may nor function properly. PA Basement Waterproofing Inc. will not be responsible and PA Basement Waterproofing will not provide any warranty whatsoever. Sump pump discharge hoses will terminate at the splash block or at any other area PA Basement Waterproofing Inc. deems best, D. Foundation and Seepage. If Owner has a stone , terra cotta, vertical layer, poured concrete , or brick foundation, PA Basement Waterproofing Inc, has advised owner to have walls rough castered as part of this Agreement. E. Limitations of Scope of Work. The agreed upon price does not include rerouting or replacement of vents, pipes, ducts, wiring conduits, tanks, utilities, wall or floor coverings, shrubbery, abutments, or obstructions. If necessary for PA Basement Waterproofing Inc. to drill through exterior concrete, asphalt, wood, slate, brick, or substance other than earth, PA Basement Waterproofing Inc. assumes no liability for damage to same, but will repair it in a workmanlike manner where PA Basement Waterproofing Inc. shall not be responsible for damage to paneling, tile, and carpet or other obstruction, or property on wall, floor, or otherwise. 13. WARRANTY AND LIMITATIONS OF LIABILITY. A Warranty Certificate will be issued upon full payment after a short processing time. The Warranty is lifetime on PA Basement Waterproofing Inc. system and seven years on sump pump. There will be no warranty unless PA Basement Waterproofing Inc. is paid in full. If any alteration is made to PA Basement Waterproofing Inc. system without written permission from PA Basement Waterproofing Inc. will have no further obligation to Owner. PA Basement Waterproofing Inc. warrants cement work as to proper mix and workmanship but does not guarantee cement against cracking, peeling or settling. PA BASEMENT WATERPROOFING INC. DOES NOT WARRANT OR ASSUME RESPONSIBILTY WHATSOEVER FOR ANY DAMAGE TO THE INTERIOR OF ANY BUILDING OR ITS CONTENTS CAUSED BY OR CLAIMED TO BE CAUSED BY WATER SEEPAGE OR INFILTRATION. PA Basement Waterproofing Inc. does not warrant against conditions over which it has no control, including but not limited to structural damage, conditions of subsoil masonry, damage caused by other, fire, floods, backing up of sewer systems, or acts of God. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT AND THE WARRANTY, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES MERCHANTABILTIY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES OF HABITABILITY AND WARRANTY COVERAGE FOR LATENT DEFECTS MADE BY PA BASEMENT WATERPROOFING INC. PA BASEMENT WATERPROOFING, INC. SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO OWNER FOR CONSEQUENTIAL OF INCIDENTAL DAMAGES EVEN IF THE WATERPROOFING SYSTEM FAILS AND OWNER SUSTAINS DAMAGES TO PROPERTY AND FURNITURE. PA BASEMENT WATERPROOFING INC.'S LIABILITY AND RESPONSIBILITY UNDER THIS AGREEMENT IS LIMITED TO THE SERVICE OF WATER ENTERING THE FLOOR COVE AREA OF THE FOUNDATION. PA BASEMENT WATERPROOFING INC. IS NOT RESPONSIBLE FOR CONDENSATION, SWEATING, POROUS OR FILLED BLOCK, DAMPNESS OR WATER ENTERING THE PREMISES THROUGH ABOVE SOIL LEVELS, SURFACE RUNOFF WATER, SUB -SOIL CEILINGS, OR OTHER ADDITIONAL AREA NOT SPECIFIED IN THIS AGREEMENT. PA BASEMENT WATERPROOFING INC. IS NOT RESPONSIBLE FOR CONSEQUENTIAL WATER OR PROPERTY DAMAGE. PA BASEMENT WATERPROOFING INC IS ONLY RESPONSIBLE FOR THE WATER ENTERING THE FLOOR COVE AREA OF THE FOUNDATION. PA Basement Waterproofing Inc. shall not be liable or responsible for any damage beyond the amount actually paid by Owner to PA Basement waterproofing Inc. PA Basement waterproofing Inc. waterproofing liability is limited to the amount paid by Owner directly to PA Basement Waterproofing Inc. for the Work. 14. Remodeling Restrictions. Owner agrees to maintain system for one year (1) from date of installation before Owner remodels or improves the basement or other area serviced; otherwise the Warranty hereunder shall be null and void. 15. Conditions in work Area. PA Basement Waterproofing Inc. will exercise caution during its Work and will leave "Broom Clean". Owner understands and accepts that dust and general disruption will remain after Work is complete. 16. Service Calls. Service calls for continuing seepage problems within the scope of the Warranty will be made with no additional charge to Owner. However, if PA Basement waterproofing Inc. finds the problem in an area where no Work was done and therefore it is not covered by Warranty, or if the problem is not an actual seepage problem (such as leaking pipes, condensation, high humidity, sewer back-ups, and unplugged sump pump, etc.), then PA Basement Waterproofing Inc. reserves the right to charge Owner a $75.00 fee for service. 17. Owner Default. If Owner is in breach of any of the terms or conditions of this contract, including, without limitation, nonpayment or attempted cancellation (after the 3 day cancellation period), Owner shall be in default, and Pa Basement Waterproofing Inc. shall be entitled to payment of the full agreement price as well as any remedies provided by law and/or equity. However, PA Basement Waterproofing Inc. agrees that if the scheduled work has begun at the time of the attempted cancellation, PA Basement Waterproofing Inc. will accept thirty percent (30%) of the full cash price. 18. Joint and Several Liabilities. This is a joint and several agreement and it means that all the Owners as a group and each of the owners as an individual are responsible to PA Basement Waterproofing Inc. for oil of the provisions of this agreement, If there is a default, PA Basement Waterproofing Inc. can sue all of the Owners or, PA Basement waterproofing can bring a lawsuit against any one Owner separately (severally). 19. Invalidity of Provisions. In the event any one or more of the provisions of this Agreement is declared to be invalid by a Court, all other terms and conditions of this Agreement shall be binding and enforceable. 20. Entire Agreement. This Agreement and the attached Addenda, if any, constitutes the entire Agreement between PA Basement Waterproofing Inc. Owner acknowledges that no promise representation of warranty, except those expressly set forth in writing, have been made by Pa Basement Waterproofing Inc. or its agents. No modification or addition to this Agreement will be valid or binding upon PA Basement waterproofing Inc. unless agreed to in writing. 21. Assignment. PA Basement Waterproofing Inc. has the right to assign and /or transfer this Agreement and other instruments executed by owner. Owner may not assign of transfer this Agreement without written consent of PA Basement waterproofing Inc. 22. Jurisdiction and Venue. This agreement shall be governed by and construed it accordance with the laws of the Commonwealth of Pennsylvania. Owner consents to the exclusive personal jurisdiction and venue of the Courts of Cumberland County, Pennsylvania for all litigation which may be brought with respect to or arising out of the terms of and the transactions and relationships contemplated by this agreement. ACVktIM mur®. Owner: Address: /j PA. Basement Waterproofing provides this Service Warranty ("Warranty") for labor and materials related to the area contracted against water seeping in from the lower wall cove (where wall meets floor), the floor area as described below, and where a pressure relief system has been installed ("work"). Customer recognizes thatthe.Service Warranty is notvalid until all monies due to PA Basement Waterproofing are paid in full. V3 T Described Areas (one or more must be checked) All four (4) walls (total perimeter)-Warranty includes total Perimeter offloor and total middle floor area. 0 1-2-3 Walls- Warranty includes immediate floor area within 0 3 feet of wall as specified on contract. o Brick/Terra Cotta, Stone, Vertical layer, or poured concrete Foundation, PA Basement Waterproofing shall be responsible to service the seepage through the lower wall/floor system and not for seepage through wall(s) or wall Mortar/joints unless listed under other. Length of Warranty: o One (1) year o Five 5 Entire Period in which owner holds title to property. Limited Warranty: Described Equipment: Submersible Pump(s) war placement: o Two (2) Years X Seven (7) Years Notice: Submersible pump equipment is powered by electrical power and must always be plugged in to a power source. By k?IR?llfl4Y!`??1[?, ?'1?, SU 4lAFiRAMTRAMM Upon endorsement by holder and the transmittal of this document to Pa Basement, this warranty is Transferable and assignable one time to parties as yet unnamed for the duration of the original stated warranty in accordance with the terms and conditions specified herein, provided that the new owners meet all terms and conditions of the agreement accompanying this warranty. To be effective, this service warranty transfer must be notarized and sent to Pa Basement's office within 30 days of transfer of title. _ 0.00 NAME FEE ADDRESS HOLDER'S NAME (PRINT) CITY, STATE, ZIP HOLDER'S SIGNATURE (HOME PHONE) (WORK PHONE) (CELL PHONE) DATE (PA BASEMENT) 1. The conditions and the construction materials of the foundation walls and floor may, at times, require additional repair and/or reinforcement from the inside. In this event, it will be Owner's obligation to provide access to the walls and floors by removing stored materials, paneling, or other obstructions. This will only be required when Pa Basement deems it necessary in order to service the problem. Owner recognizes that this Warranty is for labor and materials of system only and does not include wall or floor coverings and personal items in basement. II. Pa_ Basement is not responsible for chafing, condensation, sweating, porous or filled block or defective mortar around block, and in that event Pa Basement may recommend the application of exterior coatings to the walls or foundation, which would be at additional cost to Owner. Should Owner decide to pursue this additional work, the service for exterior excavation and the application of impermeable sealants or the application of interior sealants, coatings or rough coatings shall be at Owner's additional cost. III. Pa Basement is not responsible for dampness or water entering the Premises through above soil levels, surface runoff water, flooding, water entering windows, doors, floor, stairways, chimneys, conduit pipes, bomb shelter ceilings, or subsoil ceilings, or blockage caused by tree roots. IV. If seepage occurs in the areas covered by this Warranty, Owner shall first determine whether the sump pump is functioning. If the sump pump is functioning, Owner should call Pa. Basement immediately. If Pa Basement deems it necessary, Pa Basement will dispatch a service representative to the Premises to determine if additional service is required. If additional service is required, Pa Basement will perform such services as soon as practicable under the circumstances. V. Pa Basement warrants cement work as to proper mix and workmanship, but does not guarantee cement against cracking, dusting, peeling, chafing, settling, or any other conditions. VI. The Work, inspection, and service will be performed during normal working hours. If the problem does not arise from an area coved by the Work, then Pa Basement may charge the Owner a Minimum fee of $80.00 plus additional fees. VII. Pa Basement shall leave the area where the Work or service is performed in a "broom clean" condition. Nevertheless, some dust and general disruption may remain after the Work or service is completed. Owner should cover all items in the areas adjacent to where the Work or service is to be performed with a dust proof tarp or other similar covering and take similar steps to keep dust and residue from entering other parts of the Premises including, turning off blowers to heater and air conditioning systems and covering doorways and openings with dust proof tarps. Under no circumstances is Pa Basement responsible for the removal or cleaning of dust and residue or the damage resulting from any dust or residue. VIII. Owner shall immediately notify Pa Basement of any breach by Pa Basement of any failure of the Work or service to conform to the terms of the Agreement. Pa Basement shall have the right to re-enter the Premises to inspect the Premises and shall be given a reasonable opportunity to clue any problems with the Work or service. IX. Pa Basement is not undertaking any Work on the exterior of the Premises except as expressly set forth in this Agreement. Therefore, the agreed upon total price in the Agreement does not include rerouting, replacement or cleaning of gutter, downspouts, vents, pipes, ducts, wiring conduits, or the removal or replacement of shrubbery, abutments or other obstructions. Pa Basement's only responsibility with regard to any exterior work would be to perform rough grading, and Pa Basement does not guarantee the survival of grass, removed plantings, trees or shrubbery when exterior work is performed. X. Should any alteration be made to the Work by anyone other than Pa Basement without the express written permission of Pa Basement or should Owner breach the agreement entered into by Pa Basement and Owner for the Work (Agreement"), all warranties provided under the Agreement are deemed null and void and Pa Basement shall be relieved of any obligation to make any service calls. Date Issued Under Contract: # Signature Date Signature Date Lr-.-- I Exhibit B Kristen Sinisi From: Adam Seiferth <aseiferth@c-wlaw.com> Sent: Thursday, February 23, 2012 3:09 PM To: Angie Horchler; jgiurintano@tthlaw.com; Kristen Sinisi Cc: Mary Henry Subject: RE: Risser v. Pa Basement Waterproofing As Mr. Giurintano referenced, I am now representing PA Basement and JS Williams & Son. As Mr. Angino is apparently not aware, we have engaged an independent contractor to proceeding with the remediation work and to address DEP's Act 2 compliance, without admission of liability, and will voluntarily pay for the same. Soil sampling will be completed this Tuesday, February 23, 2012. If this is now unacceptable, please advise immediately. Regarding the remaining issues below, please see my letter dated February 14, 2012, and I will await your client's responses to the discovery served on that date. If there are any questions or concerns, please contact me by phone. Adam L. Seiferth, Esquire CIPRIANI & WERNER, P.C. 1011 MUMMA ROAD, SUITE 201, LEMOYNE, PA 17043 P:717-975-9600 C:717-756-2161 F:717-975-3846 PENNSYLVANIA - NEW JERSEY - WEST VIRGINIA From: Angie Horchler [mailto:ahorchler@angino-rovner.com] Sent: Thursday, February 23, 2012 2:42 PM To: Adam Seiferth; jgiurintano@tthlaw.com Subject: Risser v. Pa Basement Waterproofing *This email was dictated and approved by Richard Angino. Mr. Seiferth and Mr. Giurintano: This afternoon you are having the Risser property tested. I look forward to the results of the tests. Despite the results of the test, our demand will still be $100,000. Mrs. Risser, her husband, and her child have been subjected to the fumes from your clients' reckless conduct and will continue to be exposed to fumes until you are authorized to pay for the remedial work required. The Rissers do not have the financial wherewithal to engage someone to perform the remedial work. It is in your client's best interest to authorize payment for the remedial work. You will be given credit toward the eventual jury verdict. If your clients are unwilling to authorize the remedial work, we will bring that matter to the attention of the jury and the jury will be able to evaluate the claim as to your clients reckless and outrageous conduct in not only causing the harm, failing to notify the Rissers as to what has been done, and now refusing to voluntarily pay for the remedial work. This case has multiple components in evaluating the damages: not only negligence but reckless and outrageous conduct with punitive damages. The cost of the remedial work. Pain and suffering, inconvenience, and concern with respect to the toxic fumes; and 4. depreciation of value of the property even after remedial work has been performed. Our demand for $100,000 will satisfy all of those damages if paid within 30 days. If $100,000 is not paid within thirty (30) days, your clients will still have an opportunity to pay for the remedial work and obtain a credit on the future jury verdict. If your clients do not pay for the remedial work, our offer of $100,000 to settle will be withdrawn after 30 days and we will go to trial. Richard C. Angina Richard C. Angino, Esquire Angino & Rovner, P. C. 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 rca(c)angino-rovner. com Exhibit C Kristen Sinisi From: Adam Seiferth <aseiferth@c-wlaw.com> Sent: Monday, February 13, 2012 3:24 PM To: Kristen Sinisi Cc: Mary Henry Subject: Risser v. PA Basement Follow Up Flag: Follow up Flag Status: Flagged Kristen, Per my voice message, please give me a call to discuss this matter. My carrier has agreed to pay for the initial sampling to be performed by a company I have selected. It is not the same company who initially inspected the home. My contact person will need to briefly inspect the site prior to proceeding with the sampling, and is available to do that this week, except Wednesday. We can then schedule the sampling. Once the sampling is completed, we will get an estimate for the Act 2 remediation compliance and go from there. If your client is agreeable to proceeding in this fashion, please let me know and advise when we could stop by the home to do the initial inspection. Adam L. Seiferth, Esquire CIPRIANI & WERNER, P.C. 1011 MUMMA ROAD, SUITE 201, LEMOYNE, PA 17043 P:717-975-9600 C:717-756-2161 F:717-975-3846 PENNSYLVANIA - NEW JERSEY - WEST VIRGINIA Exhibit D Kristen Sinisi From: Angie Horchler Sent: Thursday, February 23, 2012 2:42 PM To: aseiferth@c-wlaw.com'; jgiurintano@tthlaw.com Subject: Risser v. Pa Basement Waterproofing *This email was dictated and approved by Richard Angino. Mr. Seiferth and Mr. Giurintano: This afternoon you are having the Risser property tested. I look forward to the results of the tests. Despite the results of the test, our demand will still be $100,000. Mrs. Risser, her husband, and her child have been subjected to the fumes from your clients' reckless conduct and will continue to be exposed to fumes until you are authorized to pay for the remedial work required. The Rissers do not have the financial wherewithal to engage someone to perform the remedial work. It is in your client's best interest to authorize payment for the remedial work. You will be given credit toward the eventual jury verdict. If your clients are unwilling to authorize the remedial work, we will bring that matter to the attention of the jury and the jury will be able to evaluate the claim as to your clients reckless and outrageous conduct in not only causing the harm, failing to notify the Rissers as to what has been done, and now refusing to voluntarily pay for the remedial work. This case has multiple components in evaluating the damages: 1. not only negligence but reckless and outrageous conduct with punitive damages. 2. The cost of the remedial work. 3. Pain and suffering, inconvenience, and concern with respect to the toxic fumes; and 4. depreciation of value of the property even after remedial work has been performed. Our demand for $100,000 will satisfy all of those damages if paid within 30 days. If $100,000 is not paid within thirty (30) days, your clients will still have an opportunity to pay for the remedial work and obtain a credit on the future jury verdict. If your clients do not pay for the remedial work, our offer of $100,000 to settle will be withdrawn after 30 days and we will go to trial. Richard C. Angina Richard C. Angino, Esquire Angino & Rovner, P. C. 4503 N. Front Street Harrisburg, PA 17110 191 (717)238-6 7 rcakangino-rovner. com Exhibit E Kristen Sinisi From: Kristen Sinisi Sent: Thursday, February 23, 2012 4:38 PM To: 'Adam Seiferth'; Angie Horchler Cc: Mary Henry Subject: RE: Risser v. Pa Basement Waterproofing Adam, We are prepared to move forward with testing next week. As we discussed, pursuant to paragraph 13 of Ms. Risser's contract with PA Basement, "If any alteration is made to PA Basement Waterproofing Inc. system without written permission from PA Basement Waterproofing Inc," PA Basement may not be obligated to lionor the warranty. Thus, we ask that you provide such written permission prior to Tuesday. Also, your expert indicated that lie needs Ms. Risser's phone number and email address for the DEP form. I-fer phone number is (717) 350-6910, and her email address is eap_prrl970(-).yahoo.com. Please let me know if you require any further information. (hank YOU, Kri4te*11 N. Si?v, Esqu.i. rei ksinisi(iuangino-rovnencom Angino & Rovner, P.C. 4503 N. Front Street liarrisbUrg. PA 17110 717-238-6791, ext. 3027 The content of this E-mail message is attorney privileged and highly confidential, directed only to the above named person. Therefore; distribution, utilization or copying of this information by anyone other than the designated recipient is strictly prohibited. If you have erroneously received this communication, please notify, us immediately at (717) 238-6791, and return the original message to us by E-mail. Thank you. From: Adam Seiferth [ma I Ito: aseiferth@c-wlaw.com] Sent: Thursday, February 23, 2012 3:09 PM To: Angie Horchler; jgiurintano@tthlaw.com; Kristen Sinisi Cc: Mary Henry Subject: RE: Risser v. Pa Basement Waterproofing As Mr. Giurintano referenced, I am now representing PA Basement and 1S 'Williams & Son. As Mr. Angino is apparently not aware, we have engaged an independent contractor to proceeding with the remediation work and to address DEP's Act 2 compliance, without admission of liability, and will voluntarily pay for the same. Soil sampling will be completed this Tuesday, February 23, 2012. If this is now unacceptable, please advise immediately. Regarding the remaining issues below, please see my letter dated February 14, 2012, and I will await your client's responses to the discovery served on that date. If there are any questions or concerns, please contact me by phone. Adam L. Seiferth, Esquire 1 CIPRIANI & WERNER, P.C. 1011 MUMMA ROAD, SUITE 201, LEMOYNE, PA 17043 P:717-975-9600 C:717-756-2161 F:717-975-3846 PENNSYLVANIA - NEW JERSEY - WEST VIRGINIA From: Angie Horchler [mailto:ahorchler@angino-rovner.com] Sent: Thursday, February 23, 2012 2:42 PM To: Adam Seiferth; jgiurintano@tthlaw.com Subject: Risser v. Pa Basement Waterproofing *This email was dictated and approved by Richard Angino. Mr. Seiferth and Mr. Giurintano: This afternoon you are having the Risser property tested. I look forward to the results of the tests. Despite the results of the test, our demand will still be $100,000. Mrs. Risser, her husband, and her child have been subjected to the fumes from your clients' reckless conduct and will continue to be exposed to fumes until you are authorized to pay for the remedial work required. The Rissers do not have the financial wherewithal to engage someone to perform the remedial work. It is in your client's best interest to authorize payment for the remedial work. You will be given credit toward the eventual jury verdict. If your clients are unwilling to authorize the remedial work, we will bring that matter to the attention of the jury and the jury will be able to evaluate the claim as to your clients reckless and outrageous conduct in not only causing the harm, failing to notify the Rissers as to what has been done, and now refusing to voluntarily pay for the remedial work. This case has multiple components in evaluating the damages: not only negligence but reckless and outrageous conduct with punitive damages. The cost of the remedial work. Pain and suffering, inconvenience, and concern with respect to the toxic fumes; and 4. depreciation of value of the property even after remedial work has been performed. Our demand for $100,000 will satisfy all of those damages if paid within 30 days. If $100,000 is not paid within thirty (30) days, your clients will still have an opportunity to pay for the remedial work and obtain a credit on the future jury verdict. If your clients do not pay for the remedial work, our offer of $100,000 to settle will be withdrawn after 30 days and we will go to trial. Richard C. Angina Richard C. Angino, Esquire Angino & Rovner, P. C. 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 rca(a,angino-rovner. com Exhibit F Jun, 12. 2012 10 :15AM Lenexa, KS • (913) 848-4424 Lexington, KY - (859) 263-2855 Bossier City, LA - (318) 747-7734 Raleigh, NC (919) 786-1414 Bluelleld, VA • (278) 322-5467 www.mrnal.com No. 6259 P. 9 Kingsport. TN - (423) 279-9775 Ashland, VA - (804) 798-8525 Beckley. WV • (304) 255-8937 Charleston, WV • (304) 344-3970 Blacksburg. VA • (640)605-9005 2 Gunpowder Road 1 Mechanicsburg, PA 170501(304) 809.05351 Fax (304) 250-4884 / Emall @mmal _com February 24, 2012 Mr. George Wolfe Township Manager Tower Paxton Township 425 Prince Street Harrisburg, Pennsylvania 17109 'V'IA CERTIFIED MAIL - RETURN RECEIPT REQUEST Re. No. 2 Fitel Oil Release Risser Property • 1210 Grif n Street - Harrisburg, Lower Paxton Township Dauphin County, Pennsylvania Dear Mr. Wolfe: Pennsylvania's Land Recycling and Environmental Remediation Standards Act (Act 2) require that a Notice of Intent (NIR) be provided to the municipality in which the site is located. In accordance with the provisions of Act 2, we are formally notifying you of our intent to remediate the above-referenced property. A copy of the NIR, which has been sent to the Pennsylvania Department of Environmental Protection (P. LIM, is enclosed. Tlvs notice will be published in The Patriot News. This notice is made under provision of the Land Recycling and Environmental Standards Act) the Act of May 19, 1995, P.L. #4, No. 2. Should you have any questions or comments regarding the proposed rernediation, please do not hesitate to contact me at (304) 809-0535 or via e-mail at 'ohn.l dziX! mmal.com. Sincerely, Marshall Miller & AssociRtes, Inc, Environ/nentalScience and Engineering C. John C. Lydzinski, P,G, Senior Projeet Manager left Enclosure (SP1296) PC; project Correspondence Fie ENERGY & MINERAL RESOURCeS - CIVIL & STRUCTURAL ENGINEERING - ENVIRONMENTAL SCIENCES • HYOROGEOLOGY & GEOLOGY CARBON MANAGEMENT- EXPERT WITNESS TESTIMONY - MINING ENGINEERING - GEOPHYSICAL. LOGGING SERVICES- PETROLEUM ENGINEERING Exhibit G J u n. 12. 2012 10 :12AM Lenexa, KS - (913) 848-4424 Lexington, KY + (859) 263.2855 Bossier City, LA • (318) 741-7734 Raleigh, NC 6 (919) 786.1414 Bluefield, VA • (270) 322-5467 www.mmal.com No. 6259 P. 2 Kingsport, TN - (423) 279-9776 Ashland, VA - (804) 799-0525 Beckley, WV - (304) 255-8937 Charleston, WV - (304) 344-3970 Blacksburg, VA • (540)605.9005 2 Gunpowder Road I Mechanicsburg, PA 170501 Tel (717) 230-18381 Fax (717) 230-1839 I Email carp@mmal,com March 5, 2012 Ms. Kathleen Horvath RECEIVED DEP SOLITHCENTRAL REGION Land Yecycling and Waste Management Pennsylvania Department of Environmental Protection LMAR 8 2012 Southeentral Regional Office NMEIV7gL CLEgNUP 909 Blmerton Avenue Harrisburg, Pennsylvania 17110 Re: Notice of Intent to Remediate (NIR) - Risser Residence -1210 Grim Street Lower Paxton Township - Dauphin County, Pennsylvania Dear Ms. Horvath* On behalf of J.S. Williams & Son and its legal counsel, Cipriani & Werner, P.C., Marshall Miller & Associates, Inc. (MM&A) is pleased to enclose a copy of the Notice of Intent to Remediate (NIR) for the above-referenced property (Site). In accordance with the Pennsylvania's Land Recycling and Remediation Standards Act (Act 2), Chapter 250 regulations, copies of the NIR. and associated cover letters have been issued to the Lower Paxton Township manager and for publication in The Patriot Dews. Please review the enclosed NIR. If you have any questions, please feel free to contact me at your earliest convenience at (717) 230.1838 or via e-mail at john.lydziiiski@mmal.com. We appreciate the Department's assistance with this Act 2 project. Sincerely, Marshall Miller & Associates, Inc, ,Environmental Science & Engineering John . Lydz ns P.G. Vice President Jclldb Enclosure (SP1296) CC: IS. William & Son Cipriani & Werner, P.C. File ENERGY & MINERAL RESOURCES - CIVIL & STRUCTURAL ENGINEERING - ENVIRONMENTAL SCIENCES - NYOROGEOLOGY & GEOLOGY CARBON MANAGEMENT- EXPERT WITNESS TESTIMONY - MINING ENGINEERING - GEOPHYSICAL LOGGING SERVICES- PETROLEUM ENGINEERING Jun, 12, 2012 10:12AM 2530-FM-BWM0019 Rev. 1012006 Sham COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION BUREAU OF WASTE MANAGEMENT No. 6259 P. 3 NOTICE OF INTENT TO REMEDIATE Act 1995-2 requires 4 general informational Items to be included In the NIR: the general location, listing of contaminants, Intended use of the property, and proposed remediation measures. In addition attach a site map if available. Property Name Paula Risser Residence =- Address/Location 1210 Griffin Street City Harrisburg Zip Code 17112 Municipality (if more than one, list all) tower Paxton Township County Dauphin Latitude 40 '(deg.) 20 '(min) 28.36 "(sec) Longitude 76 °(deg.) 47 `(min) 08.07 "(sec) Horizontal Collection Method: Horizontal Reference Datum; NAD 83 Wish to participate in the DEPIEPA MOA: ? Contact Dave Hess at dahess0state.pa.us for details- Reference Point: Approximate Center of Properly EPA ID Number, if known: NA Provide a general description of the site contamination In plain language (e.g. fuel oil spill, historical chemical industrial area contamination), the names of any known primary contaminants to be addressed, and the intended future use of the property: The property owner, Paula Risser, contracted with PA Basement Waterproofing, Inc. to Install sub-grade/sub-floor water re-directional equipment in the basement of the residence. The work was subtracted to J.S. Williams & Son, who Installed the equipment on or about June 26, 2011. Approximately 2 weeks after the installation, a rain event occurred, and Mrs_ Risser smelled fuel oil in the dwelling. Mrs. Risser has claimed in a civil lawsuit against PA Basement Waterproofing, Inc. and J.S. Williams & Son that a fuel oil line embedded in the basement concrete floor slab was allegedly damaged and that approximately 70 gallons of home heating oil may have leaked Into the subsurface. The property is zoned for residential use and is improved with a single-story structure. It is anticipated that the property will continue to be used for residential purposes. RECEIVef) DEP SOUTHCE TRAL REGION MAR - 8 z0rz ENVIRONMENTAL GLEANUA Provide a general description of proposed remediation measures: An Act 2 release of cleanup liability is being sought for soils under Pennsylvania's Act 2. Proposed remediation measures will include excavation and off-site disposal of a portion of the the 4-inch-thick concrete slab, the underlying crushed stone sub-base, and petroleum-impacted basement soils. Petroleum-impacted concrete, crushed stone sub-base, and native soils will be transported to a licensed facility for disposal. If necessary, the building foundation will be underpinned to allow for the removal of adidtional post- excavation soils. Discrete post-excavation soil samples will be collected from the underlying native soils base in a biased fashion and in accordance with Act 2 regulations. Post-excavation soil samples obtained from the excavation(s) will be submitted to a PADEP-certified laboratory for analysis of the PADEP short list of required No. 2 Fuel Oil parameters. Laboratory results will be compared to Act 2 residential Medium-Specific Concentrations. Jun, 12. 2012 10 :13AM 2530-FM-BWM0019 Rev. 1012008 No, 6,259 P. 4 Will remedlation be to a site-specific standard ? or as a special industrial area ?? If so, the municipality or municipalities must be provided 30-day comment period. Remediator/Property Owner/Consultant. For each of these recipients of the approval of the final report, complete form below. Remediator Contact Person: Adam L. Seiferth, Esquire, c/o J.S(Williams & Song q l 1 Relationship to site (e.g. owner, remediator, participating in cleanup, consultant): Remediator Phone Number: (717) 975-9600 Company Name: Cipriani & Werner, P.C. A i j 9 y Address (street, city, state. Ap): 1011 Mumma Road, Suite 201, Lemoyne, PA 17043 Email Address: aseiferth@c-wlaw.com Property Owner Contact Person: Mrs. Paula Risser 24113 Relationship to site (e.g. owner, remediator, participating in cleanup, consultant): Property Owner Phone Number: (717) 350-6910 Company Name- NA Address (street, city, state, zip): 1210 Griffin Street Harrisburg, PA 17112 Email Address: eap_prrl970@yahoo.com Consultant Contact Person: John C. Lydzinskl, P.G. a Relationship to site (e.g. owner, remedlator, participating in cleanup, consultant): Consultant Phone Number: (717) 230-1838 Company Name: Marshall Miller & Associates, Inc. Address (street, city, state, Ap): 2 Gunpowder Road, Mechanicsburg, PA 17060 Email Address: john.lydzinski@mmal.com Preparer of Notice of Intent to Remedlate: Name: John C. Lydzinski, P.G_ Address: Marshall Miller & Associates, Inc. 2 Gunpowder Road Mechanicsburg, PA 17050 Email Address: john.lydzinski@mmal.com Title: Senior Project Manager Telephone: (717) 230-1838 Email Image File of Site Map showing property lines and general area of site(s) to be remedlated to., (landrecycling@state.pa.us) Jun, 12. 2012 10 :14AM No. 6259 P. 6 Jun, 12. 2012 10:14AM No, 6259 P. 7 Pursuant to the Land Recycling and Environmental Remediation Standards Act, the Act of May 19, 1995, P.L. 4, No. 1995-2, notice is hereby given that J.S. Williams & Son (Williams) has submitted to the Pennsylvania Department of Environmental Protection a Notice of Intent to Remediate (NM) a site located at 1214 Griffin Street, Lower Paxton Township, Dauphin County, Pennsylvania. This NIR states that the site is a residential property where approximately 70-gallons of No. 2 fuel oil may have been released to the subsurface from an oil feed line located in the basement of the residence. Williams has indicated that the proposed remediation measures will include possible excavation and off-site disposal of a portion of the concrete slab, the crushed stone sub-base, and any petroleum-impacted soil followed by the collection of post-excavation soil samples to demonstrate attainment of the Act 2 residential Statewide Health Standards for soil. The proposed future use of the property will remain residential. Exhibit H 0-,WW%--J pennsylvania DEPARTMENT OF ENVIRONMENTAL PROTECTION ENVIRONMENTAL CLEANUP AND BROWNFIELDS PROGRAM March 12, 2012 J. S. Williams & Son c/o Adam L. Seiferth, Esquire Cipriani & Werner, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 Re: Receipt of Notice of Intent to Remediate Residential Statewide Health Standard Paula Risser Residence eFACTS PF # 750798 1210 Griffin Street, Harrisburg, PA Lower Paxton Township, Dauphin County Ladies and Gentlemen: This letter acknowledges receipt of your Notice of Intent to Remediate (NIR) on March 8, 2012, pertaining to the subject site and submitted in accordance with the Land Recycling and Environmental Remediation Standards Act (Act 2). The procedures set forth in Act 2 must be followed in order for this site to qualify for the liability protection provided, by the Act. Please note that proper municipal and: public notifications of this NIR are required. If in the future you choose to utilize either the site-specific or the special industrial area standard, you will need to resubmit the NIR and follow the requirements relating to public involvement plan coordination with the local municipality. Please contact this office if you need advice on these requirements. Technical and program information can be found at www.dep.state.pa.us under the DEP Program "Land Recycling." Please note some of the information that is available from this web page: • Statutes and Regulations. • Guidance and Technical Tools, including a link to the Technical Guidance Manual. • Forms and Lists. o A copy of the "Transmittal Sheet for Plan/Report Submission" which should be included with any plans or reports that you submit. o Optional checklists helpful in assuring reports are complete before submittal. DEP uses the checklists to perform technical completeness reviews when plans and/or reports are submitted. • Conferences and Act 2 Training opportunities. A final report, accompanied by the required fee, should be submitted to the Department of Environmental Protection (Department) upon completion of remediation. Include documentation verifying compliance with-the public notification requirements. The Forms and Lists web page includes an online final report summary form. This form should be completed and-submitted online'upbn final. report approval: The Uniform Environmental Covenants Act (Act 68 of 2007), Title 27, Pa.C.S. Chapter 65 (UECA), provides A standardized'process for creating, documenting and assuring the enforceability of activity and use limitations on contaminated sites involving engineering and institutional'controls used to achieve Southcentral Regional Office 1909 Elmerton Avenue Harrisburg, PA 17110-8200 717.705.4864 1 Fax 717.705.4830 www.depweb.state.pa.us Printed on Recycled Paper 760 S. Williams & Son -2- March 12, 2012 Act 2standards. The Department's approval of a Final Report may need to be supported by an environmental covenant. The Department recommends submitting a draft covenant with the Final Report. Two signed copies of the environmental covenant will need to be submitted either with the Final Report or up to 30 days after Final Report approval, and then recorded on deeds of affected properties. All signed covenants need to be submitted with a $500 review fee. Further information about UECA may be found on the Department's web site at www.dep.state.pa.us under the DEP Program "Land Recycling." The Department and the County Conservation Districts (CCD) are coordinating their respective reviews of Act 2 Remediation and Erosion & Sedimentation (E&S) Plans to ensure compliance with Chapter 102 and the National Pollutant Discharge Elimination System (NPDES) permitting requirements. Certain earthmoving activities associated with Act 2 remediation, demolition, and site redevelopment are regulated to prevent sediment pollution and release of contaminants to area waterways. These activities include: • Where earthmoving activities are less than 5,000 square feet, E&S Best Management Practices will be followed. • Earthmoving impacting 5,000 square feet to one acre must prepare an E&S Plan meeting the requirements of Chapter 102 and the E&S Manual. The plan must be available onsite for inspection and may need approval. • Earthmoving impacting or disturbing more than one acre requires an NPDES Stormwater Permit and/or E&S Plan approvals. Do not initiate any earth disturbance activities until a NPDES permit is issued. NPDES Permit applications for site remediation/redevelopment conducted under Act 2 are to be submitted to the respective CCD in which the site is located Attach a copy of this letter to Plans/Permit applications being submitted to the Watershed Management Program or the CCD. Further guidance can be located on the program's webs ite. As a reminder, any project requiring a Department permit or approval will need to go through a Pennsylvania Natural Diversity Index (PNDI) screening. Any potential conflicts with threatened and endangered species must be resolved prior to submitting an application. Ryan Carr is the project officer assigned to your project and will be working with you towards the remediation of this site. Frequent contact is encouraged between your representatives and our staff. If you have any questions or need further clarifications of our procedures, please call Mr. Carr at 717.705.4841. Since rely, ,6(ltJ 7,'11 Kathleen G. Horvath, P.G. Special Projects Chief Environmental Cleanup and Brownfield Redevelopment Program cc: John C. Lydzinski, P.G., Marshall Miller & Associates, Inc. Dauphin County Conservation District Lower Paxton Township email: David Crownover, DEP Exhibit I Kristen Sinisi From: Angie Horchler Sent: Tuesday, March 27, 2012 11:42 AM To: aseiferth@c-wlaw.com Subject: Risser v. Pa. Basement Waterproofing *This email was dictated and approved by RCA. Mr. Seiferth: I was pleased to learn that steps are being taken to remediate Mrs. Risser's property. I had sent a demand letter on January 25, 2012. This case has significant jury verdict potential from the standpoint of punitive liability facts and damages. Mrs. Risser and her family have been exposed to toxic fumes for almost a year. Her property, even after being remediated will have a substantial deminution in market value. There is the element of substantial punitive damages. Failure to offer a reasonable settlement can expose the carrier(s) to a bad faith action. It is time for the carrier(s) and clients to recognize that I am going to personally try the case. If you are unable to get together $100,000 to be paid within 30 days plus the cost of remediation, at the end of 30 days the offer to settle will be withdrawn. I do not, at this point, have my clients consent to settle but if the offer is made within thirty (30) days I feel confident we can conclude this matter and go on to other cases. Richard C. Angino Richard C. Angino, Esquire Angino & Rovner, P. C. 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 rca ,amino-rovner.com Exhibit J Kristen Sinisi From: Adam Seiferth <aseiferth@c-wlaw.com> Sent: Monday, March 26, 2012 4:59 PM To: Kristen Sinisi Cc: Mary Henry Subject: Risser v. PA Basement Follow Up Flag: Follow up Flag Status: Flagged Kristen, In follow up to your voicemail from Friday, Minuteman is able to begin the work on Monday April 2, 2012. Just let me know if that is acceptable, and I will have them proceed accordingly. You mention about the holes left from the drilling. They were filled with a temporary foam in the event additional sampling needed to be done. The will be filled with permanent cement as part of finishing the basement floor. If you have any more questions (or if I missed one) let me know. Otherwise, I will await the green light from you for next Monday. Thanks. Adam L. Seiferth, Esquire CIPRIANI & WERNER, P.C. 1011 MUMMA ROAD, SUITE 201, LEMOYNE, PA 17043 P: 717-975-9600 C: 717-756-2161 F:717-975-3846 PENNSYLVANIA - NEW JERSEY - WEST VIRGINIA Exhibit K Kristen Sinisi From: Adam Seiferth <aseiferth@c-wlaw.com> Sent: Thursday, April 12, 2012 11:20 AM To: Kristen Sinisi Cc: Mary Henry; Angie Horchler Subject: RE: Risser v. PA Basement I agree that we should wait until the remediation is done before deposing contractors or anyone at this point. I do anticipate the process to conclude before the end of this month (if not the end of next week). I will let you know when I will need access to the pipe and would not anticipate any destructive testing at all. if there was a need, we would not do that until there is agreement. Adam L. Seiferth, Esquire CIPRIANI & WERNER, P.C. 1011 MUMMA ROAD, SUITE 201, LEMOYNE, PA 17043 Pi 717-975-9600 C. 717-756-2161 F: 717-975-3846 PENNSYLVANIA - NEW JERSEY - WEST VIRGINIA From: Kristen Sinisi [mailto:ksinisi@angino-rovner.com] Sent: Thursday, April 12, 2012 11:14 AM To: Adam Seiferth Cc: Angie Horchler; Mary Henry Subject: RE: Risser v. PA Basement Adam The extracted pipe is currently in our possession. It is located in Angino & Rovner's carriage house (on site). Please let me know when you would like to access the pipe and I will ensure that someone is here to assist you. I assume that any expert inspection you plan to have done at this point will be non-destructive; is that correct? Perhaps we should wait to set aside deposition dates until we have a better idea of when remediation efforts will be complete. We obviously plan to depose the contractors after the process is complete, but based on our conversation yesterday, I'm not sure that we know when this will be. What are your thoughts? Thank you. Xrv tew N. S6v 4k ,, Esgu,?rel ksinisi a anaino-rovner.com Angino & Rovner. P.C. 4503 N. Front Street Ilarrisburg, PA 17110 717-238-6791, ext. 3027 The content of this E-mail message is attorney privileged and highly confidential, directed only to the above named person. Therefore. distribution, utilization or copying of this information by anyone other than the designated recipient is strictly prohibited If you have erroneously received this communication, please notify us immediately at (717) 238-6791, and return the original message to us by E-mail. Thank you. From: Richard Angino Sent: Wednesday, April 11, 2012 12:23 PM To: 'Adam Seiferth'; Kristen Sinisi Cc: Angie Horchler; Mary Henry Subject: RE: Risser v. PA Basement Set up with Kristen. Pipe for inspection and depositions with Kristen and my secretary The content of this E-mail message is attorney privileged and highly confidential, directed only to the above named person. Therefore, distribution, utilization or copying of this information by anyone other than the designated recipient is strictly prohibited. !f you have erroneously received this communication, please notify us immediately at (717) 238-6791, and return the original message to us by E- mail. Thank you. From: Adam Seiferth [mailto:aseiferth@c-wiaw.com] Sent: Wednesday, April 11, 2012 11:01 AM To: Richard Angino; Kristen Sinisi Cc: Angie Horchler; Mary Henry Subject: RE: Risser v. PA Basement Fair enough. I understand that you have taken possession of the portion of the pipe that has been extracted from the basement. Please advise when I may be able to access the pipe for purposes of an inspection by an expert. Proceeding with depositions is fine as well. Perhaps we can set aside some dates in May once the remediation work is concluded? Feel free to e-mail proposed dates with the understanding that I would also request the opportunity to depose Ms. Risser and her husband at that time. Adam L. Seiferth, Esquire CIPRIANI & WERNER, P.C. 1011 MUMMA ROAD. SUITE 201, LEMOYNE, PA 17043 P:717-975-9600 0:717-756-2161 1=:717-975-3846 PENNSYLVANIA - NEW JERSEY - WEST VIRGINIA From: Richard Angino [mailto:rca@angino-rovner.com] Sent: Wednesday, April 11, 2012 10:54 AM To: Adam Seiferth; Kristen Sinisi Cc: Angie Horchler Subject: RE: Risser v. PA Basement I intend to proceed to judgment and verdict including compensatory damages for diminution of value of property, pain suffering and inconvenience, and punitive damages. There is also potential medical and lost earnings. 1 do not see your defense but we will submit the issues to a jury. I agree to credit your clients for the expenses they incur by not claiming the amount expended as part of the claim or by utilizing the amount and have the jury determine if you are responsible. We should setup depositions including the individuals doing the remediation. The content of this E-mail message is attorney privileged and highly confidential, directed only to the above named person. Therefore, distribution, utilization or copying of this information by anyone other- than the designated recipient is strictly prohibited. If you have erroneously received this communication, please notify us immediately at (717) 238-6791, and return the original message to us by E-mail. Thank you. From: Adam Seiferth [mailto:aseiferth@c-wlaw.com] Sent: Wednesday, April 11, 2012 9:49 AM To: Kristen Sinisi Cc: Richard Angino; Angie Horchler Subject: RE: Risser v. PA Basement 2 Ms. Sinisi: Thank-you for your email below. The email you cite from me is taken out of context as it refers to the initial soil sampling and my letter of February 14 which is expressly incorporated into the e-mail I sent. That letter states: "Also, in follow-up to my voice message an e-mail previously left with Ms. Sinisi, please be advised that my client's carrier is willing to pay for initial sampling and work-up of an Act 2 remediation plan. This would be undertaken by a Minuteman Spill Response, and we ready, willing and able to proceed with the initial sampling. Please advise if your client is agreeable to proceeding in this fashion." The e-mail you cite also ignores subsequent communications specifically addressing the excavation process that is occurring now, which never suggest that my client would voluntarily pay for it. In any event, the contractor will continue to proceed with the remediation work at this time and in the face of the new evidence that this pipe is severely corroded, evidence which the Aufierro report never considered. We are not waiving any rights, and expressly reserve the right, to pursue reimbursement of the costs incurred for all work subsequent to the soil sampling. While I do not have the authority at this time, it would seem more than reasonable to have your client sign a general release of all claims in exchange for which my client will pay for the remediation of the basement. Ultimately, this would be a windfall for your client. Let me know if your client has any interest in this regard. Adam L. Seiferth, Esquire CIPRIANI & WERNER, P.C. 1011 MUMMA ROAD, SUITE 201, LEMOYNE, PA 17043 P:717-975-9600 0:717-756-2161 F:717-975-3846 PENNSYLVANIA - NEW JERSEY - WEST VIRGINIA From: Kristen Sinisi [mailto:ksinisi@angino-rovner.com] Sent: Tuesday, April 10, 2012 3:18 PM To: Adam Seiferth Cc: Richard Angino; Angie Horchler Subject: RE: Risser v. PA Basement *This email was dictated but not approved by Richard C. Angino. Dear Mr. Seiferth: This letter will confirm our position regarding remediation and our response to your email dated April 6, 2012. On or about June 4, 2011, Ms. Risser entered into a contract with Pennsylvania Basement, pursuant to which it performed waterproofing services on June 27, 2011. During the next heavy rainfall, on July 7, 2011, Ms. Risser began to smell strong odors of fuel oil. Subsequently, she learned that the contents of her fuel-oil tank-approximately 70 gallons- leaked out of the fuel-oil line. Of particular importance is the relatively short time sequence of these events and the fact that Ms. Risser lived at this residence for over six years without incident until the waterproofing work was completed by your client. Not coincidentally, the cause and origin inspection performed by Aufiero Associates determined that the damage to the fuel-oil line was a result of the work performed by your clients, not a result of corrosion of the pipes. Ms. Risser contacted our office in August 2011, and we filed suit in November 2011. After the Court overruled the Preliminary Objections, you voluntarily agreed to pay for the costs of remediation in your email dated February 23, 2012. That email states, "we have engaged an independent contractor to proceed[] with the remediation work and to address DEP's Act 2 compliance, without admission of liability, and will voluntarily pay for the same.... If this is now unacceptable, please advise immediately." In response, we advised that this was acceptable. Now, you maintain that there exist holes in the pipe and that it could have been leaking for years. This does not make any sense. Your above-referenced email advised that your client(s) would pay for the costs of remediation. If their position is now that they will not pay for it, it will simply show bad faith on their part. If there are factual issues, they will all be resolved in future litigation. Very truly yours, Kristen N. Sinisi, on behalf of Richard C. Angino /kns From: Adam Seiferth [mailto:aseiferth@c-wlaw.com] Sent: Friday, April 06, 2012 3:36 PM To: Kristen Sinisi Subject: FW: Risser v. PA Basement Kristen: I was at your client's home this afternoon and had the opportunity to photograph the extracted oil line (first 3 attachments) and the surrounding soil from which it was extracted (4th attachment). It appears abundantly clear that your client's fuel oil leak was caused by a deteriorating and corroded metal fuel oil line which has been decaying in the wet soil underneath the cement basement floor for years, if not decades. Indeed, you can see the remnants of the corroding pipe embedded in the soil. The line is riddled with holes. Minuteman will not be on site on Monday, as it is a holiday for them. I would request that you contact me on Monday to seriously discuss how to proceed. There is no evidence to suggest that the oil line was compromised by my clients actions. In fact, the location of the line is not even in the area where my client would have done any excavation work. During our phone conference, I will be requesting that you discontinue this lawsuit immediately. I will also request that we make arrangements for the transfer of the billing for the work to your firm or your client. Please forward this e-mail to Mr. Angino as well so that he is aware that our prior settlement offer is withdrawn. We will be making no further settlement offers. I am also contemplating an approach to have the expenses paid to date reimbursed to my client, either through litigation or by other means. I am available all day on Monday. Adam L. Seiferth, Esquire CIPRIANI & WERNER, P.C. 1011 MUMMA ROAD, SUITE 201, LEMOYNE, PA 17043 P:717-975-9600 C:717-756-2161 F:717-975-3846 PENNSYLVANIA - NEW JERSEY - WEST VIRGINIA Exhibit L Kristen Sinisi From: Kristen Sinisi Sent: Wednesday, April 18, 2012 2:43 PM To: _RCA Group Subject: Risser update: remediation cancelled again After our last discussion, Adam Risser indicated that remediation efforts would be continued until completion, at which time his client may/may not seek reimbursement. Today, he called and said that within the coming days, all remediation efforts will be ended without completion. Specifically, he said that the contractors have now dug the whole way down to the bedrock of the foundation, chasing the oil. If they proceed, there will need to be excavation performed to the outside of the home, and a structural engineer will need to be involved to deal with the supporting post in the middle of the basement and the footers in the walls. The geologist employed by Minutemen has indicated that the oil found is greatly in excess of 70 gallons and could only be the result of a pipe which was leaking for years, due to the sheer volume of oil found. Adam said that the situation is the "worst case scenario." Even after remediation is complete, several monitoring wells need to be constructed for the DEP and would require its quarterly monitoring for a minimum of two years. Further digging could also implicate surrounding wells, as there are over twenty water wells within a quarter-mile radius of the Risser home. The cost of completion is approaching and may exceed the value of the home. Adam said that regardless of what his clients did/ "did not" volunteer to pay for, they did not sign up for this. He has been instructed by the carrier to stop remediation efforts at this point. We have three options: (1) leave the site as it currently is; (2) have the contractors fill in the huge hole in the Risser basement with gravel; or (3) have it both filled in with gravel and then recemented. I will discuss with Ms. Risser and advise Adam accordingly. Adam has taken no position on whether the basement, either in its current state or with gravel/cement, is "safe" for our client. He understands that urgency is an issue and is amenable to requesting a scheduling conference and proceeding on the fast-track to trial. KNS VERIFICATION I, Paula R. Risser, Plaintiff, have read the foregoing Complaint and do hereby swear or affirm that the facts set forth therein are true and correct to the best of my knowledge, information, and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unswom falsification to authorities. Witn ss Dated: 46k PAULA R. RISSER Dated: )_-IJ 499688 ril?ECl_O? ? i?` y THE PROTHONOTAR 2?t2 ?UL 24 A?11i ? 52 CUMBERLAND COUNT` PENNSYLVANIA ANGINO & ROVNER, P.C. Richard C. Angino, Esquire Attorney ID#: 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 E-mail: rca@angino-rovner.com Attorney for Plaintiff PAULA R. RISSER, V. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLV NO. 12-4043 CIVIL PENNSYLVANIA BASEMENT WATERPROOFING, INC., JAMES WILLIAMS d/b/a J.S. WILLIAMS AND SON, JAMES S. WILLIAMS, DERECK S. WILLIAMS, and FREDERIK MUTUAL INSURANCE COMPANY, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED ACCEPTANCE OF SERVICE I, Adam L. Seiferth, Esquire, counsel for ALL Defendants, hereby accept service of Complaint filed in this action, and hereby verify that I am authorized by my clients to service of same. Adam L. Seiferth, Esqu' e Cipriani & Werner 1011 Mumma Road, S ite 01 Lemoyne, PA 17043-1 Attorney for all Defendants Date: 7 ._ I' i - ;t, 0 i CERTIFICATE OF SERVICE I, Angela D. Horchler, an employee of Angino & Rovner, P.C. hereby certify that a and correct copy of the foregoing Acceptance of Service was served by United States first mail, postage prepaid, upon the following: Adam L. Seiferth, Esquire Cipriani & Werner 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 f 4A, Z? Angela D. Horchler Dated: July 23, 2012 481375 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLV CIVIL DIVISION PAULA R. KISSER, Plaintiff V. CASE NO: 12-4043 PENNSYLVANIA BASEMENT WATERPROOFING, INC., JAMES WILLIAMS d/b/a J.S. WILLIAMS AND SONS, JAMES S. WILLIAMS, DERECK S WILLIAMS, and FREDERICK MUTUAL INSURANCE COMPANY, Defendants JURY TRIAL DEMANDED PRAECIPE FOR APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY C'3 N C ~ ~~ !`J ~~ W x -~ ~' ~ Z x.. --f ~' --c ,~' Please enter my appearance on behalf of the Defendants, PENNSYLV. BASEMENT WATERPROOFING, INC., JAMES WILLIAMS d/b/a J.S. WILLIAMS SONS, JAMES S. WILLIAMS, DERECK S. WILLIAMS, and FREDERICK INSURANCE COMPANY, in the above-captioned matter. BY: Date: ~ _3 ! -01.01 ~ Respectfully submitted, CIPRIANI & WERNER, P.C. ADAM L. SEIFERTH, ES tR~ Attorney ID# 89073 1011 Mumma Road, Suit 201 Lemoyne, PA 17043 (717) 975-9600 aseiferth@c-wlaw . com COUNSEL FOR DEFENDANTS ~-, ~'~ ~'"+ ~~ ~'~ ~~ r7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PRAECIPE F APPEARANCE has been served on all counsel of record, by first class mail, postage pre-p .5~ according to the Pennsylvania Rules of Civil Procedure, on the ~ ~ day ~Crt~ ~ l , 2012. Richard C. Angino, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110-170$ (Counsel for Plaintiffl Respectfully submitted, CIPRIANI & WERNER, P.C. BY: ADAM L. 5EIFERTH, ES Counsel for the Defendants _ _ ___ _ ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIAN CIVIL DIVISION PAULA R. RISSER, Plaintiff v. PENNSYLVANIA BASEMENT WATERPROOFING, INC., JAMES WILLIAMS d/b/a J.S. WILLIAMS AND SONS, JAMES S. WILLIAMS, DERECK S. WILLIAMS, and FREDERICK MUTUAL INSURANCE COMPANY, CASE NO: 12-4043 Defendants JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFF'S COMPLAINT *a -~' ~ cCi t- rn w ~ ~ :: ~n ~~ ~ ~ -., ~ r AND NOW, come Defendants, Pennsylvania Basement Waterproofing, Inc., Williams d/b/a/ J.S. Williams and Sons, James S. Williams Derek S. Williams and Frederi Mutual Insurance Company, ("Defendants"), by and through their counsel, Cipriani & Wern~r, P.C., and preliminarily objects to Plaintiff s Complaint and, in support thereof, states as 1. The present action arises out of a fuel oil leak on the Plaintiff s property located 1210 Griffin Street, Harrisburg, Dauphin County, Pennsylvania. 2. On or about June 18, 2012, the Plaintiff commenced the present action by filin~ a Complaint against the Defendants. A true and correct copy of Plaintiffs complaint is attached Exhibit "A". By agreement of the parties, these Preliminary Objections are timely filed. S Exhibit "B". f - __ 3. In Count III of the Complaint, the Plaintiff alleges a claim for breach of contrast ~ '', based upon selected correspondence between counsel tf~at was exchanged during the course df settlement negotiations in a previously filed, and still pending, lawsuit. ~ 4. The Complaint and the exhibits attached thereto fail to establish the existence of legally enforceable contract as there is no consideration pleaded. 5. Rather, the Plaintiff alleges that the Defendants promised, at their own expense, perform remediation work on the Plaintiff s property, in accordance with DEP's Act 2, wi limitation and without an admission of liability. (Plaintiff's Complaint ¶ 108) 6. The Plaintiff claims that, in consideration for this promise, "Plaintiff agreed credit the Defendants all monies expended on remediation efforts toward a potential jury and that Plaintiff would allow Defendants' "experts", Minuteman, to perform the (Plaintiff s Complaint ¶¶ 113 and 114). 7. In Count IV of her Complaint, the Plaintiff asserts a claim for estoppel. 8. As in the breach of contract claims, the Plaintiff similarly asserts that her on the Defendants' alleged promise to perform remediation work caused her to promise a in favor of Defendants against a potential jury verdict and caused her to refrain from engaging expert of her own to perform the remediation work. (Plaintiffs Complaint ¶¶ 133 and 134). 9. At the same time, however, the Plaintiff also claims that she lacks the resources to continue remediation and to ascertain the precise extent of her property (Plaintiff s Complaint ¶ 75) 1 The previous lawsuit was based upon the same subject matter as the present lawsuit and was filed in the Cumberland County Court of Common Pleas at Docket No. 11-8509. That lawsuit remains active. ' ~' 10. Paragraphs 35 through 75 of the Plaintiff's Complaint contain concerning the procedural history of the previous lawsuit arising. from the same subject matte, the settlement negotiations that occurred during that previous lawsuit, and subsequent measures. 11. The averments in paragraphs 35 through 37 are not relevant to the Plaintiffs claims, fail to conform to law or rule of court, and constitute scandalous or impertinent matter. A. PRELIMINARY OBJECTION TO COUNT III OF THE PLAINTIFF S COMPLAINT IN THE NATURE OF A DEMURRER PURSUANT TO PA.R.C. . 1028(b)(4) 12. The Defendants hereby incorporate paragraphs 1 through 11 as though the were fully set forth herein at length. 13. In Count III of the her Complaint, the Plaintiff asserts a claim for breach contract alleging that a contract was formed when the Defendants promised to remediation work on her property for a fuel oil leak and that the Defendants breached purported contract by failing to complete the remediation work. 14. A preliminary objection in the nature of demurrer admits all well pleaded facts well as inferences which are fairly deducible therefrom. However, it does not admit concl of law. Wicks v Milzoco Builders. Inc.. 503 Pa. 614, 623, 470 A.2d 86, 91 (1983). 15. In the context of a demurrer, it is not necessary to accept as true averments in complaint which are in conflict with exhibits attached to the complaints. Ruaert 8c Sons. Inc., 305 Pa.Super. 36, 39, 451 A.2d 229, 231 (1982). 16. It is black letter law that in order to form an enforceable contract, there must be offer, acceptance, consideration, or mutual meeting of the minds. Schreiber v. Olan Mills, Pa.Super. 537, 627A.2d 806, 808 (1993). . ~ 17. Consideration is defined as a benefit to the party promising, or a loss or detrim~nt to the party to whom the promise is made. It is not enough that the promisee has suffered a detriment at the request of the promisor. The detriment incurred must be the "quid pro quo," the "price" of the promise, and the inducement for which it was made. Consideration actually be bargained for as the exchange for the promise. If the promisor merely intends make a gift to the promisee upon the performance of a condition, the promise is gratuitous, the satisfaction of the condition is not consideration for a contract. Comnany. 339 Pa. 410, 413-414,14 A.2d 127,128 (1940). 18. It is also well settled that, absent a manifestation of an intent to be negotiations concerning the terms of a possible future contract do not result in an agreement. Jenkins v County ofSchuvlkill. 441 Pa.Super. 642, 648, 658A.2d 380, 383 (1 19. A mutual manifestation of intent to be bound is an essential element of a Philmar Mid-Atlantic. Inc. v York Street Associates. 389 Pa.Super. 297, 301, 566 A.2d 1253, 1255 (1989). 20. The Plaintiff has failed to allege that she has provided any consideration for alleged promise of the Defendants to perform remediation work. 21. Rather, the Plaintiff alleges that the Defendants promised to perform work on her property, at Defendants' own cost, with no cost to the Plaintiff. 22. The Plaintiff claims that, in exchange for this alleged promise, she agreed credit the Defendants all monies expended on remediation work against a potential jury 23. The Plaintiff "agreeing" to allow a credit against a potential jury verdict is consideration because it is illusory and because the Plaintiff is not "giving" the anything in exchange for their alleged promise. __ _ _ , ~- 24. The Plaintiff obtaining a favorable verdict in this matter is an uncertainty, rendering the receipt of the credit illusory. I, 25. Furthermore, the Plaintiff does not suffer a loss or detriment simply by "agreein~" to a credit against any potential jury verdict. The Defendants would be entitled to a credit operation of law for the remediation work they performed at their own cost. A credit against verdict is not the Plaintiff's to give and, therefore, it does not amount to consideration. 26. The Plaintiff has also failed to plead sufficient facts to show a manifestation of intent to be bound or a mutual meeting of the minds. 27. The Exhibits attached to the Complaint differ significantly from the contained in the body of the Plaintiff's Complaint. 28. The Plaintiff alleged that the Defendants promised to perform all remediati work in accordance with DEP's Act 2. 29. Exhibit "C" of the Plaintiff's Complaint clearly shows that the through counsel, offered to pay for initial sampling and to obtain an estimate for Act remediation compliance based upon the sampling results. 30. It is clear, from Exhibits "B", "D", "E", "I", "K" and "L", that the through her attorneys, believed that the Defendants offered to pay for all Act 2 remediation, did not consider this sufficient to settle the present lawsuit, as the Plaintiff continued to an additional $100,000.00 over and above the cost of remediation. 31. It is also clear from Exhibit "K" that the Defendants did not intend to be bound the offer to perform initial sampling and get an estimate for Act 2 remediation compliance upon the sampling results. Rather, this was a settlement offer that was withdrawn when 2 it became clear that the fuel oil leak was not caused by the Defendants conduct. 32. Absent a clear mutual meeting of the minds or a mutual manifestation of intent I,to be bound, no contract could be formed. ~ 33. Because the Complaint fails to plead sufficient facts which establish the of a legally enforceable contract, Plaintiff cannot state claim for its alleged breach in Count III. WHEREFORE, Defendants, Pennsylvania Basement Waterproofing, Inc., J Williams d/b/a/ J.S. Williams and Sons, James S. Williams Derek S. Williams and Mutual Insurance Company, respectfully request that this Honorable Court sustain the and dismiss Count III of the Plaintiff's Complaint with prejudice. B. PRELIMINARY OBJECTION TO COUNT IV OF THE PLAINTIFF S COMPLAINT IN THE NATURE OF A DEMURRER PURSUANT TO PA.R.C. . 1028(b)(4) 34. Defendants hereby incorporate paragraphs 1 through 33 as though the same fully set forth herein at length. 35. In Count IV of her Complaint, the Plaintiff asserts a claim for promissory alleging that the Defendants should be estopped from failing to complete the remediation work her property after promising to do so. 36. In order to maintain an action in promissory estoppel, the aggrieved party m show that 1) the promisor made a promise that he should have reasonably expected to action or forebearance on the part of the promisee; 2) the promisee actually took action refrained from taking action in reliance on the promise; and 3) injustice can be avoided only enforcing the promise. Crouse v. Cvclons Industries, 560 Pa. 394, 403, 745 A.2d 606, 6~0 (2000). 37. These factors are strictly enforced to guard against the "loose application" promissory estoppel. Fried v. Fisher. 328 Pa. 497, 503,196A. 39, 43 (1938). . ~ 38. The promisee must be induced to act to her detriment. See Fried, supra. at 41. 39. The change in the promisee's position must be adverse and substantial. There no injustice in being deprived of a gratuitous benefit. 339 Pa. 410, 416,14 A.Zd 127,130 (1940). 40. The basis of the Plaintiff's claim for promissory estoppel is the same as that upon in her claim for breach of contract. 41. The Plaintiff has failed to plead facts demonstrating that she relied upon Defendants' alleged promise to her own detriment. Rather, as in her breach of contract the Plaintiff alleges that, in reliance on the Defendants' alleged promise, she would allow a for all monies expended during remediation against a potential jury verdict. 42. The promise of a credit, however, fails to demonstrate detrimental reliance on part of the Plaintiff for the same reason that it does establish consideration for any contract. This promise is illusory because the outcome of the present lawsuit is an uncertainty. Even if it was, a credit would not work to the Plaintiffs detriment, as she loses nothing. credit operates as a matter of law precisely because the Defendants made an advanced on potential damages without a legal obligation to do so. 43. The Plaintiff also alleges that, in reliance on the Defendants' alleged promise, refrained from engaging her own expert to perform remediation work. However, this disingenuous because the Plaintiff alleged multiple times in her Complaint that she could afford the remediation work in the first place. Therefore, this cannot constitute a forbearance reliance upon the Defendants' alleged promise. _. . - 44. The Plaintiff also alleges that she allowed contractors and DEP onto her property in reliance on the Defendants' alleged promise. However, this does constitute detrimental reliance; it is merely an acquiescence to the Defendants' gratuitous offer. 45. The facts pleaded in the Complaint, and the exhibits attached thereto, show the Plaintiff did not engage in any action or forbearance to her detriment. She did not give any of her legal rights in the present lawsuit. To the contrary, the correspondence from Plaintiff s attorney attached as exhibits to the Complaint demonstrate that the Plaintiff i to take this matter to verdict unless an additional $100,000.00 above and beyond the cost remediation work was paid to settle the lawsuit. 46. The Defendants' offer constituted a gratuitous benefit to the Plaintiff which not alter her position adversely or substantially. She cannot now claim an injustice because she has been deprived of a gift. 47. Furthermore, in Count IV of the Complaint, the Plaintiff requests that either specifically perform their alleged promise or, alternatively, pay the cost of remediati Neither are not recoverable in a promissory estoppel action. 48. The Supreme Court has noted that damages in a promissory estoppel action be limited to recovering the amount of money expended in reliance on the promise. Inc. v. North Pocono School District. S62 Pa. 380, 391, 755 A.2d 1287,1293 (2000). 49. The Plaintiff has failed to allege the amount of money that she expended reliance on the Defendants' alleged promise.: Indeed, when the Plaintiff's Complaint is read its entirety, it is clear that the Plaintiff has expended nothing in reliance on the Defendant' alleged promise. ,_ 50. Because the Plaintiff has failed to allege facts sufficient to plead or request proper damages for a promissory estoppel claim, Count IV of the Complaint must dismissed. WHEREFORE, Defendants, Pennsylvania Basement Waterproofing, Inc., Williams d/b/a/ J.S. Williams and Sons, James S. Williams Derek S. Williams and Mutual Insurance Company, respectfully request that this Honorable Court sustain demurrer and dismiss Count IV of the Plaintiff's Complaint with prejudice. C. PRELIMINARY OBJECTION TO PARAGRAPHS 35 THROUGH 75 OF PLAINTIFF'S COMPLAINT IN THE NATURE OF A MOTION TO ST PURSUANT TO PA.R.C.P. 1028(b)(2) 51. Defendants hereby incorporate paragraphs 1 through 50 as though the same fully set forth herein at length. 52. The averments in paragraphs 35 through 75 of the Plaintiff's Complaint set the procedural history of the previous lawsuit filed by the Plaintiff, as well as the contents settlement negotiations and subsequent remedial measures. 53. Pa.R.C.P. 1028(a)(2) provides that preliminary objections may be filed for of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter 54. Facts that are immaterial and inappropriate to establish a cause of constitute impertinent material. Jubelirer v. Rendell. 904 A.2d 1030,1033 (Pa. Cmwlth. 2006). 55. Any paragraphs that purport to be factual, but only constitute evidence that be relevant at trial, are not pertinent for the purposes of pleading a cause of action. PennDOT, 935A.2d 895, 909 (Pa.Cmwlth. 2007). 56. Pa.R.E. 407 provides that evidence of subsequent remedial measures is admissible to prove a party who took such measures was liable or engaging in culpable ' ~ S7. Pa.R.E. 408 provides that conduct or statements made in compromise ne is not admissible on behalf of any party when offered to prove liability for, invalidity of, amount of a claim, or to impeach through prior a inconsistent statement or contradiction. 58. The procedural history of the previously file lawsuit is immaterial inappropriate to establish the Plaintiff's causes of action in this matter. 59. The remainder of the averments in paragraphs 35 through 75, addressi subsequent remedial measures and settlement negotiations, constitute inadmissible which is inappropriate in any pleading. 60. The averments in paragraphs 35 through 75, if not stricken, would be to the Defendants and would confuse the jury. Indeed, the procedural history of any would be confusing to a jury, let alone the procedural history of a lawsuit other than the before them. 61. The jury would also be confused by averments that are not relevant to Plaintiff s cause of action or are otherwise inadmissible at trial, all of which would be prejudi to the Defendants. 62. Finally, if the demurrer to Count III and IV are granted, Defendant, Mutual Insurance Company, should be stricken from the Caption and the body of the as no causes of action would remain against it. WHEREFORE, Defendants, Pennsylvania Basement Waterproofing, Inc., J Williams d/b/a/ J.S. Williams and Sons, James S. Williams Derek S. Williams and Mutual Insurance Company, respectfully request that this Honorable Court strike paragraphs ~5 through 75 from the Plaintiff s Complaint and order Plaintiff to file an Amended omitting said paragraphs all references to Frederick Mutual Insurance Company from the and body of the Amended Complaint. Respectfully submitted, CIPRIANI & WERNER, P.C. Date: ~ -~ ~ - a. By: ADAM L. SEIFERT , E ' Attorney LD. #89073 1011 Mumma Road, S to 20 Lemoyne, PA 17043 (717)975-9600 Attorney for Defendants .. ____ ._......._.._._..__ . __ __ ~_ !'t~.Ea'QFF~~~ ~~~ ~'i~E PRQTNQNaTAnY ~QIY.~I 28 PM i~ Ob ANGINO do ROVNER, P.C. Richard C. Angino, Esquire Attorney IDM: 07140 4503 North Front Street Hmrisburg, PA 17110-1708 (717)238-6791 FAX (717) 238-5610 E-mail: rca@angino-rovner.com PAULA R. KISSER, v. C ~EIN~YLY Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLV Plaintiff No. 1 a-y o~3 ~vt~ PENNSYLVANIA BASEMENT WATERPROOFING, INC., JAMES WILLIAMS d/b/a J.S. WILLIAMS AND SON, JAMES S. WILLIAMS, DERECK S. WILLIAMS, and FREDERIK MUTUAL INSURANCE COMPANY, Defendants CIVIL ACTION -LAW JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the folio ng pages, you must take action within twenty (20) days after this complaint and notice are serv , by entering a written appearance personally or by attorney and filing in writing with the your defenses or objections to the claims set forth against you. You are warned that if you fai to do so the case may proceed without you and a judgment may be entered against you by the co without further notice for any money claimed in the complaint or for any other claim or re 'ef 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 HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. ~.Io3.7 A~ a~ CI }~i~ $~ la ~~ 3~~ IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LE( SERVICE TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 1013 800-990-9108 NOTICIA LISTED HA S1D0 DEMANDADO/A EN LA CORTE. Si usted desea defender con la demands en las sigurentes PAGINAS, LISTED TIENEN QUE TOMAR ACCI N DENTRO VEINTE (20) dies despises que eats Demands y Aviso es servido, con entrando r escrito w~a apsrencia personalmente o por un aborgado y archivando por escrito con la Corte defenses o objections a las demandas puestas en esta contra usted. Usted es advertido que si fella de hacerio el caso puede proceckr sin usted y un jazgamiento puede ser entrado contra usted la Corte sin mss aviso por cualquier dinero reclamando en la Demands o por cualquier otro racism o alivio solicitsdo por Demandante. Usted puede perder dinero o propiedad o ostros darer importante pare usted. LISTED DEBE LLEVAR ESTE PAPEL A SU ABOGANDO ENSEGUIDA. SI NO 'TIENE UN ABORGADO, VAYA O LLAME POR TELEFONO LA OFICINA AQUI ABAJO. ESTA OFICINA PUEDE PROVEERE CON 1NFORMACION DE CONSEGUIR UN ABOGADO. SI LISTED NO PUEDE PAGARLE A UN ABOGADO, ESTA OFICINA PROVEERE INFORMACION ACERCA AGENCIES QUE PUEDAN OFRECER SEl LEGAL A PERSONAS ELIGIBLE AQ UN HONORARIO REDUCIDO O GRATIS. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 1013 800-990-9108 - _ _ ANGINO & ROYNF.it, P.C. Richard C. Angino, Esquire Attorney iDk: 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717)238.6791 FAX (717) 238-5610 E-mail: rce(a~migino-rovner.com PAULA R. KISSER 1210 Griffin Street Harrisburg, PA 17112, Plaintiff v. PENNSYLVANIA BASEMENT WATERPROOFING, INC. 1525 Cedar Cliff Drive, Suite 101 Camp Hill, PA 17011, JAMES WILLIAMS d/b/a J.S. WILLIAMS AND SON 67 Michael Lane Watsontown, PA 17777, JAMES S. WILLIAMS 67 Michael Lane Watsontawn, PA 17777, DERECK S. WILLIAMS 49 Michael Lane Watsontown, PA. 17777, and Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENN5YLV. NO. CIVIL ACTION -LAW JURY TRIAL DEMANDED FREDERICK MUTUAL INSURANCE COMPANY 57 Thomas Johnson Drive Frederick. MD 21702 Defendants COMPLAINT AND NOW, comes Plaintiff, Paula R. Risser, by and through her attorney, Rovner, P.C., and files her Complaint, stating as follows: 1. Plaintiff, Paula R. Risser (hereinafter, "Plaintiff'), is an adult individual resides at 1210 Griffin Street, Harrisburg, Pennsylvania 17112. 2. Defendant, Pennsylvania Basement Waterproofing, Inc. (hereinafter, "~'A Basement") is a Pennsylvania corporation with a principal place of business at 1525 Cedar Drive, Suite 101, Camp Hill, Pennsylvania 17011, which routinely solicits and engages business in Cumberland County, Pennsylvania. in 3. Defendant, James Williams d/b/a J.S. Williams and Son (hereinafter, "JSW '), ~s a Pennsylvania partnership with a principal place of business at 67 Michael Lane, W Northumberland County, Pennsylvania 17777, which routinely solicits and engages in in Cumberland County, Pennsylvania. 4. Defendant, James S. Williams, is an adult individual who resides at 67 Lane, Watsontown, Northumberland County, Pennsylvania 17777. 5. At all times relevant hereto, Defendant, James S. Williams, is and has been, Senior Partner and an owner of JSW. 6. Defendant, Dereck S. Williams, is an adult individual who resides at 49 Lane, Watsontown, Northumberland County, Pennsylvania 17777. 499688 2 7. At all times relevant hereto, Defendant, Dereck S. Williams, is and has been Junior Partner and an owner of JSW. 8. Defendant, Frederick Mutual Insurance Company (hereinafter, Mutual") is a Maryland insurance company which maintains a principal plane of business at 57 Thomas Johnson Drive, Frederick, Mairyland, 21702 and regularly does business in County, Pennsylvania. 9. On or about June 4, 2011, Plaintiff entered into a written Agreement (hereina~er, "the Agreement") with PA Basement (attached hereto as "Ezhibit A"), pursuant to which ~'A basement agreed to perform waterproofing services in Plaintiffs basement in exchange Plaintiff s payment of $5,740.00 in valuable consideration. 10. Paragraph 22 of the Agreement provides this Honorable Court with jurisdiction over the instant action. See Ex. A ¶ 22 ("This agreement shall be governed by construed in accordance with the laws of the Commonwealth of Pennsylvania. Owner to the exclusive personal jurisdiction .and venue of the Courts of Cumberland County, Pennsylvania for all litigation which may be brought with respect to or arising out of the term of and the transactions and relationships contemplated by this agreement."). 11. PA Basement, in turn, engaged JSW as a subcontractor to perform the waterproofing, without Plaintiff s knowledge. 12. At all times relevant hereto, JSW is and has been insured by Frederick Mutua#, a casualty insurance company. 13. On or about June 26, 2011, the employees and/or agents of PA Basement JSW inspected Plaintii~s basement and then performed waterproofing services for pursuant to the Agreement. as%sa 3 r 14. While performing said waterproofing services, the employees and/or agents of ~'A Basement and/or JSW severed a copper fuel-oil line that was embedded in the original slab in Plaintiff s basement. 15. Plaintiff believes and therefore avers that the employees and/or agents of ~'A Basement and/or JSW were aware of the adverse consequences of severing afuel-oil line. 16. Despite actual knowledge that the oil line was severed, the employees agents of PA Basement and/or JSW failed to inform Plaintiff of the incident. Instead, poured concrete over the severed oil line and the oil that leaked therefrom, in an attempt to conceal the severed pipe. 17. As a result, approximately seventy (70) gallons of oil leaked from Plaintiff s tank through the severed oil pipe beneath the surface of Plaintiff s basement floor. 18. Upon initial inspection, the severance was not identifiable by Plaintiff as it hidden beneath the newly poured concrete. 19. Plaintiff first became aware of the severed oil Line on or about July 7, 2011, after a heavy rain, she was able to smell the oil-fume emissions. 20. On or about July 7, 2011, after detecting the odor of the emissions, Plaintiff PA Basement to notify it of the same. 21. Within the next one to two days, PA Basement and/or JSW sent their agent employee to Plaintiff s house to examine the problem. 22. The agent and/or employee used a jackhammer to remove the concrete above area of Plaintiffs basement floor where PA Basement and/or JSW had been working installing the waterproofing system. apse 4 23. The removal of said concrete exposed a layer of gravel, the surface of which f employee and/or agent of PA Basement and/or JSW superficially examined and determined there was no oil leakage. 24. Plaintiffs husband, David Stoller, Jr. {hereinafter, "Mr. Stoller"), was during this examination. 25. Using a screwdriver, Mr. Stoller moved some of the gravel aside, and in so exposed substantial oil leakage to the employee and/or agent of PA Basement and/or JSW. 26. The employee and/or agent of PA Basement and/or JSW excused himself Plaintiff s premises and went to his work truck, where Plaintiff believes and therefore avers he called PA Basement and/or JSW to discuss the issue. 27. Subsequently, Plaintiff was instructed to call the owner of PA Basement. calling PA Basement, Plaintiff was advised to engage her fuel-oil company to replace severed oil line, at PA Basement's expense. 28. On or about July 15, 2011, Plaintiffs oil company, ABC Fuel Oil Company, (hereinafter, "ABC Fuel Oil"), visited Plaintiffs residence and replaced the severed ail line ~t a cost of $214.90. 29. Soon thereafter, PA Basement issued a check made payable to ABC Fuel Oil in the amount of $214.90 to pay for the expenses associated with replacing the severed oil line. 30. Although the severed oil line was replaced, the oil that leaked from Plaintiffs oil tank remained for a substantial time, and in part continues to remain, trapped beneath Plainti s basement floor. 31. On or about July 30, 2011, Erie Insurance Company (hereinafter "Erie"), which Plaintiff maintained a homeowner's insurance policy, engaged the services of amass 5 Associates to complete a cause and origin inspection regarding the oil leak in Plainti~ s basement. 32. Following its inspection, Aufiero Associates detemuned that the work by PA Basement and/or JSW caused the damage to Plaintiffs oil line. 33. Also in July 2011, pursuant to the instruction of ABC Oil, Plaintiff notified Pennsylvania Department of Environmental Protection (DEP) of the severed oil line resultant oil emission. 34. After Plaintiff communicated to PA Basement her intent to put DEP on notice, ~'A Basement became uncooperative and unwilling to work with her to further resolve this issue. 35. Subsequently, Plaintiff engaged the services of Angino & Rovner, P.C. 36. On or about November 14, 2011, Angino 8c Rovner filed a Complaint against A Basement on Plaintiffs behalf in the Common Pleas Court of Cumberland County, alle g negligence and seeking punitive damages. 37. On or about November 30, 2012, PA Basement filed Preliminary Objecti seeking dismissal of Plaintiffs punitive damages claim and seeking a more specific with regard to the dollar amount of property damages Plaintiff claimed. 38. On or about December 23, 2011, PA Basement filed a Joinder Complaint JSW. 39. On or about January 6, 2012, the Honorable Albert H. Masland ovemiled ~'A Basement's Preliminary Objections. 40. Plaintiff now files the instant Complaint to incorporate additional facts and ~ that have arisen since the time she filed her initial Complaint. 41. The statute of limitations pertaining to Plaintiff s claims has not yet expired. a~ae 6 42. In February 2012, JSW's counsel, Adam Seiferth, Esquire (hereinafter, ". Seiferth"), of Cipriani & Werner, P.C., took over the defense of PA Basement and Mutual, JSW's insurer. See Email from Attomey Seiferth to Angela Horchler et al., "RE: v. Pa Basement Waterproofing" (Feb. 23, 2011) (attached hereto as "Ez6ibit B") 43. Plaintiff consulted geologist Brian Sauls from Skelly & Loy, an engineering environmental consulting firm, who advised her that in order to determine the extent of property damages, he would need to perform certain procedures, including but not limited to sampling, and that said procedures would cost a minimum of approximately $5,000.00. 44. As of January 2012, when PA Basement's Preliminary Objections were Plaintiff had not ascertained the extent of her property damages, of which Defendants they needed to be made aware, in order to form pmper defenses. 45. Attorney Seiferth advised Plaintii~s counsel, Kristen Sinisi, Esquire "Attomey Sinisi"), via voice message and a-mail that [his] carrier [Frederick Mutual Insurance Company] has agreed to pay for the initial sampling to be performed by a company [he has] selected.... Once the sampling is completed, we will get an estimate for Act 2 remediation compliance and go from there. Email from Attorney Seiferth to Attomey Sinisi, "Risser v. PA Basement," (Feb. 13, 2812) (attached hereto as "Ezltibit C"). 46. PA Basement, JSW, and Frederick Mutual (collectively, "Defendants") the services of Minuteman Environmental Services, Inc. (hereinafter, "Minuteman"), performed an initial inspection of Plaintiff s premises on or about February 16, 2012. 47. On or about February 23, 2012, Plaintiff s counsel, Richard C. Angino, (hereinafter, "Attorney Angino") sent an email to Attorney Seiferth stating, a~ae 7 Mrs. Risser, her husband, and her child have been subjected to the fumes from your clients' reckless conduct and will continue to be exposed to fumes until you are authorized to pay for the remedial work required. The Risers do not have the financial wherewithal to engage someone to perform the remedial work. It is in yow client's best interest to authorize payment for the remedial work. You will be given credit toward the eventual jury verdict. Email from Angie Horchler, on behalf of Attorney Angino, to Attorney Seiferth, "RE: Pa Basement Waterproofing" (Feb. 23, 2012) (attached hereto as "Ezhibit D"). 48. In response thereto, Attorney Seiferth wrote: As Mr. Angino is apparently not aware, we have engaged an independent contractor to proceeding sic] with the ~ work and to address DEP's Act 2 compliance, without admission of liability, and w~ va~~arih- ws- fuc,~e same. Soil sampling will be completed this Tuesday, February 23, 2012. If this is now unacceptable, please advise immediately. Ex. B (emphasis added). 49. The same day, Attorney Sinisi advised Attorney Seiferth that the was acceptable. See Email from Attorney Sinisi to Attorney Seiferth, "RE: Risser v. Basement Waterproofing" (Feb. 23, 2012) (attached hereto as "Ez6tbit E"). 50. Plaintiff reasonably and justifiably relied on Defendants' promise, which made by their agent, Attorney Seiferth, with actual, implied, and/or inherent authority. 51. Subsequently, Minuteman performed said sampling. 52. On or about February 24, 2012, John Lydzinski, P.G., acting as a Minuteman and defense counsel's law firm, Cipriani & Werner, P.C., informed Lower Township of the intent of JSW and Cipriani & Werner, P.C. to remediate Plaintiff's "[i]n accordance with the provisions of Act 2." See Letter from John C. Lydzinski, P.G., Project Manager, Marshall Miller & Assocs., Inc. to Mr. George Wolf, Twp. Manager, Paxton Twp., "Re: No. 2 Fuel Oil Release, Risser Property, 1210 Griffin Street, v. to av~sa 8 Lower Paxton Township, Dauphin County, Pennsylvania" {Feb. 24, 2012) (attached hereto "Ez6ibit F"}. 53. On March 5, 2012, John Lydzinski, P.G., acting as a consultant to Minuteman ~ as defense counsel's law firm, Cipriani & Werner, P.C., created an Act 2 remediation plan, which it filed with the DEP on behalf of JSW and Cipriani & Werner. See Notice of Intent to filed by John C. Lydzinksi, P.G. on behalf of Adam L. Seiferth, Esquire, c/o J.S. Williams 8c (Mar. 8, 2012) (attached hereto as "Exhibit G") ("An Act 2 release of cleanup liability is be ng sought for soils under Pennsylvania's Act 2.... If necessary, the building foundation will be underpinned to allow for the removal of additional post-excavation soils.... Williams as indicated that the proposed remediation measures will include ...any petroleum-impacted followed by the collection of post-excavation soil samples to Act 2 reaidewtiol Stat~caide Heatlth Standar~da for soil." (emphasis added)). 54 On March 12, 2012, DEP seat to Defense counsel a letter acknowledging Notice of Intent to Remediate Plaintiffs property. See Letter from DEP to J.S. Williams & c/o Adam Seiferth, Esquire, "Receipt of Intent to Remediate" (Mar. 12, 2012) (attached hereto} as "Ezhibit H") ("This letter acknowledges receipt of your Notice of Intent to Remediate (NIR)~ on March 8, 2012, pertaining to the subject site and submitted in accordance with the Recycling and Environmental Remediation Standards Act (Act 2)."). 55. On March 27, 2012, Attorney Angino sent Attorney Seiferth an acknowledging that Defendants agreed to proceed with remediation. Email from Angino to Adam Seiferth, "Risser v. Pa. Basement Waterproofing" (Mar. 27, 2012) hereto as "Ezhibit I") ("I was pleased to learn that steps are being taken to c~emediate Kisser's property."). 49%88 (~ 56. On March 26, 2012, Attorney Seiferth indicated to Attorney Sinisi tl Minuteman would begin the remediation work on April 2, 2012. See Email from Attorn Seiferth to Attorney Sinisi, "Risser v. PA Basement" (Mar. 26, 2012) (attached hereto "Ezhibit .T"). 57. All conversations Plaintiff s counsel had with Attorney Seiferth between Fe 2012 and early April 2012 further confirmed that Minuteman would perform the remediation work voluntarily, at Defendants' expense. 58. During the remediation process, Minuteman excavated Plaintiff's base digging below her basement floor, at depths up to ten feet, to remove the contaminated soil. 59. During the remediation process, oil and contaminated soil which were previ below Plaintiff s basement floor became exposed, creating profuse odors that. emitted Plaintiff s house. 60. The emission of said odors caused Plaintiff and her family members as headaches, and dizziness, and upon Plaintiff s request, Minutemen installed electric air filters to help limit the potency of the emissions. 6l . Said air filters were installed at three locations throughout Plaintiff's in the basement, one in the living room, and one in the kitchen. 62. To function properly, the air filters were required to run twenty-four hours day, seven days per week. 63. The air filters' operation, during the course of the excavation, increased Plainti s monthly electric bill by approximately fifty dollars (550.00) per month. 64. On April 6, 2012, in the midst of Minuteman's remediation efforts, Defen is breached their contract with Plaintiff when they advised Plaintiff, by and through a~ag 10 Seiferth, that they intended to transfer billing for all remediation efforts to Plaintiff Plaintiffs counsel, Angino & Rovner, P.C. See Email from Attorney Seiferth to Kristen Sin~isi "FW: Risser v. PA Basement" (Apr. 6, 2012) (attached hereto as "Ezhibit K"). 65. At no time prior to April 2012, did Defendants express that they would reimbursement for or transfer of the remediation expenses. To the contrary, at all times hereto, Attorney Seiferth's communications to Plaintiffs counsel were consistent with the and enforceable contract between Plaintiff and Defendants, and more specifically, Defendants' willingness to voluntarily pay for all Act 2 remediation efforts. 66. In response to Attorney Seiferth's email dated April 6, 2012, Plaintiff s informed him that Defendants agreed to voluntarily pay for remediation. See Ex. K. 67. Attorney Seiferth denied that his client agreed to pay for remediation, explained, Id. In any event, the contractor will continue to proceed with the remediation work at this time and in the face of the new evidence that this pipe is severely con~oded, evidence which the Aufienro is report never considered. We are not waiving any rights, and expressly reserve the right, to pursue reimbursement of the costs incurred for all work subsequent to the soil sampling. 68. On or about April 18, 2012, via telephone conversation, Defense informed Atton~ey Sinisi that Minutemen had "chased" the leaked oil, in an attempt to the same, down to the bedrock of Plaintiff's home. 69. He further explained that as he understood it, pursuant to Act 2, the fact that oil was "chased" to Plaintiff s bedrock triggered the need for particular measures, including: (a) the installation of monitoring wells, to monitor the contents of Flaintiffs water, to be set up for a minimum of two years and monitored quarterly; and (b) possible monitoring of the more than twenty underground, residential water x99688 1 1 within aquarter-mile radius of Plaintiff's home. 70. Additionally, Attorney Seiferth explained that continued remediation compliance with Act 2 would likely require: (a) excavation outside of the home; and (b) the retention of a structural engineer to address structural support issues that would arise as a result of continued remediation inside Plaintiff s home. in 71. Upon information and belief, all of the work detailed in Paragraphs 69 and 7~1 is required to achieve compliance with Act 2. 72. As such, all of the work detailed in Paragraphs 69 and 70 is part of remediation for which Defendants specifically agreed to pay. ?3. During his conversation with Attorney Sinisi, Defense counsel told her that he had been instructed by Defendants to terminate remediation because it involved costs well a ve and beyond what Defendants initially expected. 74. On April 18, 2012, Defendants terminated all remediation efforts before Act 2 compliance. 75. Presently, Plaintiff lacks the financial resources to continue remediation and to ascertain the precise extent of her property damages. 76. To date, an unknown amount of fuel oil remains in Plaintiff ssub-surface and/or bedrock and may have also leaked into her ground water supply. 77. Upon information and belief, the trapped oil continues to leak into the bedrocl~ of Plaintiff s foundation and surrounding soils, potentially contaminating her ground water as well as that of neighboring water wells. 78. To date, the extent of Plaintiff s property damages remain unliquidated. 499688 1 2 79. As a result of the oil leakage caused by PA Basement and/or JSW, oil fi emitted throughout Plaintiff's house from about July 7, 2011, through mid-May 2012 and continue to do so through the present. 80. The fumes interfered substantially with Plaintiffs living and quality of especially during periods of n~in. 81. As a result of the oil leakage caused by PA Basement and/or JSW, and as a of Defendants' breach of contract, Plaintiff has been, and continues to be, deprived of the n and customary enjoyment of her residential property. COUNT I -NEGLIGENCE PAULA R RI33ER v. PENNSYLVANIA BASEMENT WATE~'ROOFING. INC. 82. Faragraphs 1 through 81 of the Complaint are incorporated herein by refers 83. The foregoing incident and all of the injuries and damages set forth sustained by Plaintiff are the direct and proximate result of the negligent and careless ma which PA Basement, by and through its employees and/or agents: (a) failed to exercise due care in performing waterproofing services for Plaintiff thereby severed Plaintiff sfuel-oil line; (b) failed to identify said severance; (c) failed to repair said severance; (d) poured concrete over the severed oil line and the leaked oil; and (e) failed to shut off Plaintiff s oil tank valve, which released oil from Plaintiffs fi oil tank and into the severed line. in a~8s 13 84. The foregoing incident and all of the injuries and damages set forth sustained by Plaintiff are the direct and proximate result of the grossly negligent, wanton, and reckless manner in which PA Basement, by and through its employees agents: {a) knowingly and purposefully failed to inform Plaintiff of the severed oil line; (b) knowingly and purposefully failed to repair the oil line which PA Basement's employees and/or agents knew it severed; (c) knowingly and purposefully concealed the severed oil line and its hazardous effects by concreting in the oil line; and (d) recklessly failed to shut off Plaintiffs oil tank valve, which released oil from Plaintiff sfuel-oil tank and into the severed Line, while knowing of said and of the adverse effects of leaked fuel oil. 85. As a direct and proximate result of PA Basement's actions, approximately (70) gallons of oil leaked from Plaintiff's fuel tank through the severed oil pipe beneath surface of Plaintiff's basement floor, and an unspecified amount of it remains in Plaintil~s surface soils. 86. As a direct and proximate result of PA Basement's actions, the value of real property has decreased, and a claim is made therefor. 87. As a direct and proximate result of PA Basement's actions, Plaintiff has damage to her property, for which additional remediation costs will be incurred, and a claim is m~e therefor. 4 14 88. As a direct and proximate result of PA Basement's actions, Plaintiff has i additional electrical expenses in that she has had to run three (3) air filters twenty-four (24) per day, and a claim is made therefor. 89. As a direct and proximate result of PA Basement's actions, Plaintiff may future expenses in rendering her property DEP-compliant, and a claim is made therefor. 90. As a direct and proximate result of PA Basement's actions, Plaintiff has forced to incur additional out-of-pocket expenses, and a claim is made therefor. 91. As a direct and proximate result of PA Basement's actions, Plaintiff has deprived of the normal and customary enjoyment of her residential property, and a claim is therefor. 92. As a direct and proximate result of PA Basement's actions, Plaintiff undergone, and continues to undergo, great physical and mental pain and suffering, great inconvenience, reduction in her quality of life, and a loss of life's pleasures and and a claim is made therefor. 93. The actions of PA Basement, as set forth in Paragraph 84, constitute conduct beyond negligence and exceeding the boundary of outrageous, wanton, and reckless warranting the award of punitive damages, and a claim is made therefor. WHEREFORE, Plaintiff Paula R. Risser demands judgment against Pennsylvania Basement Waterproofing, Inc. in an amount in excess of Fifty Thousand (50,000.00), exclusive of interest, costs, and punitive damages, and in excess of any j amount requiring compulsory arbitration. far 4`~ 15 COUNT II -NEGLIGENCE PAULA R. II~SSER v. NAMES VVILLIAMS d/b/a J.S. WILi.IA14IS AND SON 94. Paragraphs 1 through 93 of the Complaint are incorporated herein by 95. The foregoing incident and all of the injuries and damages set forth sustained by Plaintiff are the direct and proximate result of the negligent and careless manne~ in which JSW, by and through its employees and/or agents: (a) failed to exercise due care in performing waterproofing services for Plaintiff thereby severed Plaintiff's fuel-oil line; (b) failed to identify said severance; (c) failed to repair said severance; {d) poured concrete over the severed oil line and the leaked oil; and (e) failed to shut off Plaintiff s oil tank valve, which released oil from Plaintiff s oil tank and into the severed line. 96. The foregoing incident and all of the injuries and damages set forth sustained by Plaintiff are the direct and proximate result of the grossly negligent, wanton, and reckless manner in which JSW, by and through its employees and/or agents: (a) knowingly and purposefully failed to inform Plaintiff of the severed oil line; (b) knowingly and purposefully failed to repair the oil line which JSW's and/or agents knew it severed; (c) knowingly and purposefully concealed the severed oil line and its hazardous effects by concreting in the oil line; and (d) recklessly failed to shut off Plaintiff s oil tank valve, which released oii from Plaintiff sfuel-oil tank and into the severed line, while knowing of said a~sa 16 and of the adverse effects of leaked fuel oil. 97. As a direct and proximate result of JS W's actions, approximately seventy gallons of oil leaked from Plaintiff's fuel tank through the severed oil pipe beneath the surfac~ of Plaintiffs basement floor, and an unspecified amount of it remains in Plaintiff s soils. 98. As a direct and proximate result of JS W's actions, the value of Plaintiff's property has decreased, and a claim is made therefor. 99. As a direct and proximate result of JSW's actions, Plaintiff has incurred to her property, for which additional remediation costs will be incurred, and a claim is therefor. 100. As a direct and proximate result of JSW's actions, Plaintiff has i additional electrical expenses in that she has had to run three (3) air filters twenty-four (24) per day, and a claim is made therefor. 101. As a direct and proximate result of JSW's actions, Plaintiff may incur expenses in rendering her property DEP-compliant, and a claim is made therefor. 102. As a direct and proximate result of JSW's actions, Plaintiff has been forced to incur additional out-of-pocket expenses, and a claim is made therefor. 103. As a direct and proximate result of JSW's actions, Plaintiff has been deprived of the normal and customary enjoyment of her residential property, and a claim is made therefor. 104. As a direct and proximate result of JSW's actions, Plaintiff has undergone, continues to undergo, great physical and mental pain and suffering, humiliation, inconvenience, reduction in her quality of life, and a Loss of life's pleasures and enjoyment, a~d a claim is made therefor. amass 17 105. The actions of JSW, as set forth in Paragraph 96, constitute conduct far negligence and exceeding the boundary of outrageous, wanton, and reckless conduct, the award of punitive damages, and a claim is made therefor. WHEREFORE, Plaintiff Paula R. Risser demands judgment against Defendant Williams d/b/a J.S. Williams and Son, in an amount in excess of Fifty Thousand (550,000.00), exclusive of interest, costs, aril punitive damages, and in excess of any amount requiring compulsory arbitration. COUNT III -BREACH OF CONTRACT 106. Paragraphs 1 through 105 of the Complaint are incorporated herein by 107. Frederick Mutual agreed to pay for and undertake the initial sampling Plaintiff s property. See Ex. C. 108. On or about February 23, 2012, Defendants and Plaintiff entered into a legally enforceable contract whereby Defendants, by and through their agent, Attorney voluntarily agreed to pay for all remediation work, in accordance with the DEP's Act 2, wi limitation, and without an admission of liability. See Ex. B. of 109. At all times relevant hereto, Attorney Seiferth is, and has been, an agents of Defendants. 110. At all times relevant hereto, Attorney Seiferth was acting on behalf of with actual, implied, and/or inherent authority. a~wss 18 PAULA R. KISSER v. _ ____ __ 111. At all times relevant hereto, Attorney Seiferth has had the authority to, and in did, bind Defendants to contracts he entered into on their behalf. 112. On or about February 23, 2012, Plaintiff s counsel assented. wee Ex. E. 113. In exchange for Defendants' promise to pay for the remedi~tion work, agreed to credit Defendants all monies expended on remediadon efforts toward a potential verdict. See Ex. B. 114. Plaintiff further agreed to permit Defendants' experts, Minuteman, to perform remediation work rather than engaging her own expert to perform it. 115. Defendants' and Plaintii~s exchange on February 23, 2012, created a binding, and legally enforceable contract (hereinafter, "the Contract"). 116. Pursuant to the Contract, remediation efforts commenced in early April 2012. 117. On or about April 11, 2012, Defendants materially breached the expressing their intent to: (a} transfer the billing of all remediation expenses to Plaintiffand/or Angino & Rovner; and (b) pursue reimbursement of the costs Defendants incurred for all work subseai to the initial soil sampling. See Ex. K. 118. In another email sent later the same day, Attorney Seiferth advised nonetheless, Minuteman would still proceed with the remediation. Ex. K. 119. On or about April 18, 2012, Defendants materially breached the Contract terminating all remediation efforts. See Email from Attorney Sinisi to RCA Group, "Ris the by by a~a8 19 update: remediation cancelled again" (Apr. 18, 2012) (attached hereto as "Ez6ibit ") (summarizing Attorney Sinisi's telephonic communication with Attorney Seiferth). 120. As a direct and proximate result of Defendants' breach, Plaintiff will be forc to incur the expenses of completing remediation in compliance with DEP's Act 2 provisio , a process Plaintiff would not have commenced but for Defendants' contractual promise to pay the same. 12l . Because Plaintiffs property damages remain unliquidated at this time, because Plaintiff lacks the financial resources to complete the remediation, Plaintiff' has adequate remedy at law and therefore seeks Defendants' specific performance of its contract obligations. 122. Alternatively, should this Honorable Court deem specific performance inappropriate remedy, Plaintiff will be forced to incur the expenses of completing compliance with DEP's Act 2 provisions, and a claim is made therefor. for no an io~h in WHEREFORE, Plaintiff Paula R Risser demands judgment against Defenc Pennsylvania Basement Waterproofing, Inc., James Williams d/b/a J.S. Williams and Son, Frederick Mutual Insurance Group in an amount in excess of Fifty Thousand Dollars ($50,000. exclusive of interest, costs, and punitive damages, and in excess of any jurisdictional requiring compulsory arbitration. a99688 20 COUNT IV -PROMISSORY ESTOPPEL PAULA R. KISSER v. FREDERICK MUTUAL IIIRANCE COMPANY 123. Paragraphs 1 through 122 of the Complaint are incorporated herein by referen 124. At all times relevant hereto, Attorney Seiferth is, and has been, an agen of Defendants. 125. At all times relevant hereto, Attorney Seiferth was acting on behalf of with actual, implied, and/or inherent authority. 126. At all times relevant hereto, Attorney Seiferth has had the authority to, and in did, bind Defendants to contracts he entered into on their behalf. 127. Defendants, by and thmugh their agent Attorney Seiferth, promised Plaintii~ to perform and to "voluntarily pay for" the remediation work required by Act 2. Ex. B. 128. Accordingly, upon information and belief, Defendants authorized Minuteman to file a Notice of Intent to Remediate Plaintiff s property with the DEP. See Ex. H. 129. Defendants had actual knowledge that Plaintiff did not undertake earlier because she lacked the financial wherewithal to do so. 130. Defendants should have reasonably expected that their promise would i action and/or forebearance on Plaintiff s part. 13l . Defendants' pmmise did, in fact, induce action and/or forebearance on Plainti s P~• 499688 2 1 132. Specifically, Plaintiff s counsel responded to Attorney Seiferth's email, that Plaintiff was ~epared to move forward with the remediation efforts articulated by counsel. See Ex. E. 133. In relying on Defendants' pmmise, Plaintiff promised to credit Defendants, fob all monies expended during remediation, toward a potential jury verdict. 134. Plaintiff fiuther refrained from engaging her own expert to perform remediation work and permitted Defendants' expert to do so, without inquiring into the associated therewith. I35. In so relying, Plaintiff permitted Defendants' experts, Minuteman, to numerous holes in Plaintiffs basement, which in some areas, went the entire way down to bedrock of Plaintiff s foundation, exceeding ten feet in depth. 136. In so relying, Plaintiff permitted representatives from DEP, at request, to visit and/or inspect Plaintiff s premise to determine Act 2 compliance. 137. Upon information and belief, having learned that Minuteman chased the leakage to Plaintiffs bedrock, DEP instructed that additional remediation efforts may necessary, including: (a) the installation of monitoring wells, to monitor the contents of ground water, which would need to be set up for a minimum of two years and monitored quarterly; and (b) possible monitoring of the more than twenty residential water wells within a quarter-mile radius of Plaintiffs home. 138. Subsequently, Defendants terminated all remediation efforts without Act Z compliance. n's oil be 499668 22 139. Defendants know that Plaintiff does not have the financial wherewithal to d remediation. 140. After agreeing to pay for remediation and undertaking the first phase of remediation, Defendants terminated all remediation efforts after it believed it acquired the necessary evidence to defend this case. 141. Having obtained the benefit of their pmmise, Defendants now seek to renege promise they made to Plaintiff 142. Specifically, Defendants attempt to avoid their promise to complete remedi in accordance with Act 2 and attempt to shift aU costs associated therewith to Plaintiff a Angino & Rovner, P.C. 143. Defendants have already put the DEP on notice and have already excav a substantial portion of Plaintiffs basement, which, in its current state, is not useable for its ordinary and customary purposes by Plaintiff. 144. Injustice can be avoided only by enforcing Defendants' promise. 145. Because Plaintiff s property damages remain unliquidated at this time, Pl ' iff has no adequate remedy at law and therefore seeks Defendants' specific performance o its contractual obligations. 146. Alternatively, should this Honorable Court deem specific performance an inappropriate remedy, Plaintiff will be forced to incur the expenses of completing remediatio in compliance with DEP's Act 2 provisions, and a claim is made therefor. WHEREFORE, Plaintiff Paula R. Risser demands judgment against Def is Pennsylvania Basement Waterproofing, Inc., James Williams d/b/a J.S. Williams and Son, and amass 23 Frederick Mutual Insurance Group in an amount in excess of Fifty Thousand Dollars exclusive of interest, costs, and punitive damages, and in excess of any jurisdictional requiring compulsory arbitration. COUNT V -VICARIOUS LIABILITY PAULA R. KISSER v. JAMES S. WILLIAMS anti DERECK S. WILL.IAMS 147. Paragraphs 1 through 146 of the Complaint are incorporated herein by reference. 148. At all times relevant hereto, James S. Williams has been the Senior Partner ands an owner of JSW. 149. At all times relevant hereto, Dereck S. Williams has been the Junior Partner an owner of JSW. 150. Upon information and belief, JSW is a general partnership which is jointly on by James S. Williams and Dereck S. Williams for the purpose of generating and sharing ~ its profits. 151. As such, James S. Williams and Dereck S. Williams are jointly liable for all and obligations of the partnership pursuant to 15 Pa.C.S. §§ 8325, 8327. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter j in favor of Plaintiff and against Defendants James S. Williams and Dereck S. Williams, them vicariously liable for the debts of James Williams d/b/a J.S. Williams and Son, in~ an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest, costs, and damages, and in excess of any jurisdictional amount requiring compulsory arbitration. a~as 24 Respectfully submitted, ANGINO & ROVNER, P.C. Date: June ~, 2012 C. A~igino, Esquire . No. X7140 4503 IV.1~ront Street Harrisburg, PA 17110 (7i 7) 238-6791 1~AX: (717) 238-5610 '~~ rca(cangino-rovner.com Attorney for Plaintiff a~staa 25 Exhibit A v~-'1-7-11 k'~[~,~, ~~ll '~c~'tic c~.~,,~,~ f~53~o ~i•e_ _, J ~ ~ ;~/ PALICENSE-PA001027 - ;,,.;( ~#REEMENT 'tLisAgreemententeredmtothisday ~~' of ^- • ''~ 20•'~byandbetwanPABA3LMENTWATERPROOFIIYGINC., a Penoaylvaoia Carporatiog,of 1525 Cedar Cli$Drive, Camp Hill, PA 17011, Phone 800-511-6574 ,r r.J .~ n '/LS Narmi(s) ~•~:/.-,l <~ • (Fleremafter toas"Owner'7Phone ~/~ `T Address Z /') /~"i t iiv -L City - '" " ;?~ . r ~~ ~P ,~/! %- Job Site _ City Stsa ~+P PA Basement Waterproa5og Imo. and Owner m mutual considn'ation and intending to be legally boned hereby agree a, follows: 1. PA Bssemtau Watarpraofiog Inc. agrees to furnish materials, labor, and equipment to install sub graddwb-floor wear redirxtional equipment lathe "ARE4T0 BE3I'RVICF.D" ("Wade"). 2 PA Basement Wisetproof og Inc. agrees to start Work within approa>mtely days sad campkte Wodc withirt fly days. The,parties agree that the completion date may be ermmded due to circumstances beyond the coo>rol of PA Basement Waterproofing Inc. such as weather err unforeseen conditions at the eta to be serviced. 3. Owner agrees to pay PA Basemen Waterproo5ng Inc. as full campeosation for the Work as follows: Y _.' TOTALCASH PRICE: S ~~ ~ ~`.; • ~ AMOUNTTO BE PAID BEFORE PABASENIFI+TI' WATERPROOFIIYGINC. B1i:G1aIS WORK: S ~/ '~ . 4 BALANCI3DUE UPON COMPLSTiON: A~ payment not made within ten (10) days of its due date shall incur a late fee of 1,5%per month until psid. The I.SYo shall be reduced a the ~ Ifinaaced ~ attached Federal Truth in I,mdiag Fams and L.oanAgieemeat. IfFina~ing tenant be obtained, dews payments made by Owner will be retarned and this Agrednmt wt~l be tuanceled. This Agtroaaent is not a 5nmcing commitment. Finaruing is provided by a aeparue lending institution. The lender reserves the right to accept or reject your credit 4. AREATOBESERVICEDAND ESCRST[ONOFWORKTOBEPERFORMED. Total linear feet to be serviced '~ ~ ft. AREA TO BE SERVICED DE.SC'RIP'RON OF WORK TO BE PERFCIRMED Rear Cove ~Interiar: PABaaemeat WsmmprvoSog Inc. wil! instal -L )High Impact polymeric drain care with flow channels ~fi g,ight .Sub-floe pressuro relief system (3° or 4" ad.s. $exrbk Cove Cove ore perforated pipinp~ .~ (vy Dory Submersrbk Pump Sysuyn (# ~)h Front Cove ^ Base Cove Plate System (Solid lines indicaic cove area The cove area is where the wall end floor meet) Q Other. See attachedADDI'sNDLfM THE AREA TO BE SERVICED will be marked with "X". No vvsterproofiag Services will be performed to any area not containing an "X" //~ r PABA~PITWATERPROOFIIVGINC.RECOMl1[1dND6AIGLFOtJRWALISBEWATERPROOFED.. r •+ f ; 5. Caneellatloa. Owner may cancel this Cansaction at say time prior to midnight of the third business day after the date of this ttaasaction. Sea the Notice of Caneellade~n form fm m e~laoation of this right 6. Pennies. Owners shnU be reap~sible for obtaining and paying for all permits and approvals necessary for PA Basement vVatmproofmg Inc. to perform its work. 7. Approval. This Agreement is not binding on PA Basement Waterproofing Inc. until it is approved and signed by an otfleer ofPA Basement WataProoSmg Inc. a Access. owner greats tmeesQ'icted.access to wont areas fa PA Baswneat Wi>xs:lxoo5ng 1ac.'s labor, equipment and vehicles. Owner agrees to allow areas for storage of materials. Owtrer agrees to beep drivavrays clan send available fa movement sad paridag of vehicles sad trucks during normal working borne. PA Serenest yYaOapuofmg Imo. shall sot be bald respansibk for damage to driveways, walks, lawns, shrubs, or other vegetatim, lry movement of trtrcJea, laborers, egaipmtmt, matmials, debris, era. or otherwise. 9. ]faterior Aceas. If it is necessary to m:pect amd/a work firm the interior, as determined by PA Basement Waterproofing Imo. in its sole d>sastion, Owner agrees to provide complete access to and make the walls and floors ban in the Area to Be Serviced and agrees to make designated areas accessible to PA Basement Witerproofmg Inc. Owner is responsible fnr nplscememt of acme only after notification from PA Basement Waoarproofmg Inc. 10. Pre-gdati~ C~dilioa:. PA Basaneot Waoerproo5ng Imc. is not rasponsibk for the raw of pro-wdsting strtrcttaal conditi~a or problems. PA Basamemt R+sterproo5ng Inc. will notify Owner if PA Basemen Wateaproofimg Ina. discover: pre-cristiog structrn~al problems daring its Work. Pre-existirrg straedual caaditioma aadproblema inchrda deficiencies which adaoedminitial coaatstrdim oftlre Sotmdstiom improper, uaaamd ~ no footings, hiddaa deficiencies tmcovered as. a result of a second slab floe overlay, sub-gnaiity ezistimE slab, slab cap over dirt flooring, crwnblsd boor slab, sub-floor soil alipptge, ~ eucesssive erosi~ and/or tmdamini:tg. The charges to Owner suet! be limited to cost p1us20% to cover PA Batameat Waterproofing Int.'s overhead, if not initially contracted for. sad if ever necesasry. For PA Baaipmant Watecproofmg, lac. to install a Boor system, other then around the perimeter, due W springs, hydteeftatic presatae, or odrarwise. NOTICE TO OWNER: DO NOT SIGN THLS AGREEMENT IN BLANK, OWNER IS ENTITLED TO A COPY OF TSLS A(PAT'FHE'I'IIKE I1CL'S ~. By signing this Ageememt Owner aclmowkdges receipt of a copy of this Agreement By signimg this Agreement, Owner and all persons signing four Owner sad with Owner ogee to all terms, conditions and provisions ceatained is this Agreement The terms sad wmditioos include the trams en this page send on the reverse side. Owner and all parsons signing the Agreement for sad with owner shall be severally and joimly obligated and liable herein. This rs mot blending on P~'Baeemeat VVioerproofing Inc: until it is approved by an ot8cer of PA Basement WataprooSoB Inc. IN ~VIITiESSA~~d~REOF, ip<gctding be legally bound, the patties have set their and~als the day and year above written. Inspector -' Owner Approved by PA BASE:vtENT WATERPROOFING INC. By: Officer owner I agree to bound unconditionally to the terms and conditions in the Agreement. Terms and Conditials 11. PA BaihaeM Waterproofing ksG Cartoeladort. PA eaument WsterproofirK Inc. reserves the rights to cancel tfiis Agreement ff during its Wbrk k discovers condkbro which would prevent the installation of a sub- floor system. Owner agrees to hold PA Basement Waterproofing Inc. harrnkss for damages whkh may resuk from cancellation of this Agreement. 12. Special Went ts. A. Extsria Wank Umitaeion. If exterior work is preformed, PA Baument Waterprooflrtg Inc.'s responsibiBry shall be limited to rough grading. PA Basement waterprooflrig Inc. does not guararttec the survhrai of grass, plantings, trees or shrubbery. B. Pressure Regef System. tf a pressure relief }loot system is installed iniWRy o- at a later date, the materiah and metlads(s) used shag be at the sole dfsvetion of PA Basement Waterproofing Inc. If floor of cove system Ls installed k such Installation will be above and/or bebw floor as Pa Basement Waterproofing inc. deems necessary. C. Suireersble Swnp Require. If a submersible pump is installed, Owner agrees to wpply adeglsate electrical power and Owner agrees to Install outlets and electrical extension cords for the wbmersibk pumps. ff Owner does not provide these items the pump may nor function properly. PA Baseretent Waterproofing Inc, will not be responsible and PA Basement Waterproofing wiN not provide any wamnry whatsoever. Sump pump discharge hoses will terminate at the splash bksck or at arty other arcs PA Basement Waterproofing Inc. deems best. D. Faudstiors and Seepage. If Owner has a stone ,terra cotta, vertigl layer, poured concrete , or brick toundatbn, PA Basemen! Waterproofing Inc. has advised owner m have wags rough cantered as part of this Agreement. E. Untkatiorts d Scope d Work. The agreed upon price does not irxdude rerouting or rcplaoement of vents, apes, ducts, wiring wnduks, tanks, utilities, wall or floor coverings, shrubbery, abutments, ar obstructbns. K necessary for PA Basement Waterproofing Inc. to drill through exrcrbr tonaete, asphalt. wood, slate, brick, or substance other than earth, PA Basement Waterproofing Inc. aswrrws no UabiNry for damage to same, but wUl repair k in a workmanlike manrkr where PA Basement Waterproofing Inc. shall rat be respansibka for damage to paneBng, tile, and grplL ar other obstruction, or property on wall, floor, or otherwise. 13. WARRANTY ANO tANRATbNS ~ UABRJTY. A Warranty Certiflgte will be issued upon full payment after a short processing time. The Wamnry is Iffatime an PA eaument Waterproofing Inc. system and seven years on sump pump. There will be no wamnty unless PA Baumertt Wsterproofktg Inc. is paid in cull. ff any akeva<ion is made to PA Basement Waterproofing inc. system without written permissan from PA Basement Waterproofing Inc. w11{ have no further oWigatbn to Owner. PA Basement Waterproofing inc. warrants cement work as to proper mix and workmanship but does not gtarantee cement against crackkt{, peeling or setding, PA BASEMENT WATERPROOFING INC. DOES NOT WARRANT OR ASSUME RESPONSIBILTY WHATSOEVER FOR ANY DAMAGE TO THE IfYfERIOR OF AM' BUflDIN6 OR ITS CONTENTS CAUSED BY OR CLAIMED TO 8E CAUSED 8Y WATER SEEPAGE OR~INFILTRATION. PA Basement Waterproofing Inc. does not warrant against conditions over which k has no control, including but not limked to structural damage, condkbns of wbsoll masonry, damage ousted bM other, fine, fksods, baddng up of sewer systems, or acts of God. EXCEPT AS SPEGFICALLY PROVIDED IN THIS AGREEMENT ANO THE WARRANTY, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMBED T0, ANY IMPLIED WARRANTIES MERCHANTABILTIY OR FfTNE55 FOR A PARTIGJLAR PURPOSE OR IMPLIED WARRANTIES OF HABITABILITY ANO WARRANTY COVERAGE FOR [ATENT DEFECTS MADE BV PA BASEMENT WATERPROORNG INC. PA BASEMENT WATERPROOFlNG, INC. SHALL NOT ,UNDER ANY GRCUMSTANCES, BE LIABLE TO OWNER FOR CONSECtUENTIAL OF INGOENTAL DAMAGES EVEN IF THE WATERPROOFING SYSTEM FAILS AND OWNER SUSTAINS DAMAGES TO PROPERTY ANO FURNRURE. PA BASEMENT WATERPROOFING INC.'S LIABILITY AND RESPONSIBILITY UNDER THIS AGREEMENT IS UMfTED TO THE SERVICE OF WATER ENTERING THE FLOOR COVE AREA OF THE FOUNDATION. PA BASEMENT WATERPROOFlNG INC. lS NOT RESPONSIBLE FOR CONDENSATION, SWEATING, POROUS OR FILLED BLOCK, DAMPNESS OR WATER ENTERING THE PREMISES THROUGH ABOVE SOIL LFYELS, SURFACE RUNOFF WATER, SUB -SOIL CEILINGS, OR OTHER ADDITIONAL AREA NOT SPECIFIED IN THIS AGREEMENT. PA BASEMENT WATERPROOFING INC. IS NOT RESPONSIBLE FOR CONSEQUENTIAL WATER OR PROPERTY DAMAGE. PA BASEMENT WATERPROOFING INC IS ONLY RESPONSIBLE FOR THE WATER ENTERING THE FLOOR COVE AREA OF THE FOUNDATION. PA Basement Waterproofing Inc. sha8 not 6e liable w responsible for any damage beyond the amount actually paid by Owner to PA Basement waterproofing inc. PA Basement waterproofing Inc. waterproofing Uabiliry is limited to the arraunt paid by Owner directly to PA Basement Waterproofing inc. for the Work. 14. RentodeUrtg ReWictlorts. Owner agrees to maintain system for one year (1) from date of installation before Owner remodels or improves the basement or other area serviced; otherwise the Wamnty hereunder shall be null and void. 15. Conditions in work Ans. PA Baument Waterproofing Inc. will exercise caution during fits Work and wUl ksve'Broom Clean". Owner understands and accepts that dust and general disruption will remain after Work is wmplete. 16. Service Cage. Service ells for continuing seepage problems wkhin the scope of the Wamnty will be made wkh no additional charge to Owner. However, if Pa Baument waterproofing inc. finds the problem In an area where no Work wu done and therefore k B not covered by Wamnty, or ff the problem b not an actual seepage problem (wch as leaking pipes, condensatbn, high humidity, sewer back-ups, and unplugged sump pump, etc.), then PA 8aument W aterprooflng Inc. reserves the right to charge Owner a $75.00 tee for service. 17. Owner Defauk. If Owner is in breach of any of the terms or conditions of this contract, including, without limkation, nonpayment or attempted cancellatbn (after the 3 day cancelstion period}, Owner shall be M defsuk, and Pa Basement WaterproofNg Inc. shall be entitled to payment of the full agreement price as well as arty remedks provided by law and/or equity. However, PA Basement Wa~ryrooflrK Inc. agrees that ff the scheduled work has begun at the time of the attempted cancelgtion, PA Basement Waterproofing Inc. will aaept thirty percent (301L) of the /uN rash price. 18. ksktt and Several Uabigties. This is a joint and several agreement and k means that all the Owners u a group and each of the owners u an ind'widual are responsl6le to PA Basement Waterproofing Inc. for aN of the provisions of this agreement, If there is a defwlt PA Basement Waterproofing Inc. on sue elf of the Owners or, PA Basement waterproofing can bring a lawsuk against any one Owner separately (severally). 19. lrwapdky o/ Provkiorss. fn the event any one or more of the provisbns of this Agreement is declared to be irnralid by a Court, all other terms and conditions of this Agreement shall be binding and.enforceable. 20. ErKi-e Agreement. This Agreement and the attached Addenda, ff any, constitutes the entire Agreement between PA Basement Waterproofing Inc. Owner acknowkd~s that no promiu representation of warranty, except those expressly set forth in wring, have bean made by Pa 8aurrwnt Watxrproofktg Inc. or its agenu. No modificatbn or addition to this Agreement wRl be valid or binding upon PA Basement waterproofing Inc. unless agreed to in writing. 21. Assignment. PA Basement Waterproofing inc. has the right to assign and /or transfer [his Agreement and other instruments executed by Owner. Owner may not assign of transfer this Agreement without written consent of PA Basement waterproofing Inc. 22. Jurisdictkxn arM Wenue. this agreement shall be governed by and construed in accordance with the laws of the COmmortwroalth of Pennsylvania. Owner consents to the exclusive personal jurisdiction and venue of the Courts of Cumberland Courtly, PennsyMnW for all litlgatbn which may be brought with respect to or arising out of the terms of and the transactions and rebtbnshlps contemplated by this agreement. 1~N ~~~~~101 ~'~« a PA Ixc~a P Date luued: ~ ~ ~~ Under CorttraeC ~~~ Owner. Addreu• ~~ ~t! t.l' tom! Pa iissament WaterprooliK provWes ehk Servks W+erantll I'Mi+-•ntY) to hbor and matariak raleted m tM sna conorausd n~ water saepins h from the kiwar wall cove (where wab meats tbor). Ur floor one as dnulbad below, and where a preaun rettaf system has been irunikd ('work'). Customs remantre: thstthr;5ervke warranty is not vabd urdN ab mordes due m PA flaswnent WaderproolbK an paid M fub. sdtvxsw~-rmt lDasMbtd Ares (one or more must 6e duxked) Aq fax µ) walk (total perfinear}Warranty induda tswal Perimeter of floor end ford ndd~e floor ann. 0 1-23 Webs- Warranty brdudas immediate floor area within 0 3 hat of eqN as sped6ad on contract. 0 9rick/Tara Cotta, Stone. ywtkal hyer. or Paced eonve0e Fasdatlon, PA Baserretrr[ WalaproolMfl shay be regrarrsibk m service the saepap ~/h tlK kaw wab/flocr system and rrot for saepaae th-aadh wall(sl or waN tMardr/jcires unkas Ikted under other. o Otfier Lai{tli otwarranty: o One(1)year 0 Entire Period in whkh owns holds title m property. Umited Warranty: Desvibed Epuipment Subaavsbyle Pump(s) cement o Two (2) Ynrs X SavM (7) Ynrs Notke: Subrnlrsblk pump tr pavered by eb:c'bimd paver acrd must ahveys be pbgaedln m a paaiersowce. ~r Upon endoneararrt by holder and the trarnrsritW of thb docttrtrertt to h UtataarR, thk watYanty B Traedrable and aadp+abie one ttme to paatles as yet ueewtxad for the dundon of the eryinal stand warrarAy iA aCOOPdanq vaRh the tatYtts and oortdkiotr speciRed herein, protildM that the new ouatats meet aN terns and oaaditiotts of the a~e~ent acootttpetyit~ thB wamaity. To 6e eMeetive, tltk service warranty trartslar must ba rtotarizad cad sent to h Basartserk'a ablbe wtthb+ 30 days d tsawfer of title. INI~f~~~Mw~1lARA~~IpI~w1~A~10t NAME FEE ADDRESS HOLDER'S NAME {PRINT) CIT1f, STATE, ZIP HOLDER'S SIGNATURE (CELL PHONES DATE NOTARY MOARMMI~~O~N14 (PA BASEMEN'T') I. The conditions and the caostrnetion snateaials of the fotnsdatioa walls and floor may. at times, require additional repair andlor reinforcemeffi from the inside. Tn this event, it vun11 be Owner's obligation m provide aa~ss m the walls and floes by removing soured maoeriats, paneling err other obatrttctiaa>s. This will as<ly be retprited when Pa Basarnmt deems it noodaary is ae+dar m service the problem. Owner recogmxes that this Warranty is for labor and materials of system only sad does not itnchrde wall or floor covraiogs and personal items in basement. II. Pa. Ba>QmeaL is not rrspoasible for chafing cooadaasabion, swettiag porous ~ filled block or defective mortar arotmd block, and in that evert Pa Basement rosy recemmmd the application of oobaior caatuogs m the walls or fiomdaa~ien, which would be at additional cost m Ouv»tr. Should Owner decide m pursue this additieonal work, the service far eslmior mocavation and the appl~ion of imgsa~meable sealants or the applisxtion of iuberior aealanb, watiags or rough ewetings shall be at Owner's additional cost III. Pa Basement is ent reapeusfbte for dampness err water entering the Premises through above sort leveler, sua;face runoff warts, flooding water enorring vrindows, doors, floor, atairwaya, chisnaeys, conduit pipes, bomb shelter ~Bs4. or subsoil ceilings, or bloclmge caused by tree roots. rv. if seepage occuas in the areas covered by this warranty, owner ahsu 5rst determine whether the sump pump is functioning. If the wasp pump is functioning Owns should call Pa. Basement immediately. If Pa Basement deeast it nauxssary, Pa Basement ws71 dispatch a service mpreaenutive m the Prsmisea m determine if additieaal service is required. If additional service is required, Pa Basement will perform such services as soda as practicable tnrder the cacuansmncxv. V. Pa Basement warrants cement work as m proper mix sad worl®aaship, but does na guaaa6ee cea~t sgainat clacking, dtrating, peeling chatmg, settling, or any other conditions. VI. The Walk, inspection, ausd service will be performed dsning normal uvodrmg bores. Ifthe problem does not arise from en aria coved by the Work, then Pa Basement asay cbarge the Owner a Mmuaum fee of 580.00 plus additional fees. V1L Pa Basement shat] leave the area where the Work err service is pmftumed in a "]anon clean° ceoditien. Nevertheless, some dust and general disruption may remain a&r the Work err service is oompletod. Ou>raer should cover all items m the areas adjacent m where the Work or service is to be performed uvtth a dust proof tarp or other similar covering and tuube similar seeps m laeep dust sad tuwidne flan catering other parts of the Premises inchtdmg tensing off blowers m header sad air caod~oning sysoema cad covering doorways end oprcaings with dust proof tarps. Under no circumstances is Pa Basement responsible for the removal or cleaning of dust and residue or the damage resulting from any dust or residue. VIII.Owner shall immediately notify Pa Basement of any breach by Pa Basement of any faflure of the Work or service m conform to the arms of the Agreement Pa Basement shall have the right m re-eater the Premises to inspect the Premises and shtall be given a reasonable opportunity m cuIIe a>ri problems with the Work err service. 1X. Pa Basement is not undertalmsg any Work as the gteeriot ofthe Ptemiaes except as expaeasly set frith in this Agtscment Therefore, the agreed uspon to1a1 price in the Agreement does not inchide rerotmag replace or claomg of gutte<, downspouts, veins, tripes, ducts, wing conduits, or the removal err ruplacemeart of shnsbl~ery, abtmments or other ol>s4rsc~na. Pa Basements only respoasrbility with regard to any exOaciot work would be m perform rough gusding, and Fa Basement dace not gnarentsx the suavival of Brass, ru:moved Plantings, trues or shnrbbery when exteaior work is performed. X. Should arty albrration be made m the Work by anyone other rhea Pa Basement without the express written permission of Pa Basement a stwusld Owner breach the agreement eortmCd into by Pa Basement sad Owmr for the Work (AgreemeaY~, all wsranties provided corder the Rgreemmt are deemed null and void and Pa Basement shall be relieved of a>ry obligation m make a>ry service calls. Date Issued Signatiue Signature Under C;ontraat: # Date 17ate Exhibit B IE1'~!fl ~fl~il From: Adam Seiferth <aseiferth~c-wlaw.com> ~~ Thursday, February 23, 2012 3:09 PM To: Angie Horchler; jgiurintano~tthlaw.com; Kristen Sinisi ~c: Mary Henry Subject: RE: Risser v. Pa Basement Waterproofing As Mr. Giurintano referenced, I am now representing PA Basement and 1S Williams & Son. As Mr. Angino is apparently not aware, we have engaged an independent contractor to proceeding with the r mediation work and to address DEP's Act 2 compliance, without admission of liability, and will voluntarily pay for the sa e. Soil sampling w{{I be completed this Tuesday, February 23, 2012. If this is now unacceptable, please advise imm lately. Regarding the remaining issues below, please see my letter dated February 14, 2012, and I will await your responses to the discovery served on that date. If there are any questions or concerns, please contact me by phone. Adam ~. Setiferth, Esquire CIPRIANI & WERNER, P.C. 1011 MOMMA ROAD, SINTE 201, LEMOYNE, PA 17043 P: 717-975-9800 C: 717-756-2161 F: T17-975-3846 PENNSYLVANIA -NEW JERSEY - wEST VIRGINIA From: Anc,~e Horchler [mailbo:ahorchler~angino-rovner.com] SMnt: Thursday, Februa~r 23, 2012 2:42 PM To: Adam Sei~erth; jgiurirrtano~-tthlaw.com ~bf eet: Risser v. Pa Basement Waberproofirrlg *This email was dictated and approved by Richard Angino. Mr. Seiferth and Mr. Giurintano: This afternoon you are having the Risser property tested. I look forward to the results of the tests. Despite the results of the test, our demand will still be $100,000. Mrs. Risser, her husband, and her child have been subjected to the fumes from your clients' reckless conduct nd will continue to be exposed to fumes until you are authorized to pay for the remedial work required. The Risers o not have the financial wherewithal to engage someone to perform the remedial work. It is in your client's best in Brest to authorize payment for the remedial work. You will be given credit toward the eventual jury verdict. If your clients are unwilling to authorize the remedial work, we wiN bring that matter to the attention of the jury and the jury will be able to evaluate the claim as to your clients reckless and outrageous conduct in not only using the harm, failing to notify the Risers as to what has been done, and now refusing to voluntarily pay for the reme ial work. This case has multiple components in evaluating the damages: 1. not only negligence but reckless and outrageous conduct with punitive damages. 2. The cost of the remedial work. 3. Pain and suffering, inconvenience, and concern with respect to the toxic fumes; and 4. depreciation of value of the property even after remedial work has been performed. Our demand for $100,000 will satisfy all of those damages if paid within 30 days. If $100,000 is not paid withi thirty (30) days, your clients will still have an opportunity to pay for the remedial work and obtain a credit on the ure jury verdict. If your clients do not pay for the remedial work, our offer of $100,000 to settle will be withdrawn aft r 30 days and we will go to trial. Richard C. Angina Richard C. Angina, Esquire Angina & Rovner, P. C. 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 rcat~angino-rovner. cam Exhibit C From: Adam Seiferth <aseiferth~c-wlaw.com> Sent Monday, February 13, 2012 3:24 PM To: Kristen Sinisi CC Mary Henry Subject Risser v. PA Basement Fdlow Up Flag: Follow up Fisg Ststus: Flagged Kristen, Per my voice message, please give me a call to discuss this matter. My carrier has agreed to pay for the initial! to be performed by a company I have selected. It is not the same company who initially inspected the home. contact person will need to briefly inspect the site prior to proceeding with the sampling, and is available to d week, except Wednesday. We can then schedule the sampling. Once the sampling is completed, we will get for the Act 2 remediation compliance and go from there. If your client is agreeable to proceeding in this fashi let me know and advise when we could stop by the home to do the initial inspection. Adam L. Seiferth, Esquire CIPRIANI & WERNER, P.C. My ~ that this n estimate m, please 1011 MOMMA ROAD, SUITE 201, LEMOYNE, PA 17043 P: 717-1i7S-9600 C: 717-756-2161 F:717-975-3848 PENNSYLVANIA -NEW JERSEY -WEST VIRGINIA Exhibit D From: Angie Horchler SNttt Thursday, February 23, 2012 2:42 PM To: 'aseiferth~c-wlaw.com'; jgiurintano~tthlaw.com Subject: Risser v. Pa Basement Waterproofing *This email was dictated and approved by Richard Angino. Mr. Seiferth and Mr. Giurintano: This afternoon you are having the Risser property tested. I look forward to the results of the tests. Despite tf~e results of the test, our demand will still be $100,000. Mrs. Risser, her husband, and her child, have been subjected to the fumes from your clients' reckless conduct nd will continue to be exposed to fumes until you are authorized to pay for the remedial work required. The Kissers o not have the financial wherewithal to engage someone to perform the remedial work. It is in your clients best in Brest to authorize payment for the remedial work. You will be given credit toward the eventual jury verdict. If your clients are unwilling to authorize the remedial work, we will bring that matter to the attention of the jury and the jury will be able to evaluate the claim as to your clients reckless and outrageous conduct in not only using the harm, failing to notify the Kissers as to what has been done, and now refusing to voluntarily pay for the reme ial work. This case has multiple components in evaluating the damages: 1. not only negligence but reckless and outrageous conduct with punitive damages. 2. The cost of the remedial work. Pain and suffering, inconvenience, and concern with respect to the toxic fumes; and 4. depreciation of value of the property even after remedial work has been performed. Our demand for $100,000 will satisfy all of those damages if paid within 30 days. If $100,000 is not paid wi (30) days, your clients will still have an opportunity to pay for the remedial work and obtain a credit on the verdict. If your clients do not pay for the remedial work, our offer of $100,000 to settle wili be withdrawn and we will go to trial. Rkhord C. Angino Richard C. Angieo, Esq©ire Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 rcana.angino-rovner. com thirty ire jury r 30 days Exhibit E 1 From: Kristen Sinisi Sent: Thursday, February 23, 2012 4:38 PM To: 'Adam Seiferth'; Angie Horchler Cc: Mary Henry Subject: RE: Risser v. Pa Basement Waterproofing Adam, We are prepared to move forward with testing next week. As we discussed, pursuant to paragraph 13 of Ms. R' ear's contract with PA Basement, "If any alteration is made to PA Basement Waterproofing Inc. system without wri en permission from PA Basement Waterproofing Inc," PA Basement may not be obligated to honor the warranty. hus, we ask that you provide such written permission prior to Tuesday. Also, your expert indicated that he needs Ms. Kisser's phone number and email address for the DEP form. Her phone number is (717) 350-6910, and her email address is eap~rr1970@yahoo.c:om. Please let me know if you requi any further information. °fhank you, Kri~L~,vv N. S%ruiL, l:sgture~ ksinisi@angino-rovner.com Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 171 10 717-238-b791, ext. 3027 The content of this E-mail message is attonrey privileged and highly confidential, directed only to the above named penron. Therefore, distribution, utilization or copying of this infom-ation by anyone other than the obsigne(ed recipient is StnCtly prohibited. If you have enoneously received this communication, please notify us immediately at (717) 238-6791, and return the original message to us by E-mail Thank you Fran: Adam Seiferth [mailOo:aseifdthe~c-wlaw.oom] Sent: Thursday, February 23, 2012 3:09 PM To: Angle Horchler; jgiurintanoe~tttthlaw.oom; Kristen Sinisi Cc: Wary Henry Subject: RE: Risser v. Pa Basement Waterproofing As Mr. Giurintano referenced, I am now representing PA Basement and 1S Williams & Son. As Mr. Angina is apparently not aware, we have engaged an independent contractor to proceeding wi h the remediation work and to address DEP's Act 2 compliance, without admission of liability, and will volun arily pay for the same. Sail sampling will be completed this Tuesday, February 23, 2012. If this is now unaccep ble, please advise immediately. Regarding the remaining issues below, please see my letter dated February 14, 2012, and 1 will await your client's responses to the discovery served on that date. If there are any questions or concerns, please contact me by phone. Adam L. Seiferth, Esquire 1- CIPRIANI & WERNER, P.C. 1011 MOMMA ROAD, SURE 201, LEMOYNE. PA 17043 P:717-975-9600 C:717-758-2161 F:717-975-3846 PENNSYLVANIA -NEW JERSEY -WEST VIRGINIA Prom: Angie Horchier [mailto:ahorchlerr~angino-rovrtler.com) Sent: Thursday, February 23, 2012 2:42 PM To: Adam Sefferth; jgiurintarx~thlaw.oom Subs: Risser v. Pa Basement Waterproofing *This email was dictated and approved by Richard Angino. Mr. Seiferth and Mr. Giurintano: This afternoon you are having the Risser property tested. I look forward to the results of the tests. results of the test, our demand will still be $100,000. Mrs. Risser, her husband, and her child have been subjected to the fumes from your clients' reckless and will continue to be exposed to fumes until you are authorized to pay for the remedial work requ Risers do not have the financial wherewithal to engage someone to perform the remedial work. It i client's best interest to authorize payment for the remedial work. You will be given credit toward th jury verdict. If your clients are unwilling to authorize the remedial work, we will bring that matter to the a the jury and the jury will be able to evaluate the claim as to your clients reckless and outrageous cone only causing the harm, failing to notify the Risers as to what has been done, and now refusing to vole for the remedial work. This case has multiple components in evaluating the damages: not only negligence but reckless and outrageous conduct with punitive damages. The cost of the remedial work. 3. Pain and suffering, inconvenience, and concern with respect to the toxic fumes; and 4. depreciation of value of the property even after remedial work has been performed. Our demand for $100,000 will satisfy aN of those damages if paid within 30 days. If $100,000 is not thirty (30) days, your clients will still have an opportunity to pay #or the remedial work and obtain a future jury verdict. If your clients do not pay for the remedial work, our offer of $100,000 to settle withdrawn after 30 days and we will go to trial. Richard C. Angino Richard C. Angino, Esquire Angino & Rovner, P. C. 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 rca(a~,angino-rovner. com the Id. The n your tention of uct in not ntarily pay within lit on the be Exhibit F Jun, 12. 2011 10:15AM Lenexa, KS • (Y13) EM8-~~124 Lexin6forti KY •(651)263.2666 Bwaler~tp, lA •(318} 747-7734 nc • t~s)16s-1414 BUie•eW, VA • (2'~"d) 322-646'/ No, 6259 P, '~,9 Ki1gs{ioet, TN • (429) Ashland, VA • (804) 7 ear. wv •(304) s chorusan, wv • (3a) D. VA • (8~0) Z GunpowdK Road / IlscharNcsburg, PA 17®x0 / (3a1j A!~-~36 / F~ut (304) Z64i-8ri4 / Et»dl ~nma1 February 24, 20l 2 Mr. George R-oife To-~~na1 ~lP Mana{g+er Lower Pa~t~x To~rasltlp 425 Princx 3tareet ll~risburg, Pennayivama 17109 'VYA Cp1tT~9ED MAIL - RETURN REC~~T ~Q~S'f Re: No. 2 Feret Otl Rele~aa~e Risser PrOperg+ • 121 D (r~bi S"r~t • 1Y'onytsb~rrg, Lower Ppxfon Tow~fp Daaplt~n Cors~ey,1'en>-raylvanta De6lr Mr. Woif~ Pemsyivania's Lard Rocyclittg end Envirol Rpuediatien Std Act (Act require that a Notice of Ynteat (NI1~ be pcovjded to tl>e mtmiapality in wldch the site is load In accordaaoe with the p~visions of Act 2, we are folly nr~f~tiog 1-ou of otrr int~eat re~ediate the above-rrtferentxd property. A copy of the NIR, whidi bas been smt to t Penosylveaia ~ of Eavimlonn+astal ProDoction (PAbB1~, is . 'This noticcer will pnblsshed in Tlk Patriot News. This noatx is made under ponoviaion of the Land Reryclu-g and Fnviro~nmental Act, the Act of May 19,1995, P.L. #4, No. 2. Should you harm any gtieationa or comments re~aMin~g the proposed rcmodiaUion, ~ do not hesitate to coact me 6t (304 ~9-053 S or viae-mail at ' ~ 1 ~, $iaoarly, MarslutU MfHer ~ Aasochf~ee, Yac. ~svlronmmetafScte~ece rmiBk~firs~srtirg ~ ~~ john C. Lyd~ni, P,G, Senior P%fect,btanager r~u~ ~>o's~ onnc~ pc: project Cort'equwtdaa~e Fie aasrw a r~ea~-l. ~ • Gln~ a aneucTU~w< ~a, iCllNCe• • ~r a CA1190M IfAl1A~'NT•l~LRTM!'N~! T~iTNIWrY • INr/A QIANI~ • 0l~b/N'f~CAL LD90~6 l~ElRl7t.B11 Exhibit G J u n. 12. 2012 10 :12AM l.enaxa. KS • (018) 8~d-~'u Latdnpbon. KY •(839}263.2836 Raider CU~t. LA •(818) 741-7751 Raiei~, IVC • {919) 786.1418 84tMald, VA • C178I 322167 www.tnttai.oom No. 6259 P. AshMtd, VA • (ep4) y Beddsyr. WV • (304) ~ ChnrelOn, WV ' (~1) BJsOIg6tx0, VA • (5/0J 2 GuKpaMrdsr Road f Meoltaniesbttrp, PA 17090 /Tel (717) ?30-1a9a /Fate (717) DSO-7139 / Em~N e~rp~nm~1 Ma<tilt S, 2012 Ms. Kathleen 13oarvsth °~ AOi Yalsai)~E aa~d'Wattte 11da~a~eeat MAR ~ 8 Pe~rh-aa~ia bepal<taaeat of ~nviraQ~meatsl Protectfoan z0 Ssud~eda~i Rav Office ~r~n.AL n 909 Blmetton Avenuc Hatrit~tug, Peuttsylveuia 171!0 Re: Nod~x ofrarent to Refaediare (Xr1~ • R rtaatta~as • x210 G,~if srfvaet Lower Paxto>< ?'owrathfp • llauphtn Coemry, P~~~a Dear 1Ks. Horvath On ttdntlf of ~.5. 'VVi ~ 5oa and its ~ cotul9cl, G~rhai d~ 'pV'etaer, P. Mua1Ea~ 11~er dC Aatodatey Ync. (At~dE,!) is p~aaed to enc~e a Dopy of ~e Notice 1>~t to Rernediate (IVrl~ for the above-re~erem~ed ~opectlr (Site). Ia aoear+~ce arith Pennsylvania's Land 1t~ecyrding and Reenedlatiot- S Act (Act 2), ( ~ regulatiota, cafes of tl~e NIIt and 0asociated co~ror letters have bees issued to the Lower Pail Towntihip mene8er and for publication is The Patriot News. Please review the enclosed NIR. If you have mY , Ply fed free to contact at your carlie~t convenience at (717) 230.1838 or via e-mail at john.lydzi l .com• appreciate the bepe~rlment's I~sistemce with this Act 2 project. Y, MarahaII Miler ~ Aaroci~lt~, I~aC. ~8n>~l~+rt~eeal Sekace dV Bwe~ls~ng C. John . L ', P.G. Yice Pr+ettdent rcUdb Eocktwre ~~t cc. I.S. Willis.e dt Son Gpri~ni dt'Werner, P.C. File 41~AL ~",E'S • CIML ~ 8ZIrJCiMiAI • SAL aQM10fa • t1Y01D1 c~11sOM N6Ai1M10f• ISlQItT NRI'NSq TpTa#ONY • Aa11810 lNAaIQ!hMB • AloMiti'MCIN. I.OOSMIO 8lRIltt88s• ,lun, 12. 2012 10:12AM 25~-FII-~Y~18019 Itw.10fL0Ae CO~MMtOfywEA1.TM of PfdM~iVLYANIII ~PA[C1'MHff OF @fIMrW111AElITK t+110TriCi10N auwvu oFw~m M No, b2~9 P. NOTICE OF INTENT TO REIY~Et11ATE {~~ ~, ~~ r~~~rY Act 1~Yi6-Z roquins 4 oansrsi infi~rmatlonal Items to bQ Ned In tho I~t: the ~nsm! bpdiat, Itstirp of cortb~nartte, br!«Mlsd w~f of ttw property, and p~nopoaed remsdpition meastws. In sddlilon Nhch a ite map N arrailable. Property Nsnre Addre:slLoaatfon ~~ City IiatrisbLm+ fNunidpslity (If more than one, Nat all) Loyrer Paocbon Townehdo ttp Code County Dsunlwn Latltudo 4~_. '(dep.) ~4-.'(m~? ~-'(sea) Longitude ~_ °(dep.) 4~`(m~) Horixa~ttai Collection Metltod: Horizordnl R~enoe D~abrm: IVP1n II3 Rsferarx:e Point: Nish to psrtldpate in the DEf~A f1A0A: ^ Contact Dave Hess al ~'~!lM~ll~far detalls_ EPA ID Number, it known: NA .~~~ Provide a deaaiption afi the site oonarninaotlon in pM~t Htngat~e (ap. fuel aN spftl, ttistari chertNatl inclust~tl gat aontarnhattlon), tho rtarnea of any known primary- oo~arnirtsrrts to ifs irtft#~wtsd, into irtterrclsd future use of the property/: The property owner. Paula liiaser, oortirscle~d wlffi PA 8essmertt Inc, to k~ed st#grade~ts~-AOar walet re-dinec:donal equipment in the bewe~merlt of Ihs r+eadertos. The wrtrtc w~ to J.S. WfNema 8 3orr, who instated the equipment on or ebvut June 26. 2011. ApprimdrwaMly 2 after the installation, a rein en'errt ooaerrod, and Mrs. Risser snreNsd fuel oM in the dwsNittp. IrUa. fiber ha slain in a dVil lawsuit Pa i3eisement Waterpnoolktp„ Inc. and J.S. wflflama s son that a fuel of fine ennbsdded in rewement concrete floor sf~ urea aflegedy damaged and that approocifrraiafy m gaNons of home heating dl may !lave ineo the subsurf~e. The property is zoned far residentlal use and is improMea with a air~fe-a~ory drucaixe. It fs wNidpaled ttret property wif oontixie to be used for residential purposes. °~~~ ~r ~ $ zo~z dun. 12. 2012 10:13AM No. b259 P. ~ 2570-FIIA-Bw1110019 Rw.1e1200s ', WIU t+amidi~tllon ba to a sitsspeaiRa itarttland ^ or sa a spsdai industrhl errs ^? if so, them I i or Pi Ihl tnunioipiiNNei trait bi pro~tided 30-day QanmettE period RemotBatorlPropeety OwnidCottsuMint. For each of these rodpierrti of thi approyil of the linsl report, compMte form be1Ow. Rea~alor ,_„ ... .. ._. Contact Person: Adam L. 3eferth, Esquire, do J.S(WiNiertts 8 3on• ~,? 9 a ill 1 Relatlortsitip to ails (e.p. owrw~, remeor, pirtldpitlrp In deir+up, oonauNant}: Rsmedl~or Phone Number: {717) 975~A600 Company Name; CipriMt4 ~ Wemer, P.C. •-- ~ r..~ q Address (streel, city, elite. 21pj: 1411 MixrNna Road, Suite 701, Lemoyne, PA 17043 EmaN Address: asel<erlh(~o~~wlaw.oom Property Oamor ~ . Confect Person: Nirs. Pawls Risser ~ Relationship to site (ep. a~ner, remedielor. ~ in daenuP, aot~titant~ Properly Owner Phone Number: (71 T) 35x6910 CornpatYy Name: NA Address (street, city, stale, ~X 1210 t 8lneet M~risburg, PA 17112 Emaii Address: eap_prr1974@yahoo.oom Consultant Contact Person: John C. Lydzlrlakl, P.G. d RelationsMp to site (e.g. owner, rte, partiaipatirrg in dearatp, oonsullentj: Corrsuftant Phone Number. (717)230-183$ Company Name: MarshaY idler 8 Assodates, Inc. Address (slt'eet, dty, stale, ap): 2 Gunpowder R~oed, l4Aechanirsber8, PA 17060 Ema~ Address: joht~nmai.com Preparer of Notioe of int~rtt to Rotttedlate: Name: John C. Ly~tzfnski, P.G. Address: Marshall 1AfNer $ Assodates, Inc. 2 Gunpowder Road Mechanieaburp. PA 17050 Email Address: john.lydzirtaki~tntna1.com TiYe: Senior Project Marwger Telephone; (717) 230-1838 Et»ail intape File of Site Map showlrtg proEwrty (Ines and gsr~ aros of alb(s) to be rstned~etid to: {~ndrecydirtg~state.pa.us) ~ u n, 12. 2012 10 :14AM i.~ cau~sv of swc was No, 6259 P, ~^ = 400' FIGURE 2 PAULA KISSER RES~ENCE ~~ r-~, 1290 GIR~FMI STREET AERWL VIEW HARRISBURG, PEFN~1tLVAN1A ORMillrt x ~~w Jun. ? 2. 2012 10:14AM No. 6259 P. ''7 Pursuaat to the l..attd Recycling and Enviro~omesntat Rrmodiation Stuxlwrds pct, the act of May ! 9, 1995, P.L. 4, No. 1995-2, mice is hereby given that J.S. 'Williaaas dt Sou ('4Vllitartta) ltas S{ibIDltt~ t0 the PemsylVpnia Depatmsent OtPJVIrI pA a Notice of Inuent to Remediate (N1R) a site lowed at 1210 t.ttit~in Strut, Lovvcr Paxton, Townahlp, Dauphin County, Pe~sylvania. TBis MR stasis that the site is a i~eaidential property where approxiaattle~ly 70-galls of No. 211Yd oil may Z,av~e boon reiaaad to the aubsnrtsce fro®n ~ oal ttedd lint loctnod !n the ba~aeot of tha rnsidestice. Williams has indit~-tee! flat the propottd ~ me~es wrill include poeubk excavation and ~i site dlspaa~al of a passion of the coe~ slab, the crusl,e~d alone wb-bye, and any pe~oleum-imp soil foiloared by the- ooiioo of pcuc-acca~vaRlon still :ales do die ~t of the Act 2 residential Statewide Hettltlt Sttmdaeds for soil. The propaaed fulanc tae of the property will amain residetttisl. Exhibit H nns lvan~a y DEPARTMENT OF EN1/IRONMENTAL PROTECTION EN1/IRONMENTAL CLEANUP AND BROWNFIELtn PROGRAM March 12, 2012 J. S. Williams & Son c% Adam L. Soiferth, Esquire Cipriani 8c Wernar, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 Re: Receipt of Notice of Intent to Remediam Residential Statewide Health Standad Paula Risser Residence eFACTS PF # 754798 1210 Griffin Street, Harrisburg, PA Lower Paxton Tov~nsahip, Dauphin County Ladies and Gerrtle~n: This letter acknowledges receipt of your Notice of intent bo R,e~did{e (NIIt) on Mardi 8, 2012, perdtining to the subject site and submitted~in accordance with the Lend Recyclieg and Fanrl*onmerital Remediation Stattidards Ad (Aot 2). The procedures set forth in Act 2 must be folbw+ed in order for tidy gibe to qualify for the liability protection provided. by the Acx. Please note that proper munioip~d arid' public notificat{oas of this NIR are required. If in the future you choose to utilise either the sibe,~peaific or then special industrial aroa stsadard, you will need to resubmit the NIR and folbw the requirerra~a relating to public involvement plan ooorditntion with the local municipality. Please coarser this office if you need advice on these requirements. Technical and progra~r- info~ion can be fotmd at y.absbe.oa.~ under the DBP Program "bend Recycling." Please Hobe some of the iafaynation first is avaihbk from this web page: • Statutes and Regis. • Guidance and Technical Tools, including a link to the Tedniail Guidance M~ual. • Forms and Lists. o A copy of the `~'ransrnittal Sheet for Pfan/Report Subnniaaioa" which should be inchrded with any Flans or repasts that yogi subsssit. o Optional checklists helpful itt assuring reports are conrplebe before submittal. DBP tug the checklists to perform technical oomplebeneas reviews when plans and/or reports are submitted. • Conferonces and Act 2 Training opportunities. A final report, accompanied by ffie required fee, should be submitted to tins Departa~ot of rsmrh+oetmental Protection (Dtj npan completion of n>mediatiaa. Include doeumentaEioa veriFyi~g a>mpliaaoe with the public notifia~lon requirements. The Forms and List: web page iAalude~ ary online final report summery form. This form should be ootnph~ted and•submitted oahine~ioa fitlal.report approval: ~• :: . A: -::t' r.. The Uniform Environmorrtal Cov~enanb Act (Act 68 of 2007), Title 27, PaC.S. Chapter 65 {UBCA), provides a atar<dai+dized'process for' creating. documenting and awing the eaforoetbility of activity and use lin~itations'on contantitrated'sibes involving engineering and institutioisat'oontrols used~to achieve SoutMraentral Regla~al oe (909 EM>erbori Avenue ~ fiarrtsbut+p, PA 1711 717.705.4864 ~ Fax 717.705.4830 www,depvrab.state,pa,us PrkRW on Recy~kd -~per ,~ __ T- J. S. Williams 8t Son - 2 - March 12, 2012 Act 2srrtndards. The Dapiu~t's approval of a Final RePost may need to be s~tpporoed lry an metal covertaat. The Depentmm~t rooo~d: submitting a drdt oovanas~ with the Finsi Report. Tyro agned copies of the aavu~ontnental covaasartt wlli neod b be mbmitbd er`ther with the Final Report or up to 30 clays after Final lZeport approval, and urea recaalad ctn deeds of aged properties. All sigaei ee~stts seed to be sstbstdaed widt a l~ trwiaw lee. Feather boa abost USCA stay be found on the Depaetmeat'a web site at v~ww.dee.etses.~ under the DBP Prom "Lmd Recycling." The Deps~ent wad the County Coase:`+ation Distrieb (~) era coming their roapective reviewer of Ad 2 R+cmediatiaa and B~ioit dt Sedimentatiast (Bat~S~ Flares to easura oomple with C~tapber 102 and the NaRional Pc~ttbutt Disdtarge 131imin~ioa System (I~'DBl!} peessibtiog retpsirements. CerCain .oartbaroviug activhiea assoaeRed with Act 2 raroedletion, dasrolibiat, artd site r+edavelopasaat are ragttLted to provestt aedinsent pollution and rotaase of eontamiaants tiv area wabetways. These activities incitde: • Whene earthmoving activities are less than 5,000 aquaro feet, Baia Best I~geartant Practica8 wilt be followed. • Fatrthmoving impacting 5,000 square feat to one acre must pgsare an Bats Plan meeting the recltii of Chaffer 102 and the FdtS Mrmusl. The pLn must be available onsite for infection and may need approval. • Harthmovieg inrpactisrg or disturbing mm+e than one sera regitis+as alt NPDF.S Staemws~er Permit and/or EdtS Plan appcovats. I3o not initiate any earth di:tttcbanoe adivitiea until a Nl?'DES permit is issued. NPU~S Permit a~jpi~iaxs~ siise remediatiorvreedcNSlopwsrst corsdacAsnl awr+kr Act Z are ro bo ssrbasrttad to tlx respective CCD in which the sits is loe Attsxdt a copy o!f t6u ldiar sp PlararPertnit applications being sabanitled to the Waietahed Management Progra3n or the CCD. Further 8~ can be located on tits program's website. As a r+erttinder, any i'M'o1~ ~nng a ~ l~h or approve! will need bn gn th~rortglt a Pentrsylvania Natural Diversity Ltdcx (P'NDl} screetiiag. ~Y Pfd cotsfliets with the~ened and ertdartget+od species must be resolved prior bD submitting as appliattion. Ryan Carr is the pa+oject ot8oor assigned to your project srd will be vvo~ing with you to~vands~ the ranediation of this site. Frequent oontaci is onoouraged batwear your reptesetttitiv~es wad our staff. If yon have any questions or steed fbrdter clarific~ioas of our prooeduroa, pletao call 11~lr. Gar at 717.705.4841. ~. ~~~ Kathleen G. Horvath, P.G. Special Projects Chief Environmeattat Cleanup and Brownfield Redevelopmattt Progam cc: ]ohn C. L . ydziaaki, P.G., Marattall IvGller do Asaocitilea, Inc...... Dauphin County Cortaervation District Lower Paxton Towrmhip email: David Crownovet, DF.P Exhibit I KJ'~lfl 1 prpr; Angie Horchler ~: Tuesday, March 27, 2012 11:42 AM To: aseiferth~c-wlaw.com Svbie~ Risser v. Pa. Basement Waterproofing *This email was dictated and approved by RCA. Mr. Seiferth: I was pleased to learn that steps are being taken to remediate Mrs. Risers property. I had sent a demand let January 25, 2012. This case has significant jury verdict potential from the standpoint of punitive liability facts damages. Mrs. Risser and her family have been exposed to toxic fumes for almost a year. Mer property, even being remediated will have a substantial deminution in market value. There is the element of substantial pun damages. Failure to offer a reasonable settlement can expose the carrier(s) to a bad faith anion. It is time fog carrier(s) and clients to recognize that I am going to personally try the case. If you are unable to get together to be paid within 30 days plus the cost of remediation, at the end of 30 days the offer to settle will be withdra not, at this point, have my clients consent to settle but if the offer is made within thirty (30) days I fees confide conclude this matter and go on to other cases. Richard C. Angino Ric6Ard C. Angino, Esquire Angino & Rovner, P. C. 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 rca a(~ngino-rovner. com on the . I do we can __ _ _ __ ~ F _ __ _~ Exhibit J From: Adam Seiferth <aseiferth~c-wlaw.com> Sent: Monday, March 26, 2012 4:59 PM To: Kristen Sinisi Cc: Mary Henry Subject: Risser v. PA Basement Follow fUp Flag: Follow up Flag Statux Flagged Kristen, In follow up to your voicemail from Friday, Minuteman is able to begin the work on Monday April 2, 2012. Jut let me know if that is acceptable, and I will have them proceed accordingly. You mention about the holes left from the drilling. They were filled with a temporary foam in the event a sampling needed to be done. The will be filled with permanent cement as part of finishing the basement If you have any more questions (or if I missed one) let me know. Otherwise, I will await the green light from next Monday. Thanks. Adam L. Seiferth, Esquire CIPRIANI & WERNER, P.C. 1011 MUMMA RdAO, SUITE 201, LEMOYNE, PA 17043 P:717-975-9600 C:717-756-2161 F: 717-975-3846 PENNSYLVANIA -NEW JERSEY -WEST VIRGINIA for 1 Exhibit K From: Adam Seiferth <aseiferthl~c-wlaw.com> Serer Thursday, April 12, 201211:20 AM To: Kristen Sinisi Cc: Mary Henry; Angie Horchler Subject RE: Risser v. PA Basement I agree that we should watt until the remediation is done before deposing contractors or anyone at this point. I do anticipate the process to conclude before the end of this month {if not the end of next week). I will let you kn w when I will need access to the pipe and would not anticipate any destructive testing at all. If there was a need, we w uld not do that until there is agreement. Adam L. Seiferth, Esquire CIPRIANI & WERNER, P. C. 1011 MOMMA ROAD, SUITE 201, LEMOYNE, PA 17043 P: 717-975-9600 C:717-756-2161 F: 717-975-3846 PENNSYLVANIA -NEW JERSEY -WEST VIRGINIA From: Kristen Sinisi [rne1lRo:icsinisi~angirw-rovner.eom] Sent: Thursday, April 12, 2012 11:14 AM To: Adam Seiferth Cc: Ar>9ie Hornchler; Mary Henry Subf sc~ RE: Risser v. PA Basement Adam: The extracted pipe is currently in our possession. It is located in Angina & Rovner's carriage house (on site). F me know when you would like to access the pipe and I will ensure that someone is here to assist you. 1 assume expert inspection you plan to have done at this point will be non-destructive; is that correct? Perhaps we should set aside deposition dates until we have a better idea of whe1~ remediation efforts will be complete. We obvious depose the contractors after the process is complete, but based on our conversation yesterday,l'm not sure that ~ when this will be. What are your thoughts? Thank you. Kri~tevv N. S+.+tii~v, Esqu~i.~-~. ksinisita'~,an>:ino-rovner.com Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 717-238-6791, ext. 3027 The cor-tent of Mis E-mail message is attorney privileged and highly oonfxfential, directed only to Me above named person. Therefore, distribution, copyrng of this information by anyone other Man Me dbsignated radprent is strictly prohib#ed It you have erroneously received this communication, please notify us immediately et (717) 238-6791, and return the original message fo us by From: Richxd Angino Sent: Wednesday, April 11, 2012 12:23 PM To: 'Adam Seiferth ;Kristen Sinisi lease let hat any wait to y plan to re know or Thank you. 1 Cc: Angie Horchler Mary Henry ', Sulyec~ RE: Risser v. PA Basement ', Set up with Kristen. Pipe for inspection and depositions with Kristen and my secretary The content of this E-mail message is aftomey privibped and highly confMsr-tisl, dirscYed only to the above named person. Then3tore, di ributior utilization or copying of this information by anyone other than the designated recipient is strictly prohibited. if you have erroneously received Phis communication, please notrly us immediately at (717) 238-6791, and return the ohginal message to s by E- mail. Thank you. From: Adam Seiferth [mailbo:aseiferth~c-wlaw.com] Sent: Wednesday, April 11, 2012 11:01 AM To: Richard Angino; Kristen Sinisi Cc: Angie Horchler; Mary Henry Subjeet: RE: Risser v. PA Basement Fair enough. I understand that you have taken possession of the portion of the pipe that has een extracted from the basement. Please advise when I may be able to access the pipe for purpo es of an inspection by an expert. Proceeding with depositions is fine as well. Perhaps we can set aside some dates in May once the remediation work is concluded? Feel free to a-mail proposed dates with the understanding t at I would also request the opportunity to depose Ms. Risser and her husband at that time. Adam L. Seiferth, Esquire CIPRIANI & WERNER, P.C. 1011 MUMMA ROAD, SUITE 201, LEMOYNE, PA 17043 P:717-975-9600 C:717-756-2161 F:717-975-3846 PENNSYLVANIA -NEW JERSEY -WEST VIRGINIA From: Richard Angino [mailbo:rcas~ang~o-rovner.oom] Sent: Wednesday, April li, 2012 10:54 AM To: Adam Seiferth; Kristen Sinisi Cc: Angie Horchler RE: Risser v. PA Basement I intend to proceed to judgment and verdict including compensatory damages for diminution f value of property, pain suffering and inconvenience, and punitive damages. There is also potential me ical and lost earnings. 1 do not see your defense but we will submit the issues to a jury. I agree to cre it your clients for the expenses they incur by not claiming the omount expended as part of the claim o by utilizing the omount and have the jury determine if you are responsible. We should set up deg itions including the individuals doing the remediation. The content of this E-mail message is etromey privileged and highly conlidentral, direrxea only ro the above named person. distribution, utilization or copying of this information by anyone other than the absignated recipienrt is stnrxly prohibited. !f you have erroneously received this communication, please nobly us immediately at (7f 7) 23ti-ti791, and return the original ssage to us by E-mail. Thank you. From: Adam Seiferth [mailLo:aseiferth~c-wiaw.oom] Sent: Wednesday, April 11, 2012 9:49 AM To: Kristen Sinisi Cc: Richard Angino; Angie Horchler Subject: RE: Risser v. PA Baserr>Ient 2 l Ms. Sinisi: Thank-you for your email below. The email you cite from me is taken out of context a it refers to the initial soil sampling and my letter of February 14 which is expressy incorporate into the e-mail I sent. That letter states: "Also, in follow-up to my voice message an a-mail previously left with Ms. Sinisi, plea be advised that my client's carrier is willing to pay for initial samplin6 and work-up of an ct 2 remediation plan. This would be undertaken by a Minuteman Spill Response, and we eady, willing and able to proceed with the initial sampling. Please advise if your client is ag eeabie to proceeding in this fashion." The a-mail you cite also ignores subsequent communications specifically addressing t e excavation process that is occurring now, which never suggest that my client would v luntarily pay for it. In any event, the contractor will continue to proceed with the remediation work at the time and in the face of the new evidence that this pipe is severely corroded, evidence which th Aufierro report never considered. We are not waiving any rights, and expressly reserve the ri ht, to pursue reimbursement of the costs incurred for all work subsequent to the soil sample g. While I do not have the authority at this time, it would seem mare than reasonable to have your client sign a general release of all claims in exchange for which my client will pay fort e remediation of the basement. Ultimately, this would be a windfall for your client. Le me know if your client has any interest in this regard. Adam L. Seiferth, Esquire CIPRIANI & V~ERNER, P.C. 1011 MIMAAAA ROAD, SUITE 201, LEMOYNE. PA 17043 P;717-975-9600 C:717-756-2161 F:717-975-3846 PENNSYLVANIA -NEW JERSEY -WEST VIRGINIA ifr+om: Kristen Sinisi [maitbo:ksinisi~angino-rovner.aom] Sent: Tuesday, April 10, 2012 3:18 PM To: Adam Seiferth Cc: Rkhard Angino; Angie Horchler SubieCt: RE: Risser v. PA Basement *This email was dictated but not approved by Richard C. Angino. Dear Mr. Seiferth: This letter will confirm our position regarding remediation and our response to your email dated Apri16, 2012. II On or about June 4, 2011, Ms. Risser entered into a contract with P sylvania Basement, pursuant to which it performed waterproofing services on June 27, 2011. wring the next heavy rainfall, on July 7, 2011, Ms. Risser began to smell strong odo of fuel oil. Subsequently, she learned that the contents of her fuel-oil tank-approximately 7 gallons- leaked out of the fuel-oil line. Of particular importance is the relatively short time uence of these events and the fact that Ms. Risser lived at this residence for over six years with ut incident until the waterproofing work was completed by your client. Not coincidentally, the cause and origin inspection performed by Aufiero Associates determined that the damage to the f~el-oil line was a result of the work performed by your clients, not a result of corrosion of the pipe . Ms. Risser contacted our office in August 2011, and we filed suit in November 2011. After the Court overruled the Preliminary Objections, you voluntarily agreed to y for the costs of remediation in your email dated February 23, 2012. That email states, "we ha a engaged an independent contractor to proceed[] with the remediation work and to address D P's Act 2 compliance, without admission of liability, aea! ~-llll volnatau~v rmv for the rise.. . If this is now unacceptable, please advise immediately." In response, we advised that this was acceptable. Now, you maintain that there exist holes in the pipe and that it could have been leaking for years. This does not make any sense. Your above-referenced email advi that your client(s) would pay for the costs of remediation. if their position is now that they will of pay for it, it will simply show bad faith on their part. If there are factual issues, they will all be resolved in future litigation. Very truly yours, Kristen N. Sinisi, on behalf Richard C. Angino /kns From: Adam Seiferth [mailto:aseiferth@c-wlaw.comJ Sent: Friday, Apri106, 2012 3:36 PM To: Kristen Sinisi Sobject: FW: Risser v. PA Basement Kristen: I was at your client's home this afternoon and had the opportunity to photogr extracted oil line (first 3 attachments) and the surrounding soil from which it extracted (4th attachment). It appears abundantly clear that your client's fuel caused by a deteriorating and corroded metal fuel oil line which has been dec wet soil underneath the cement basement floor for years, if not decades. Inds see the remnants of the corroding pipe embedded in the soil. The line is riddl holes. Minuteman wilt not be on site on Monday, as it is a holiday for them. I would that you contact me on Monday to seriously discuss how to proceed. There is evidence to suggest that the oil line was compromised by my clients actions. 1 location of the line is not even in the area where my client would have done an excavation work. During our phone conference, [will be reque~ing that you c this lawsuit immediately. I will also request that we make arrangements for th of the billing for the work to your fum or your client. Please forward this a-mail to Mr. Angino as well so that he is aware that our settlement offer is withdrawn. We will be making no further settlement offe contemplating an approach to have the expenses paid to date reimbursed to r either through litigation or by other means. the l leak was ing in the you can with fact, the transfer I am also client, 1 am available all day on Monday. Adam L. Seiferth, Esquire CIPRIANI 8c WERNER, P.C. l01 l MUMMA ROAD, SUITE 201, LEMOYNE, PA 17043 P:717-975-9600 C:717-756-2161 F:717-975-3846 PENNSYLVANIA -NEW JERSEY -WEST VIRGINIA E~ibit L Fes; Kristen Sinisi Send Wednesday, April 18, 2022 2:43 PM To: RCA Group Subjett~ Risser update: remediation cancelled again After our last discussion, Adam Risser indicated that remediation efforts would be continued until G at which time his client may/may not seek reimbursement. Today, he called and said that within the days, all remediation efforts will be ended without completion. Specifically, he said that the contractors have now dug the whole way down to the bedrock of the four 'on, chasing the oil. If they proceed, there will need to be excavation performed to the outside of the home and a structural engineer will need to be involved to deal with the supporting post in the middle of the base ent and the footers in the walls. The geologist employed by Minutemen has indicated that the oil found is yin excess of 70 gallons and could only be the result of a pipe which was leaking for years, due to the s volume of oil found. Adam said that the situation is the "worst case scenario." Even after remediation is com fete, several monitoring wells need to be constructed for the DEP and would require its quarterly motito ' for a minimum of two years. Further digging could also implicate surrounding wells, as there are over twe water wells within aquarter-mile radius of the Risser home. The cost of completion is approaching and ma exceed the value of the home. Adam said that regardless of what his clients did/ "did not" volunteer to pay for, they did not sign up f r this. He has been instructed by the carrier to stop remediation efforts at this point. We have three opti ns: (1) leave the site as it currently is; (2) have the contractors fill in the huge hole in the Risser basement wi gravel; or (3) have it both filled in with gravel and then recemented. I will discuss with Ms. Risser and advi Adam accordingly. Adam has taken no position on whether the basement, either in its current state or with gravellcement, is "safe" for our client. He understands that urgency is an issue and is amenable to req esting a scheduling conference and proceeding on the fast-track to trial. KNS VERIFICATION I, Paula R. Risser, Plaintiff, have read the foregoing Complaint and do hereby swear affirm that the facts set forth therein are true and correct to the best of my knowledge, i and belief. I understand that this Verification is made subject to the penalties of 1 S §4904, relating to unsworn falsification to authorities. U(~ Witn s Dated: ~ Z ~ PAULA R KISSER Dated: ~~~~ 499688 ~...~ ~1 CIPRIANI & WERNER A PROFESSIONAL CORPORATION ATTORNEYS AT LAW ADAM L. SEIFERTH 1011 Mumma Road, Suite 201 ~-whtw ~n Lemoyne, Pennsylvania 17043-1145 Telephone (717) 975-9600 Fax:(7l7)975-3846 www.C-WLAW.com July ls, 2012 Kristen N. Sinisi, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 Telephone (412) 563- Te 610567 Seianta~ OI~Bce: Telephme (570) 347 Markey Otlke: Telephone (856) 761- VV6eellnt OfAee: Telephone (304) 232- CYaiieseee ORke: Tekphoae (304) 341 RE: Paula R. Risser v. Pennsylvania Basement Waterproofing, Inc et al, Docket No.: 12-4043 Claim No.: 21101838 Our File No.: 1187-29253H Dear Ms. Sinisi: I have enclosed the executed Acceptance of Service. This letter also confirms that, exchange for accepting service, that .you have agreed that my clients have forty-five (45) da; from this date to file a responsive pleading to the Complaint. You have also agreed discontinue the other action(s) previously filed regarding this incident. Should you have any questions, please contact me. Very truly Yours, G~OrC ' Adam L. Seiferth ALS/meh . Enclosure Adam Saiferth From: Mary Henry Sent+ Wednesday, July 18, 2012 10:15 AM To: 'Angie Horchler' Subject: RE: Risser v. Pa. Basement Angie, yes the original will be going out in the mail today. Thank you. Mary Henry (Paralegal to Adam L. Seiferth, Esquire, Mark R. Zogby, Esquire and E. Ralph Godfrey, Esquire CIPRIANI & WERNER PC 1011 MUMMA ROAD, SUITE 201 ~ LEMOYNE, PA 17043 (717) 975-9600 (MAIN) ~ (717) 975-3846 (FAX) ~ www.c-wlaw.com ~ mhenry@c-wlaw.com This communication, including attachments, may contain information that is confidential and protected by the attorney/client or other privileges; and is otherwise protected from disclosure under applicable law. It constitu public information intended to be conveyed only to the designated recipient. If the reader or recipient of this communication is not the intended recipient, an employee or agent of the intended recipient who is responsibl delivering it to the intended recipient, or you believe that you have received this communication in error, plea the sender immediately by return a-mail and promptly delete this a-mail, including attachments without readi~ saving them in any manner. The unauthorized use, dissemination, distribution, or reproduction of this a-mail, it attachments, is prohibited and may be unlawful. Receipt by anyone other than the intended recipient is not a W any attorney/client or other privilege. PITTSBURGH • HARRISBURG • SCRANTON • PHILADELPHIA • MT. LAUREL • WHEELING • CHARLESTON -----Original Message--- From: Angie Horchler [mailto:ahorchler@angino-rovner.com] Sent: Wednesday, July 18, 2012 9:54 AM To: Mary Henry Subject: FW: Risser v. Pa. Basement Mary: We have received the Acceptance of Service via fax. Will you be sending the original? We'd like to file o Court. Thank you. Angie Angela D. Horchler non- for notify or luding giver of Secretary to Richard C. Angino, Esquire Daryl E. Christopher, Esquire, Kristen N. Sinisi, Esquire Angino & Rovne~ P.C. 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 ahorchler@angino-rovner.com The content of this E-mail message is attorney privileged and highly confidential, directed only to the above na person. Therefore, distribution, utilization or copying of this information by anyone other than the designated is strictly prohibited. If you have erroneously received this communication, please notify us immediately at (717) 238-6791, and ret rn the original message to us by E-mail. Thank you. -----Original Message---- From: Kristen Sinisi Sent: Tuesday, July 17, 2012 9:38 AM To: Adam Seiferth; Angie Horchler Cc: Mary Henry Subject: RE: Risser v. Pa. Basement Adam-we agree to your condition. Thank you, Kristen N. Sinisi, Esquire ksinisi @angino-rovner.com Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 717-238-6791, ext. 3027 The content of this E-mail message is attorney privileged and highly confidential, directed only to the above na ed person. Therefore, distribution, utilization or copying of this information by anyone other than the designated recipient is strictly prohibited. If you have erroneously received this communication, please notify us immediately at (727) 238-6791, and ret~rn the original message to us by E-mail. Thank you. From: Adam Seiferth [maitto:aseiferth@c-wlaw.com] Sent: Tuesday, July 17, 2012 8:53 AM To: Angie Horchler Cc: Kristen Sinisi; Mary Henry Subject: RE: Risser v. Pa. Basement z t ~ I can agree to accept service for all defendants, provided I am granted 45 days from the date of acceptance to f responsive pleading to the new Complaint and the other actions are discontinued. If this is acceptable, you will the acceptance tomorrow. Please advise. Adam L. Seiferth, Esquire CIPRIANI & WERNER, P.C. 1011 MUMMA ROAD, SUITE 201, LEMOYNE, PA 17043 P:717-975-9600 C:717-756-2161 F:717-975-3846 PENNSYLVANIA -NEW JERSEY -WEST VIRGINIA From: Angie Horchler [mailto:ahorchler@angino-rovner.com] Sent: Monday, July 16, 2012 4:42 PM To: Adam Seiferth Cc: Kristen Sinisi Subject: Risser v. Pa. Basement Mr. Seiferth: le a receive Our office forwarded to you a new Complaint on June 27, 2012, which was then time-stamped 6/30/12. Along ith the Complaint we sent an Acceptance of Service for your signature on behalf of all defendants. Our 30 days to pe ect service is approaching. Would you be so kind as to inform me of your intentions with the Acceptance of Servi ?Thank you. Angie Angela D. Horchler Secretary to Richard C. Angino, Esquire Daryl E. Christopher, Esquire, Kristen N. Sinisi, Esquire Angino & 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 ahorchler@angino-rovner.com The content of this E-mail message is attorney privileged and highly confidential, directed only to the above na person. Therefore, distribution, utilization or copying of this information by anyone other than the designated is strictly prohibited. P.C. 3 If you have erroneously received this communication, please notify us immediately at (717) 238-6791, and return the original message to us by E-mail. Thank you. ~ a ~9f CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing, OBJECTIONS OF DEFENDANTS TO PLAINTIFF'S COMPLAINT, has been duly upon all counsel of record and parties of interest by depositing the same in the United mail, first class, pursuant to the Pennsylvania Rules of Civil Procedure, on this 31 gr day v V ' , 2012, addressed as follows: Richard C. Angino, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110-1708 (Counsel for Plaintiff} Respectfully submitted, CIPRIANI & WERNER, P.C. BY: ADAM L. SEIFERTH, E5 Counsel for the Defendants r PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) M CAPTION OF CASE M ' C/) 0 (entire caption must be stated in full) r _ 4 PAULA R. RISSER > { © _ • • vs. C) CD , PENNSYLVANIA BASEMENT WATERPROOFING, INC., ;TAMES WILLIAMS d/b/a J.S. WILLIAMS AND -+ c ? SON% JAMES S. WILLIAMS, DEREK S. WILLIAMS, 4043 2012 No and FREDERICK MUTUAL INSURANCE COMPANY Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFF'S COMPLAINT 2. Identify all counsel who will argue cases: (a) for plaintiffs: Richard C. Angino, Esquire, 4503 North Front Street, Harrisburg, PA 17110 (Name and Address) (b) for defendants: Adam L. Seiferth, Esquire, 1011 Mumma Road, Suite 201, Lemoyne, PA 17043 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. See attached Certificate of Service. 4. Argument Court Date: October 5, 2012 Adam L. Seiferth, Esquire Date: August 31, 2012 Print your name U Defendants Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. 7S ANA Q M? 91 . C?#agoa,9o ?a r• , CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing, PRAECIPE FOR LISTING CASE FOR ARGUMENT, has been duly served upon all counsel of record and parties of interest by depositing the same in the United States mail, first class, pursuant to the Pennsylvania Rules of Civil Procedure, on this 3' '57- day of hU6-U->'i , 2012, addressed as follows: Richard C. Angino, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110-1708 (Counsel for Plaintiff ) Respectfully submitted, BY: CIPRIANI & WERNER, P.C. Fl ti..E.J-01- r 10E 11� FROTHOHOTAR' 2013 APR 19 AM 11: 414 PENNSYLVI COUNTY ANGINO&ROVNER,P.C. Richard C.Angino,Esquire Attorney ID#: 07140 Kristen N.Sinisi,Esquire Attorney ID#:311381 4503 North Front Street Harrisburg,PA 17110-1708 (717)238-6791 FAX(717)238-5610 E-mail:rca @angino-rovner.com ksinisi @angino-rovner.com Attorneys for Plaintiffs) PAULA R. RISSER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA v. NO. 12-4043 CIVIL PENNSYLVANIA BASEMENT WATERPROOFING, INC., JAMES WILLIAMS d/b/a J.S. WILLIAMS AND CIVIL ACTION - LAW SON, JAMES S. WILLIAMS, DERECK S. WILLIAMS, and FREDERICK MUTUAL INSURANCE COMPANY, Defendants JURY TRIAL DEMANDED PARTIES' JOINT STIPULATION OF CASE MANAGEMENT DEADLINES AND NOW, come the Parties, by and through their attorneys, and jointly file the foregoing Stipulation of Case Management Deadlines. IT IS HEREBY STIPULATED AND AGREED by and between the above-named parties, that the following case-manag:'ment deadlines apply in this action: (B) All fact discovery commenced in time to be completed by June 17, 2013; (C) Expert reports from expert witnesses to testify at trial due: From Plaintiff: June 17, 2013; • From Defendant: July 31, 2013; (D) Plaintiffs rebuttal expert report(s)due: August 16, 2013; (E) Dispositive motions filed by September 30, 2013; and, (F) The parties may file a Praecipe to list the above-captioned case for trial upon resolution of dispositive motions, or if none are filed, after September 30, 2013. The foregoing Stipulation has been signed by all Parties that have appeared in the instant action. Respectfully submitted, Respectfully submitted, ANGINO &ROVNER, P.C. CIPRIANI & WERNER, P.C. .1► —��1l►74 liZrcL.7vAnIgo e e, Esquire Adam L. Seiferth, Esquir- PA I.D. No. 07140 PA I.D.No. 89073 rca @angino-rovner.com aseiferth @c-wlaw.com Kristen N. Sinisi, Esquire 1011 Mumma Road, 11 PA I.D. No. 311381 Lemoyne, PA 17043 ksinisi @angino-rovner.com (717)975-9600 4503 N. Front Street Attorney for Defendants Harrisburg, PA 17110 (717) 238-6791 Attorneys for Plaintiffs Date: April 17 , 2013 Date: April )p 2013 CERTIFICATE OF SERVICE I, Angela D. Horchier, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of the foregoing Parties' Joint Stipulation of Case Management Deadlines was served upon all counsel of record via postage prepaid first class United States mail addressed as follows: Adam L. Seiferth, Esquire Cipriani &Werner 1011 Mumma Road, Suite 201 Lemoyne,PA 17043-1145 i /1" •1(1164/1r1 Dated: - �� , 2013 By Angela D. Horchler PAULA R. RISSER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA V. 4 NO. 12-4043 CIVIL c ` ' PENNSYLVANIA BASEMENT ' ;:Z;- . . rtt •. . rn WATERPROOFING, INC., JAMES gym.. r ro - �� ' m WILLIAMS d/b/a J.S. WILLIAMS AND CIVIL ACTION - LAW :P0 4= SON, JAMES S. WILLIAMS, DERECK S. oc WILLIAMS, and FREDERICK MUTUAL _ �° INSURANCE COMPANY, y, Defendants JURY TRIAL DEMANDED ., po. ..` . ORDER AND NOW, this AI th day of /�� L 2013, in consideration of the Parties' Joint Stipulation of Case Management Deadlines, it is hereby ORDERED AND DECREED that the following deadlines will apply in this action: (A) All fact discovery commenced in time to be completed by June 17, 2013; (B) Expert reports from expert witnesses to testify at trial due: from Plaintiff: June 17, 2013; from Defendant: July 31, 2013; (C) Plaintiff's rebuttal expert report(s) due: August 16, 2013; (D) Dispositive motions filed by September 30, 2013; and, (E) The parties may file a Praecipe to list the above-captioned case for trial upon resolution of diapositive motions, or if none are filed, after September 30, 2013. m B e Court J ---- c Distribution: Richard C. Angino, Esquire ngino &Rovner 4503 N. Front Street Harrisburg, PA 17110 (Counsel for Plaintiff) ,Kdam L. Seiferth, Esquire Cipriani& Werner, P.C. 1011 Mumma Road, Suite 201 Lemoyne,PA 17043 (%oansei'for Defendants) 2 F iL o-0 F 10E i. THE 1• RO fH0N0WAPy 2,0133 PLAY -- I Afl 11. c 9 CUMWRLAND COUNTY PENNSYLVANIA ANGINO&ROVNER,P.C. Richard C.Angino,Esquire Attorney ID#: 07140 Daryl E.Christopher,Esquire Attorney ID#: 91895 4503 North Front Street Harrisburg,PA 17110-1708 (717)238 76791 FAX(717)238-5610 E-mails:rca @angino-rovner.com dchristopher @angino-rovner.com Attorneys for Plaintiffs PAULA R. RISSER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA V. NO. 12-4043 CIVIL PENNSYLVANIA BASEMENT -WATERPROOFING,INC., JAMES WILLIAMS dib/a J.S. WILLIAMS AND CIVIL ACTION - LAW SON,.JAMES S. WILLIAMS, DERECK S. WILLIAMS, and FREDERICK MUTUAL INSURANCE COMPANY, Defendants JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANTS AND NOW, comes the Plaintiff, Paula R. Risser, by and through her attorneys, Angino &Rovner, P.C., and states the following by way of Reply to New Matter filed by Defendants: 152. Denied. Plaintiff hereby incorporates by reference the paragraphs set forth in her Complaint as if stated in full herein. 153. Admitted. It is admitted that Defendant J.S. Williams & Son (hereinafter, "J.S. Williams"), by and through its employees, installed a subgrade/subfloor water re-directional system within Plaintiff's basement on or about June 26, 2011. By way of further response, at all times relevant hereto, Plaintiff believed the work was being performed by Defendant PA Basement Waterproofing, Inc. (hereinafter, "PA Basement"). Plaintiff contracted with Defendant PA Basement for the work to be performed and paid Defendant PA Basement for said services. Moreover, Defendant PA Basement led Plaintiff to believe that it was performing said waterproofing services, by and through its employees and agents. At no time during performance of the waterproofing services did Defendant J.S. Williams or its employees/agents inform Plaintiff that the work was being performed by an entity other than Defendant PA Basement. Plaintiff reasonably relied upon .Defendant PA Basement Waterproofing's representations that it would be performing the subject work. Further, Paintiff reasonably and actually believed that all such services were performed by Defendant PA Basement. It was only after commecning the instant litigation and seeking discovery that Plaintiff learned that Defendant PA Basement subcontracted the subject work to Defendant J.S. Williams. 154. Admitted in part, denied in part. It is admitted that Defendant J.S. Williams, by and through its employees, performed work required to install the subgrade/subfloor waterr re- directional equipment in Plaintiff's basement on June 26, 2011. However, at all times relevant hereto, Plaintiff believed the work was being performed by Defendant PA Basement. Plaintiff contracted with Defendant PA Basement for the work to be performed and paid Defendant PA Basement for said services. Moreover, Defendant PA Basement led Plaintiff to believe that it was performing said waterproofing services, by and through its employees and agents. At no time during performance of the waterproofing services did Defendant J.S. Williams or its employees/agents inform Plaintiff that the work was being performed by an entity other, than Defendant PA Basement. Plaintiff reasonably relied upon Defendant PA Basement Waterproofing's representations that it would be performing the subject work. Further, Paintiff reasonably and actually believed that all such services were performed by Defendant PA 523929 2 Basement. It was only after commeening the instant litigation and seeking discovery that Plaintiff learned that Defendant PA Basement subcontracted the subject work to Defendant J.S. Williams. Plaintiff is without knowledge.as to whether Defendant PA Basement performed a_y work with regard to her basement, or if all work was performed by Defendant LS. Williams. Therefore, the statement that Defendant J.S. Williams performed "all" of the work required to install the subgrade/subfloor equipment is denied. 155. Admitted. After having conducted discovery, Plaintiff believes and therefore avers that as of June 2011, Defendant J.S. Williams was a subcontractor of Defendant PA Basement. By way of further response, it was only after commeening the instant litigation and seeking discovery that Plaintiff learned that Defendant PA Basement subcontracted the subject work to Defendant J.S. Williams. At all times relevant hereto, Plaintiff was led to believe, and did in fact believe, that the subject waterproofing work was being performed by Defendant PA Basement and its employees/agents. 156. Admitted in part, denied in part. After having conducted discovery, Plaintiff believes and therefore avers that the subject work was performed by agents and/or employees of Defendant J.S. Williams. However, the extent to which Defendant PA Basement controlled that work is unknown to Plaintiff. At all times relevant hereto, Plaintiff believed the work was being performed by Defendant PA Basement. Plaintiff contracted with Defendant PA Basement for the work to be performed- and paid Defendant PA Basement for said services. Moreover, Defendant PA Basement led Plaintiff to believe that it was performing said waterproofing services, by and through its employees and agents. At no time during performance of the waterproofing services did Defendant J.S. Williams or its employees/agents inform Plaintiff that 523929 3 the work was being performed by an entity other than Defendant PA Basement. Plaintiff . asonably relied upon Defendant PA Basement Waterproofing's representations that it would be performing the subject work. Further, Paintiff reasonably and actually believed that all such services were performed by Defendant,PA Basement. It was only after.commecning the instant litigation and seeking discovery that Plaintiff learned that Defendant PA Basement subcontracted the subject work to Defendant J.S. Williams. Therefore, the extent to which the agents/employees who performed the work were acting on behalf of Defendant J.S. Williams as opposed to the behalf of Defendant PA Basement is unknown at this time. 157. Denied. It is specifically denied that Defendants did not sever or otherwise impact the fuel oil line at issue in Plaintiff's Complaint. To the contrary, it is averred that Defendants, by and through their employees'and/or agents, did impact the subject fuel oil line, thereby causing it to release fuel oil into Plaintiff's subsurface soils. 158. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact;they are specifically denied 159. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. 160. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. By way of further response, it is specifically denied that the release of fuel oil into the ground beneath Plaintiffs basement floor was the result of longstanding and substantial corrosion of the fuel oil line which preexisted the installation of the subject waterproofing system. To the contrary, it is averred that the subject leakage is a direct and proximate result of Defendants' waterproofing activities, during which time they impacted the subject fuel-oil line. 523929 4 161. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. By way of further response, it is specifically denied that the subgrade/subfloor water redirectional system was installed in a reasonable and non-negligent manner. To the contrary, it is averred that Defendants performed the subject waterproofing activities in a negligent manner, thereby impacting the fuel-oil line. By way of further response, it is averred that Defendants acted in a wanton, reckless manner insofar as their employees and/or agents: knowingly and purposefully failed to inform Plaintiff of the damaged oil line, failed to repair the same, concealed the same, and failed to turn off Plaintiffs oil tank valve. See Compl. ¶ 84. 162. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. 163. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. 164. Denied. It is specifically denied that Defendants did not promise to remediate Plaintiffs property to the extent required to obtain complaince with the Act 2 program administered by the Pennsylvania Department of Environmental Protection (PADEP). It is averred that Defendants, by and through their counsel, did, in fact, make such a promise. See Compl. ¶¶ 123-146 & Exhibit B. 165. Admitted in part, denied in part. It is admitted that Defendants promised to perform initial soil sampling and to prepare a remediation plan pursuant to Act 2. It is specifically denied that this is the extent of the promises made by Defendants. By way of further response, by and through their counsel, Defendants promised to remediate Plaintiff's property to 523929 5 the extent required to obtain compliance with the PADEP's Act 2 remediation program. See Compl. t¶ 123-146 & Exhibit B. 166: Denied. This paragraph is,denied as a conclusion.of law. To.the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. 167. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. By way of further response, it is denied that the fuel oil had been released as a result of corrosion and/or disintegration. It is further denied that extraction of the fuel oil line revealed the same. Moreover,--it is denied that corrosion and/or disintegration existed throughout the length of the fuel oil line. By way of further response, the fuel oil was released as a result of Defendants' waterproofing services, insofar as they impacted the subject fuel-oil line. 168. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. By way `of further response, it is specifically denied that at this area of intersection, the fuel oil line showed no evidence of fuel oil leak or impact. 169. Denied. This paragraph is denied as a conclusion of law. To the extent that.this paragraph is deemed to contain averments of fact, they are specifically denied. By way of further response, Plaintiff refrained from. hiring her own remediators to perform said remediation efforts. As a result of Defendants' promise, the PADEP as well as Plaintiff's neighbors were put on notice of the fact and extent of the fuel oil leakage. By way of further response, see Compl. ¶¶ 123-146. 170. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are.specifically denied. By way of 523929 6 further response, Plaintiff refrained from hiring her own remediators to perform said remediation efforts.. As a result of Defendants' promise, the PADEP as well as Plaintiff's neighbors were put on notice of the fact and extent of the fuel oil leakage. By way.of further response, see Compl. ¶¶ 123-146. 171. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. By way of further response, it is specifically denied that Plaintiff "only benefitted" from the remediation work undertaken by Defendants. To the contrary, Plaintiff suffered detriment as a result of her reliance on .Defendants' unfulfilled promises. See Compl. ¶¶ 123-146. Moreover, in remediating the subject property, Defendants' agents destroyed soil samples without first informing Plaintiff of its intent to do the same, and thereby spoiled important evidence. 172. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. By way of further response, it is specifically denied that Plaintiff "only benefitted" from the remediation work undertaken by Defendants. To the contrary, Plaintiff suffered detriment as a result of her reliance on Defendants' unfulfilled promises. See Compl. ¶¶ 123-146. Moreover, in remediating the subject property, Defendants'agents destroyed soil samples without first informing Plaintiff of its intent to do the same, and thereby spoiled important evidence. 173. Denied. It is specifically denied that the nature and/or extent of the remediation work required to aattain Act 2 compliance was not altered by Defendants' actions or inactions. By way of further response, due to Defendants' actions in commencing remediation, putting the PADEP on notice of the remediation; and in "chasing" the oil leak to the bedrock of the foundation, the efforts of Plaintiff as required as per Act 2 became heightened. 523929 7 174. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. By way of further response; see, e.g., Matarazzo v. Millers.Mut.Group, Inc., 927 A.2d 689, 698 n.10 (Pa. Commw. 2007) ("[i]n promissory estoppel, the remedy is adjusted to suit each case. The remedy can include (1) money damages measured by the foreseeable injury resulting from non- performance; (2) restitution measured by the promisor's unjust enrichment; (3) reliance damages to reimburse the expenses incurred by the promise; or (4) specific performance." (emphasis added)); Shallenberger.Constr., Inc. v. Rath, Supply, Inc., 59 Pa. D. & C. 4`h 328, 333 (C.P. Fayette, Jan. 8, 2002) (explaining that the Pennsylvania Supreme Court adopted § 90 of the Restatement, comment (d) of which allows a promise which is binding under a theory of promissory estoppel to be enforced "by normal remedies" and citing other Pennsylvania cases which have permitted the same). 175. Denied. This paragraph is denied as_a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. By way of further response, see Matarazzo v. Millers Mutt Group, Inc., 927 A.2d 689, 698 ii.10 (Pa. Commw. 2007). 176. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. By way of further response, Plaintiff refrained from hiring her own remediators to perform said remediation efforts. As a result of Defendants' promise, the PADEP as well as Plaintiff's neighbors were put on notice of the fact and extent of the fuel oil leakage. See Compl. ¶¶ 123-146. Moreover, in remediating the subject property, Defendants' agents destroyed soil samples without first informing Plaintiff of its intent to do the same, and thereby spoiled important evidence. 523929 8 177. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. By way of further.response,.Plaintiff has taken all necessary measures to reasonably mitigate her damages. 178. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. 179. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. 180. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. By way of further response, Plaintiff specifically alleges that Defendants' conduct was outrageous, wanton, and reckless. Specifically, it is averred that Defendants acted in a wanton, reckless manner insofar as their employees and/or agents: knowingly and purposefully failed to inform Plaintiff of the damaged oil line, failed to repair the same, concealed the same, and failed to turn off Plaintiff's oil tank valve. See Compl. ¶ 84. 181. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. 182. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. By way of further response, it is specifically denied that Plaintiffs claim is barred, in whole or in part, by the statute of limitations or statute of repose. 183. Denied. This paragraph is denied as a conclusion of law. To the extent that this paragraph is deemed to contain averments of fact, they are specifically denied. 523929 9 WHEREFORE, Plaintiff, Paula R. Risser, demands judgment against Defendants in an amount in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest, costs, and punitive damages,and in excess of any jurisdictional amount requiring compulsory arbitration. Respectfully submitted, ANGINO & ROVNER, P.C. Richa . Angino, Esquire I.D. No. 07140 Daryl E. Christopher, Esquire I.D. No. 91895 Kristen N. Sinisi, Esquire I.D. No. 31,3,81 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 rca@angino-rovner.com mm�� Attorneys for Plaintiff Date: Apriles69, 2013 523929 10 r VERIFICATION I, Paula R. Risser, Plaintiff, have read the foregoing Reply to New Matter of Defendants and do hereby swear or affirm that the facts set forth therein are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904,relating to unsworn falsification to authorities. 0 rrnn Y! Witness PAULA R. RISSER Dated: �'a9`�� Dated: LI Jq J 523929 1 1 CERTIFICATE OF.SERVICE 1, Angela D. Horchler, an employee of Angino & Rovner, P.C. hereby certify that a true and correct copy of the foregoing.Plaintiff.s.Reply to New Matter of Defendants.was served by United States first-class mail; postage prepaid, upon the following: Adam L. Seiferth, Esquire Cipriani & Werner 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 Angela D. Horchler Dated: April 2013 523929 12 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PAULA R. RISSER, ) CASE NO: 12-4043 Plaintiff ) rn M r= cnr- v. DQ o-r PENNSYLVANIA BASEMENT ) o WATERPROOFING, INC.;JAMES ) �' .: " -�rn WILLIAMS d/b/a J.S. WILLIAMS AND ) -< ca SONS,JAMES S. WILLIAMS, DERECK S. ) WILLIAMS, and FREDERICK MUTUAL ) INSURANCE COMPANY, ) Defendants ) JURY TRIAL DEMANDED DEFENDANTS' MOTION FOR PROTECTIVE ORDER REGARDING_ PLAINTIFF'S SUBPOENA TO ATTEND AND TESTIFY DIRECTED TO DEFENDANTS' COUNSEL AND NOW, come the Defendants, by and through its attorneys, Cipriani & Werner, P.C., and file this Motion for Protective Order pursuant to Pa.R.C.P. 4012 regarding Plaintiff's Subpoena to Attend and Testify directed to Defendants' Counsel, and in support thereof, state as follows: 1, This lawsuit arises out of a fuel oil release on the Plaintiff's property located at 1210 Griffin Street, Harrisburg, Dauphin County, Pennsylvania. 2. Undersigned counsel has represented Defendants at all times relevant. i 3. On or about June 18, 2012, the Plaintiff commenced the present action by filing a Complaint against the Defendants. 4. In her Complaint, Plaintiff alleges that Defendants, in the course of performing waterproofing services, severed a fuel oil line embedded in a concrete slab in Plaini!,r:'s '.Plaintiff filed a prior action at Docket No. 11-8509 arising out of the same oil release. basement. After disposition of Preliminary Objections, Plaintiff's claims against Defendants were limited to negligence and promissory estoppel. 5. With respect to the promissory estoppel claim, Plaintiff's Complaint alleges that Defendants, by and through their counsel, promised to perform and voluntarily pay for remediation work required per the Pennsylvania Department of Environmental Protection's Act 2 program. (See, Plaintiff's Complaint,paragraph 127). 6. Plaintiff also attached various correspondence and emails exchanged between Plaintiff's and Defendants' Counsel regarding the alleged promise to perform the remediation as Exhibits to her Complaint. 7. On April.9 and 10, 2013, Plaintiff counsel's office emailed Defendants' counsel advising of Plaintiff's counsel's intention to depose Defendants' counsel. (A true and correct copy of the April 10, 2013 email is attached as Exhibit"A"). 8. In response, Defendants' counsel advised that it would be inappropriate and unnecessary to provide deposition testimony and invited Plaintiff's counsel to discuss the issue. (See,Exhibit"A"). 9. Thereafter, on April 17, 2013, Plaintiff's counsel served a Subpoena to Attend and Testify on Defendants' counsel, unilaterally scheduling the deposition for May 10, 2013 at the offices of Plaintiff's counsel. (See, Exhibit`B") 10. It is believed and, therefore, averred that Plaintiff's counsel intends on questing Defendants' counsel regarding the facts and circumstance of the alleged promise to remediate Plaintiff's property and the reasons and basis for the decision to not complete the remediation so as to attain compliance with the Pennsylvania Department of Environmental Protection's Act 2 program. (See, Exhibit"A"). 11_ However, prior to scheduling the deposition of Defendants' counsel, Plaintiff served written discovery specifically addressing the promissory estoppel claim against Defendants, inclusive of the following: a. Plaintiff's Interrogatories (Set II) and Request for Production of Documents (Set II) Propounded Upon All Defendants, dated March 12, 2013 (collectively attached hereto as Exhibit"C"); and, b. Plaintiffs Interrogatories (Set III), Request for Production of Documents (Set III), and Request for Admissions Propounded Upon All Defendants, dated April 15, 2413 (collectively attached hereto as Exhibit"D"). 12. Pennsylvania Rule of Civil Procedure 4012 provides that "Upon motion by a party or by the person from whom discovery or deposition is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment,.oppression, burden or expense, including one or more of the following: (1)that the discovery or deposition shall be prohibited; ...". Pa.R.C.P. 4012. 13. Defendants move this Honorable Court for a Protective Order precluding the deposition of Defendants' counsel for the following reasons: a. The deposition of Defendants' counsel will seek information protected from discovery by the work product doctrine or the attorney-client or other privileges or protections, including communications between counsel and Defendants relating to the defense of the lawsuit. b. The deposition of Defendants' counsel will seek the disclosure of counsel's mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics and, specifically, the legal advice and opinions relating to the defense and settlement strategy of the lawsuit, none of which is discoverable in this matter. C. The deposition of Defendants' counsel will seek information regarding matters not relevant to the subject matter of this action and/or not reasonably calculated to lead to the discovery of admissible evidence, specifically information pertaining to settlement negotiations of this case which are intertwined with the remediation efforts that were conducted. See, Pa.R.E. 448(a). d. Defendants' counsel acted on behalf of his clients as a conduit for any alleged terms or conditions of any alleged promise. To that end, Plaintiff is already in possession written communications from Defendants' counsel regarding those issues, e. Oral depositions of parties' lawyers should be ordered only under clear or extreme circumstances which are not present in the in this matter. See, Cooke a Outdoor Would Corporation, 29 Pa.D. &C.0 572 (1995). 14. It is believed and, therefore, averred that the information sought to discovered through the deposition of Defendants' counsel may be obtained through alternative, less intrusive means of discovery, including the Interrogatories, Request for Production of Documents, and Request for Admissions, all of which Plaintiff has already propounded on Defendants. 15. Further, the deposition Defendants' counsel will cause unreasonable annoyance, embarrassment, oppression, burden, and expense to Defendants. The deposition will require the appearance and preparation of an additional lawyer to defend Defendants' counsel at the deposition. Further, if Plaintiff intends on calling Defendants' counsel as a witness at trial, it may result in the disqualification of Defendants' current counsel per the Pennsylvania Mules of Professional Conduct, Rule 3.7, which would impart an unreasonable burden and expense on Defendants,particularly where the deposition is unnecessary in any event. 16. Should the deposition of Defendants' counsel go forward, then the depositions of Plaintiffs counsel will likely need to be taken. Ultimately, this situation may likely result in the disqualification of both Defendants' and Plaintiff's counsel per the Pennsylvania Rules of Professional Conduct 3.7 due to potential factual disputes and credibility issues. 17. It is believed and, therefore, averred that the deposition of Defendants' counsel is sought in bad faith and intended to harass Defendants because: a. Even assuming a promise to remediate Plaintiffs property was made, Plaintiff`has failed to come forward with any evidence that she suffered any damages and/or detrimental reliance as a result of receiving the gratuitous benefit of extensive remediation. See, Stelmack v Glen Alden Coal Compan 339 Pa. 410, 14 A.2d 127 (1940): b. Any alleged promise was made in the context of settlement negotiations and no such settlement was ever accepted by Plaintiff. C. The fuel oil line upon which Plaintiff's claims are based and/or arise out of was not severed as alleged in Plaintiff's Complaint. d. The information sought by Plaintiff is already in Plaintiff's possession are obtainable through means other than Defendants' counsel's deposition. e. Plaintiff's counsel unilaterally scheduled the deposition without conferring with Defendants' counsel. 18. Pursuant to Pennsylvania Rule of Civil Procedure 4013, the deposition of Defendants' counsel should be stayed pending the disposition of this Motion for Protective Order. 19. The Honorable Edward E. Guido has had prior involvement in this matter, having ruled on Defendants' Preliminary Objections to Plaintiff's Complaint. WHEREFORE, Defendants respectfully request that this Honorable Court stay the deposition of undersigned counsel and enter a Protective Order precluding the deposition of Defendants' counsel or, in the alternative, enter a Rule to show cause why the relief sought in this Motion should not be granted. Respectfully submitted, CIPRIANI& WERNER, P.C. BY: ADAM L. SEIFERTH, S I Attorney ID# 89073 1011 Mumma Road, Suit 201 Lemoyne, PA 17043 (717)-975-9600 Date: �� � —a,��3 aseiferth @c-wlaw.com Counsel for the Defendants, PENNSYLVANIA BASEMENT WATERPROOFING, INC., JAMES WILLIAMS d/b/a J.S. WILLIAMS AND SONS, JAMES S. WILLIAMS, DERECK S. WILLIAMS, and FREDERICK MUTUAL INSURANCE COMPANY Exhibit A n w Adam L. Seiferth From: Kristen Sinisi <ksinisi @angino-rovner.com> Sent: Tuesday,April 09, 2013 2:50 PM To: Adam L. Seiferth Cc: Angie Horchler Subject: Risser v. PA Basement Hi Adam— I'm writing in follow up on a voicemail I left you this afternoon. I will be out of the office today and most of tomorrow, so I thought it would be easier to discuss this with you via email. As you know, Ms. Risser's breach of contract claim in the amended complaint has been dismissed, but the promissory estoppel claim remains. In connection,Mr. Angino intends to depose you regarding any promises you made on behalf of your client. He will also be issuing additional discovery in this regard. Angie of my office has been instructed to contact you to schedule the deposition. I did not want you to be surprised when you heard from her. Thanks. Very truly, Kr4te+v N. S6ni41, Esgl.ir'el ksinisi@angino-rovner.com Angino&Rovner,F.C. 4503 N.Front Street Harrisburg,PA 17110 717-238-6791,ext. 3027 www.angino-rovner.com The content of this E-mail message is attorney privileged and highly confidential,directed only to the above named person. Therefore,distribution,utilization or copying of this information by anyone other than the designated recipient is strictly prohibited. If you have erroneously received this communication,please notify us immediately at(717)238-6791,and return the original message to us by E-mail. Thank you. 1 Adam L. Seiferth From: Adam L. Seiferth Sent: Wednesday, April 10, 2013 4:35 PM To: Angie Horchler Cc: Kristen Sinisi Subject: RE: Risser v. Pa. Basement Ms. Horchler: It is my position that it would be inappropriate and unnecessary for me,as Defense counsel,to submit to a deposition in this matter and,therefore, I will not voluntarily do so. If Mr.Angino would like to discuss that with me directly, he should feel free to contact me or involve the Court to address the issue. Also,we have not agreed upon,or are otherwise under,a discovery deadline. To the extent that May 15 has been suggested by Mr.Angino, it appears untenable. i stand by my proposal of June 17,2013 for the close of discovery. Thank-you. Adam L. Seiferth, Esquire CIPRIANI & WERNER, P.C. 1011 MUMMA ROAD,SUITE 201,LEMOYNE,PA 17043 P:717-975-9600 C:717-756-2161 F:717-975-3846 PENNSYLVANIA - NEW JERSEY - WEST VIRGINIA From: Angie Horchler jmailto:ahorchier0angino-rovner.com1 Sent: Wednesday, April 10, 2013 1:16_PM To: Adam L. Selferth Cc: Kristen Sinisi Subject: Risser v. Pa. Basement Mr.Seiferth: As you know from a voicemail and email of yesterday from Kristen Sinisi, Mr.Angino would like to depose you regarding the above matter. Since fact discovery must be completed prior to May 15,we are holding the dates of May 10, 13,or 14 for your deposition. Please inform me of your availability on these dates at your early convenience. Thank you. Angie Angela D. Horchler Secretary to Richard C.Angino,Esquire Daryl E. Christopher,Esquire, and Kristen N. Sinisi,Esquire Angino &Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 —(717)23$-5610/Fax ahorchlerga.,angino-rovner.com The content of this Email message is attorney privileged and highly confidential,directed only to the above named person. Therefore,distribution,utilization or copying of this information by anyone other than the designated recipient is strictly prohibited. 1 Exhibit B ic angino-rovner )S 4503 NORTH]FRONT STREET RICHARD C.ANGINO NEIL J.ROVNER HARRISBURG,PA 17110-1799 DAVID L.LuTz MICHAEL E.KOSIK RICHARD A.SADLOCK USA M.BENZIE 717/23S-6791 DARYL K CHRISTOPHER KRISTEN N.Sim& FAX 717/238-5610 W W.ANGINO-ROVNER.COM E-MAIL: RCA@ANGINO-ROVNER.COM April 16,2013 CERTIFIED MAIL-RETURN RECEIPT Adam L. Seiferth, Esquire Cipriani & Werner 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 RE: Risser v. Pennsylvania Basement Waterproofing, Inc. et al. C.C.P. Cumberland County,No. 12-4043 Civil Dear Attorney Seiferth: Enclosed please find a Subpoena to Attend and Testify for your deposition scheduled for May 10, 2013, at 10:00 a.m.here in our offices. Very truly yours, R I 0hard. C. gino /ah Enclosure 520421 . y COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Paula R.Risser Plaintiff versus : No. 12-4043 Pennsylvania Basement Waterproofing, : Inc.,et al. Defendants : SUBPOENA TO ATTEND AND TESTIFY TO: Adam L. Seiferth, Esquire Cia 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 1. You are ordered by the Court to come to Angino & Rovner, P.C., 4503 North Front Street-, Harrisburg, Pennsylvania, May 10, 2013, at 10:00 am., to testify on behalf of Plaintiff in the above case, and"to remain until excused. 2. And bring with you the following: 4:;" 'if you fail to attend or to produce the documents or things required by this subpoena,you maybe subject to sanctions authorized by Rule 234.5`of-the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorneys fees and imprisonment. REQUESTED BY A PARTY/ATTORNEY IN COMPLIANCE NVITH Pa.R.C.P. 234.2(a) Name: Richard C. Angino, Esquire Address: 4503 North Front Street Y-1arr sibs r . PA 1711.0 Telephone: (717)238-6791 Supreme Court ID#: '07140 BY THE COURT: Doic: '? ! :Pi%tli6notary/Clerk, Civil Division Seal offlual Court Deputy 0&1Cial h�"ote: This form of subpoena shall be used whenever a subpoena is issuable,including hearings in connection with depositions and before arbitrators,masters,commissioners,etc.,in compliance with Pa.R.C;,P.No.234.1. If a subpoena for a production or documents,records or things is desired,complete paragraph 2. Exhibit C Acn9ino-royner 4503 NORTH FRONT STREET RICHARD C.ANGINO NEIL J.RoVNER HARRISBURG,PA 17110-17199 DAVID L.LUTZ MICHAEL E.Kom RICHARD A.SADLOCK LISA M.BENZIE 717/23$-6791 DARYL E.CHRISTOPHER KRISTEN N.SINISI FAX 717/238-5610 W W W.ANGINO-RO V NERCO M E-MAIL: RCA@ANGINO-ROVNER.COM March 12, 2013 . Adam L. Seiferth, Esquire Cipriani& Werner 1011 Mumma Road, Suite 201 Lemoyne,PA 17043-1145 RE: Risser v. Pennsylvania Basement Waterproofing, Inc. et al. C.C.P. Cuinberland County,No. 12-4043 Civil Dear Attorney Seiferth: Judge Guido, writing for a three judge panel, overruled your preliminary objections addressed to Count IV, Promissory Estoppel. Under promissory estoppel your client is required to either complete the remediation or pay the cost for our clients to complete the remediation. We intend to pursue discovery as to the costs of completing the remediation by requesting responses to interrogatories and requests for production, and by taping depositions of the individuals who provided the remediation services and billed for same. I have enclosed my discovery requests. I still would recommend to the Rissers to accept $150,000 if paid in the next two weeks and bear the risk of what the remediation might cost. Very tTT yours, i r i r^' Ri6ard C. Angino lah F Enclosures 520421 ANGINO&ROVNER,P.C. Richard C.Angino,Esquire Attorney ID# : 07140 Daryl E.Christopher,Esquire Attorney ID#: 91895 4503 North Front Street Harrisburg,PA 17110-1708 (717)238-6791 FAX(717)238-5610 E-mails:rca@ angino-rovner.com dchristopher @angino-rovner.com Attorneys for Plaintiffs PAULA R. RISSER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA V. NO. 12-4043 CIVIL PENNSYLVANIA BASEMENT WATERPROOFING, INC., JAMES WILLIAMS d/b/a J.S. WILLIAMS AND CIVIL ACTION - LAW SON, JAMES S. WILLIAMS, DERECK S. WILLIAMS, and FREDERICK MUTUAL INSURANCE COMPANY, Defendants JURY TRIAL DEMANDED PLAINTIFF'S INTERROGATORIES (SET II) PROPOUNDED UPON ALL DEFENDANTS TO: Pennsylvania Basement Waterproofing, Inc., James Williams d/b/a J.S. Williams and Son, James S. Williams, Dereck S. Williams, and Frederick Mutual Insurance Company c/o Adam L. Seiferth, Esquire Cipriani & Werner 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 Plaintiff, through her attorney, hereby propounds the following Interrogatories upon Defendants pursuant to Rule 4005 of the Pennsylvania Rules of Civil Procedure to be answered within thirty (30) days from service thereof. These Interrogatories shall be deemed to be continuing Interrogatories. If between the time of your answers to said Interrogatories and the time of the trial for this case you or anyone acting on your behalf learns the identity and whereabouts of any other witnesses not identified in your said answers, or if you obtain or become aware of additional requested information not supplied in your answers, you shall promptly furnish the same to plaintiffs' attorney by supplemental answers. For the purposes of these Interrogatories, "ygjl: or "your" refers to the defendants and their files, the defendants' insurance companies and their files, the defendants' attorney and his files, and all other persons, agents, or representatives of the defendants and their files. "You" shall further include all persons on whose behalf defendant prosecutes this action and all persons who will benefit or be legally bound by the results of this action. Your answers to the Interrogatories shall reflect and contain the knowledge of all of the above persons. References to plaintiff and/or defendants shall be interpreted as singular or plural, depending upon the particular circumstances of each case. The term "description" or "describe" as used herein shall mean that the defendants shall set.forth the name and address of the author or originator, dates, title or subject matter, the present custodians of the original and of any copies, and the last known address of each custodian. "Document" shall mean any written, printed, typed or other graphic matter of any kind, whether handwritten,typed or printed,whether distributed or undistributed. It shall include without.limitation letters, memoranda, articles, studies, notebooks, diaries and notes, as well as all mechanical and electronic sound recordings or transcripts thereof in the possession or control of the defendant or known by it to exist. It shall also mean all copies of documents by whatever means made. Answer each interrogatory in the space following the interrogatory. Supplemental sheets may be attached for answers which require additional space. Please'take notice that you are required to serve upon the undersigned your answers in writing within thirty (30) days pursuant to Pennsylvania Rule of Civil Procedure 4006. These Interrogatories are to be deemed continuing and supplemental answers should reasonably be provided. 520429 2 •d INSTRUCTIONS AND DEFINITIONS The following terms have the designated meanings when used herein: A. The term "identify" shall have the following meanings: (1) When used with respect to a document, the term refers to the provision of the following information: (a) the date of the document; (b) the title of the document: (c) any identifying number on the document; (d) any identifying designation for the document: (e) a description of the document; (f) the subject matter of the document; (g) the name, title, address and telephone number of each person who wrote, signed,prepared, dictated,participated in preparation of, created, initialed or otherwise had any function respecting preparation of the document or review of the document; (h) the name, title, address and telephone number of each addressee on the document, as well as the same for each person receiving a copy of the document; (i) the present location of the document and the name and address of the custodian of the document; (j) if a document is not an original,the location, name and address of the custodian of the original; and (k) any other designation necessary to identify the document for purposes of obtaining a copy thereof. B. The term "documents" when used herein shall mean all written, typed, printed, recorded or graphic matter of every type and description, however and by whomever prepared, produced, reproduced, disseminated or made, in any form, now or formerly iri the possession, custody, or control of the party to whom this Request is addressed, its officers, agents, employees and attorneys, or any of them, including but not limited to letters, correspondence, telegrams, memoranda, record, minutes of all types of meetings, contracts, subcontracts, agreements, intra and interoffice communications, purchase orders, requisitions, plans, studies, summaries, analyses, results of investigations, reviews, bulletins, proposals, estimates, appraisals, recommendations, critiques, trip reports, engineering calculations, bills of material, drawings, sketches, blueprints, charts, indices, notices, diaries, books, desk calendars, appointment books, messages, instructions, work assignments, notes, notebooks, tape recordings, partial or complete reports of telephone conversations, photographs, slides, public statements, newspaper or other media releases, public and governmental filings, opinions, and any other writings, drawings or recordings. If any document was, but is no longer, in the possession of the party to whom this Request is addressed or subject to such party's control,please identify the document. C. When used herein, the term "person" shall mean any individual, partnership, joint venture, firm, association, corporation or business or any governmental or legal entity. D. When used herein, the term "communication" shall mean any and all transmissions of information, the information transmitted, the process by which the information is transmitted and the term shall expressly be inclusive of all written and oral communications. 509293 2 E. When used herein, the term "relate to," "relating to" or "in relation to" shall mean constituting, reflecting, representing, supporting, contradicting, referring to, stating, describing, recording, noting, embodying, containing, mentioning, studying, analyzing, discussing, evaluating or relevant to. As indicated, the term necessarily includes information which is in opposition to as well as in support of the position(s) and claim(s)of the party to whom the Request is addressed. F. When used herein, the term "reflect" shall mean embody, contain, record, note, refer to, relate to, describe,be relevant to, state or mention. GENERAL INSTRUCTIONS In construing these interrogatories, A. The singular shall include the plural, and the plural shall include the singular. B. A masculine, feminine or neutral pronoun shall not exclude the other genders. C. The use of any tense of any verb shall be considered to also include within its meaning all other tenses of the verb so used. D. This Request shall be deemed to be continuing. If, between the time of your answers and the time of trial of this case, you or anyone acting on your behalf, learn of any further information not contained in your answers, you shall promptly furnish the additional information by supplemental answers. 509293 3 INTERROGATORIES 1. Please provide an itemization as to the amount(s) of money that you and/or your agents spent in remediating Plaintiff's residence. 509293 4 2. At the time when you discontinued the remediation activities did you have an estimate in writing or orally as to what it would cost to complete the remediation of Plaintiff's residence in accordance with PADEP's Act 2? If so, what was that cost? If the estimate was in writing or email, please include any and all documents or hard copy of same in response to Plaintiff's Request for Production of Documents (Set II). 509293 5 3. Please provide an itemization of the expenses described in Interrogatory#2. 509293 4. Do you have any basis to currently calculate the cost to complete the remediation of Plaintiff's residence in accordance with PADEP's Act 2? If so, what is that amount? If in writing or email, please provide copies of documents or hard copy of estimates in response to Plaintiff's Request for Production of Documents (Set II). 509293 7 5. Please provide an itemization of the expenses described in Interrogatory#4. 509293 8 6. Please identify any individuals which you know or believe to have information relevant to Interrogatories #1-5 above. 509293 9 Respectfully submitted, ANG ROVNER, P.C.,.,,.",. ,r rr' Richard C. Angino, Esquire I.D. No. 07140 Daryl E.rthristopher, Esquire I.D. N Zn 91895 Kris N. Sinisi, Esquire I. . No. 311381 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 rca@angino-rovner.com Attorneys for Plaintiff Date: March , 2013 509293 10 .r a CERTIFICATE OF SERVICE I, Angela D. Horchler, an employee of Angino & Rovner, P.C. hereby certify that a true and correct copy of the foregoing PLAINTIFF'S INTERROGATORIES (SET II) PROPOUNDED UPON ALL DEFENDANTS was served by United States first-class mail, postage prepaid, upon the following: Adam L. Seiferth, Esquire Cipriani & Werner 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 r i Ygefa D. Horchler Dated: March , 2013 520429 1 1 ANGINO&ROVNER,P.C. Richard C.Angino,Esquire Attorney ID# : 07140 Daryl E.Christopher,Esquire Attorney ID#: 91895 4503 North Front Street Harrisburg,PA 17110-1708 (717)238-6791 FAX(717)238-5610 E-mails:rca@ angino-rovner.com dchristopher @angino-rovner.com Attorneys for Plaintiffs PAULA R. RISSER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA V. NO. 12-4043 CIVIL PENNSYLVANIA BASEMENT WATERPROOFING, INC., JAMES WILLIAMS d/b/a J.S. WILLIAMS AND CIVIL ACTION - LAW SON,JAMES S. WILLIAMS, DERECK S. WILLIAMS, and FREDERICK MUTUAL INSURANCE COMPANY, Defendants JURY TRIAL DEMANDED PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS (SET II) PROPOUNDED UPON ALL DEFENDANTS TO: Pennsylvania Basement Waterproofing, Inc., James Williams d/b/a J.S. Williams and Son, James S. Williams, Dereck S. Williams, and Frederick Mutual Insurance Company c/o Adam L. Seiferth, Esquire Cipriani & Werner 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 PLEASE TAKE NOTICE that pursuant to Pa.R.C.P. Nos. 4003.4 and 4009 and/or F.R.C.P. No. 34,please furnish at our expense, at our office, on or before thirty(30) days of service hereof, a photostatic copy or like reproduction of the materials concerning this action or its subject matter 520430 1 which are in your possession, custody or control and which are not protected by the attorney/client privilege; or, in the alternative,produce the said matter at said time to permit inspection and copying thereof PA. R.C.P . 4009.12(b)(2) AND 4009.12(d) APPLY TO THESE REQUESTS. IF YOU OBJECT TO THE SCOPE OF ANY REQUEST, YOU MUST PROVIDE A LIST OF ALL DOCUMENTS WHICH YOU HAVE NOT PRODUCED WHICH FALL WITHIN THE REQUEST AS IT IS PHRASED. YOU MUST ALSO PRODUCE THE LIST OF ANY DOCUMENTS WITHHELD DUE TO YOUR CONSTRUCTION OF THESE REQUESTS AS SET FORTH IN 4009.12(d). FAILURE TO COMPLY WITH PROVISION OF 4009.12(b)(2) and 4009.12(d) WILL RESULT IN THE FILING OF A MOTION TO COMPEL AND MOTION FOR SANCTIONS. Respectfully submitted, ANGIN ROVNER, P.C. Ric and C. Angino,.Esquire I.D. No. 07140 Kristen N,.Sinisi, Esquire I.D. No./` 11381 4503. 4' ront Street 1190isburg, PA 17110 ('f17) 238-6791 Date: March , 2013 Attorneys for Plaintiff 520430 2 INSTRUCTIONS AND DEFINITIONS The following terms have the designated meanings when used herein: A. The term "identify" shall have the following meanings: (1) When used with respect to a document, the term refers to the provision of the following information: (a) the date of the document; (b) the title of the document: (c) any identifying number on the document; (d) any identifying designation for the document: (e) a description of the document; (f) the subject matter of the document; (g) the name, title, address and telephone number of each person who wrote, signed,prepared,dictated,participated in preparation of, created, initialed or otherwise had any function respecting preparation of the document or review of the document; (h) the name, title, address and telephone number of each addressee on the document, as well as the same for each person receiving a copy of the document; (i) the present location of the document and the name and address of the custodian of the document; (j) if a document is not an original,the location, name and address of the custodian of the original; and (k) any other designation necessary to identify the document for purposes of obtaining a copy thereof. B. The term "documents" when used herein shall mean all written, typed, printed, recorded, graphic, and/or video matter of every type and description, however and by whomever prepared, produced, reproduced, disseminated or made, in any form, now or formerly in the possession, custody, or control of the party to whom this Request is addressed, its officers, agents, employees and attorneys, or any of them, including but not limited to letters, correspondence, telegrams, memoranda, records, minutes of all types of meetings, contracts, subcontracts, agreements, intra and interoffice communications, purchase orders, requisitions, plans, studies, summaries, analyses, results of investigations, reviews, bulletins, proposals, estimates, appraisals, 520430 3 recommendations, critiques, trip reports, engineering calculations, bills of material, drawings, sketches, blueprints, charts, indices, notices, diaries, books, desk calendars, appointment books, messages, instructions, work assignments, notes, notebooks, tape recordings, videos, partial or complete reports of telephone conversations, photographs, slides, public statements, newspaper or other media releases, public and governmental filings, opinions, and any other writings, drawings or recordings. If any document was, but is no longer, in the possession of the party to whom this Request is addressed or subject to such party's control,please identify the document. C. When used herein, the term "person" shall mean any individual, partnership,joint venture, firm,association, corporation or business or any governmental or legal entity. D. When used herein, the term "communication" shall mean any and all transmissions of information, the information transmitted, the process by which the information is transmitted and the term shall expressly be inclusive of all written and oral communications. E. When used herein, the term "relate to," "relating to" or "in relation to" shall mean constituting, reflecting, representing, supporting, contradicting, referring to, stating, describing, recording, noting, embodying, containing, mentioning, studying, analyzing, discussing, evaluating or relevant to. As indicated, the term necessarily includes information which is in opposition to as well as in support of the position(s) and claim(s)of the party to whom the Request is addressed. F. When used herein, the term "reflect" shall mean embody, contain, record, note, refer to,relate to, describe,be relevant to, state or mention. GENERAL INSTRUCTIONS A. Whenever a request for documents is framed in the conjunctive, it shall also be taken in the disjunctive, and vice versa. 520430 4 B. Whenever a request for documents is framed in the singular, it shall be taken in the plural, and vice versa. C. The use of any tense of any verb shall be considered to also include within its meaning all other tenses of the verb so used. D. All documents produced shall be segregated and identified by the paragraphs to which they are primarily responsive. Where required by a particular paragraph of this Request, documents produced shall be further segregated and identified as indicated in that paragraph. For any documents which are stored or maintained in files in the normal course of business, such documents shall be produced in such files, or in such a manner as to preserve and identify the file from which such documents were taken. E. If you object to the production of any document on the grounds that the attorney- client, attorney work product or any other privilege is applicable thereto, you shall, with respect to that document: (1) state its date; (2) identify its author; (3) identify each person who prepared or participated in the preparation of the document; (4) identify each person who received it; (5) identify each person from whom the document was received; (6) state the present location of the document and all copies thereof; (7) identify each person who has ever had possession, custody or control of it or a copy thereof; and (8) provide sufficient information concerning the document and the circumstances thereof to explain the claim of privilege and permit the adjudication of the propriety of that claim. F. All documents produced in response to this Request shall be produced in toto notwithstanding the fact that portions thereof may contain information not requested, shall include interim as well as final editions of a document, and shall include all editions or copies of a 520430 5 document which are not identical to, whether due to handwritten notations, revisions or otherwise, the original or other produced copy of a document. G. This Request shall be deemed to be continuing. If, between the time of your answers and the time of trial of this case, you or anyone acting on your behalf, learn of any further information not contained in your answers, you shall promptly furnish the additional information by supplemental answers. REQUESTS 1. Any document directly or indirectly containing information relating to any answer to any Interrogatory. 520430 6 J ! 2. Any document reflecting estimates as to the cost of remediation work on Plaintiff's property, without regard to whether or not that work was actually performed. 3. Any invoices or bills received from anyone who performed any remediation work or provided remediation estimates with respect to Plaintiff's property. 520430 7 4. Any correspondence pertaining to the remediation work on Plaintiff's property, without regard to whether or not that work was actually performed. 520430 8 CERTIFICATE OF SERVICE I, Angela D. Horchler, an employee of Angino & Rovner, P.C. hereby certify that a true and correct copy of the foregoing PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS (SET II) PROPOUNDED UPON ALL DEFENDANTS was served by United States first-class mail, postage prepaid, upon the following: Adam L. Seiferth, Esquire Cipriani& Werner 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 "g&a D. Horchler Dated: March � ,, 2013 520430 9 Exhibit D angino-rovner 4503 NORTH FRONT STREET RICHARD C.ANGINO NEIL J.ROVNER HARRISBURG,PA 17110-1799 DAVID L.LUTZ MICHAEL E.KOSIK RICHARD A.SADLOCK LISA M.BENZIE 717/9,38-6791 DARYL E.CHRISTOPHER KRISTEN N.SINISI FAX 717/238-5610 Y WW.ANGINO-ROVNER.COM E-MAIL: RCA @ANGINO-ROVNER.COM April 15, 2013 Adam L. Seiferth, Esquire Cipriani& Werner. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 RE. Risser v. Pennsylvania Basement Waterproofing, Inc. et al. C.C.P. Cumberland County,No. 12-4043 Civil Dear Attorney Seiferth: Enclosed please find Plaintiffs Interrogatories (Set III), Request for Production of Documents (Set II1), and Plaintiff s Request for Admissions, all propounded upon Defendants. Very ly yours, Richard C. Angino /ah Enclosures 520421 ANGINO&ROVNER,P.C. Richard C.Angino,Esquire Attorney ID# : 07140 Daryl E.Christopher,Esquire Attorney ID#: 91895 4503 North Front Street Harrisburg,PA 17110-1708 (717)238-6791 FAX(717)238-5610 E-mails:rca @angino-rovner.com dchristopher @angino-rovner.com Attorneys for Plaintiffs PAULA R. RISSER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA V. NO. 12-4043 CIVIL PENNSYLVANIA BASEMENT WATERPROOFING, INC., JAMES WILLIAMS d/b/a J.S. WILLIAMS AND CIVIL ACTION - LAW SON, JAMES S. WILLIAMS, DERECK S. WILLIAMS,and FREDERICK MUTUAL INSURANCE COMPANY, Defendants JURY TRIAL DEMANDED PLAINTIFF'S INTERROGATORIES (SET III) PROPOUNDED UPON ALL DEFENDANTS TO: Pennsylvania Basement Waterproofmg,Inc., James Williams d/b/a J.S. Williams and Son, James S. Williams, Dereck S. Williams, and Frederick Mutual Insurance Company c/o Adam L. Seiferth, Esquire Cipriani & Werner 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 Plaintiff, through her attorney, hereby propounds the following Interrogatories upon Defendants pursuant to Rule 4005 of the Pennsylvania Rules of Civil Procedure to be answered within thirty (30) days from service thereof. These Interrogatories shall be deemed to be continuing Interrogatories. If between the time of your answers to said Interrogatories and the time of the trial for this case you or anyone acting on your behalf learns the identity and whereabouts of any other witnesses not identified in your said answers, or if you obtain or become aware of additional requested information not supplied in your answers, you shall promptly furnish the same to plaintiffs' attorney by supplemental answers. For the purposes of these Interrogatories, "you" or "your" refers to the defendants and their files, the defendants' insurance companies and their files, the defendants' attorney and his files, and all other persons, agents, or representatives of the defendants and their files. "You" shall further include all persons on whose behalf defendant prosecutes this action and all persons who will benefit or be legally bound by the results of this action. Your answers to the Interrogatories shall reflect and contain the knowledge of all of the above persons. References to plaintiff and/or defendants shall be interpreted as singular or plural, depending upon the particular circumstances of each case. The term "description" or "describe" as used herein shall mean that the defendants shall set forth the name and address of the author or originator, dates, title or subject matter, the present custodians of the original and of any copies, and the last known address of each custodian. "Document" shall mean any written, printed, typed or other graphic matter of any kind, whether handwritten,typed or printed, whether distributed or undistributed. It shall include without limitation letters, memoranda, articles, studies, notebooks, diaries and notes, as well as all mechanical and electronic sound recordings or transcripts thereof in the possession or control of the defendant or known by it to exist. It shall also mean all copies of documents by whatever means made. Answer each interrogatory in the space following the interrogatory. Supplemental sheets may be attached for answers which require additional space. Please take notice that you are required to serve upon the undersigned your answers in writing within thirty (30) days pursuant to Pennsylvania Rule of Civil Procedure 4006. These Interrogatories are to be deemed continuing and supplemental answers should reasonably be provided. 522831 2 INSTRUCTIONS AND DEFINITIONS The following terms have the designated meanings when used herein: A. The term "identify" shall have the following meanings: (1) When used with respect to a document, the term refers to the provision of the following information: (a) the date of the document; (b) the title of the document: (c) any identifying number on the document; (d) any identifying designation for the document: (e) a description of the document; (f) the subject matter of the document; (g) the name, title, address and telephone number of each person who wrote,signed,prepared,dictated,participated in preparation of, created, initialed or otherwise had any function respecting preparation of the document or review of the document; (h) the name, title, address and telephone number of each addressee on the document, as well as the same for each person receiving a copy of the document; (i) the present location of the document and the name and address of the custodian of the document; (j) if a document is not an original,the location, name and address of the custodian of the original; and (k) any other designation necessary to identify the document for purposes of obtaining a copy thereof. B. The term "documents" when used herein shall mean all written, typed, printed, recorded or graphic matter of every type and description, however and by whomever prepared, produced, reproduced, disseminated or made, in any form, now or formerly in the possession, custody, or control of the party to whom this Request is addressed, its officers, agents, employees and attorneys, or any of them, including but not limited to letters, correspondence, telegrams, memoranda,record,minutes of all types of meetings, contracts, subcontracts, agreements, intra and interoffice communications, purchase orders, requisitions, plans, studies, summaries, analyses, results of investigations, reviews, bulletins, proposals, estimates, appraisals, recommendations, critiques, trip reports, engineering calculations, bills of material, drawings, sketches, blueprints, charts, indices, notices, diaries, books, desk calendars, appointment books, messages, instructions, work assignments, notes, notebooks, tape recordings, partial or complete reports of telephone conversations, photographs, slides, public statements, newspaper or other media releases, public and governmental filings, opinions, and any other writings, drawings or recordings. If any document was,but is no longer, in the possession of the party to whom this Request is addressed or subject to such party's control,please identify the document. C. When used herein, the term "person" shall mean any individual, partnership,joint venture, firm, association, corporation or business or any governmental or legal entity. D. When used herein, the term "communication" shall mean any and all transmissions of information, the information transmitted, the process by which the information is transmitted and the term shall expressly be inclusive of all written and oral communications. 509293 2 E. When used herein, the term "relate to," "relating to" or "in relation to" shall mean constituting, reflecting, representing, supporting, contradicting, referring to, stating, describing, recording, noting, embodying, containing, mentioning, studying, analyzing, discussing, evaluating or relevant to. As indicated, the term necessarily includes information which is in opposition to as well as in support of the position(s) and claim(s)of the party to whom the Request is addressed. F. When used herein, the term "reflect" shall mean embody, contain, record, note, refer to,relate to, describe,be relevant to, state or mention. GENERAL INSTRUCTIONS In construing these interrogatories, A. The singular shall include the plural, and the plural shall include the singular. B. A masculine, feminine or neutral pronoun shall not exclude the other genders. C. The use of any tense of any verb shall be considered to also include within its meaning all other tenses of the verb so used. D. This Request shall be deemed to be continuing. If, between the time of your answers and the time of trial of this case, you or anyone acting on your behalf, learn of any further information not contained in your answers, you shall promptly furnish the additional information by supplemental answers. 509293 3 INTERROGATORIES 1. Please identify each and every communication you had (including those made by and through your counsel) with Plaintiff, Plaintiffs counsel, or any third party regarding the following: (a) your willingness to pay for and/or perform remediation; (b) the scope of remediation which you represented you were willing to pay and/or perform; (c) the remediation efforts which were actually undertaken by you and/or at your expense; (d) the remediation efforts contemplated or discussed by you, but which were not ultimately undertaken by you or paid for by you; (e) your termination of remediation efforts and the reason(s)therefor; (f) any terms and conditions you established with Plaintiff regarding remediation procedures; and (g) Plaintiff s assent to any of the foregoing communications. 509293 4 Respectfully submitted, ANGINO &ROVNER, P.C. /6A Richard C. Angmo, e I.D.No. 07140 Daryl E. Christop r, Esquire I.D.No. 91895 Kristen N. Sini i, Es uire I.D.No. 31138 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 rca @angino-rovner.com r Attorneys for Plaintiff Date: April b-, 2013 509293 5 CERTIFICATE OF SERVICE I, Angela D. Horchler, an employee of Angino & Rovner, P.C. hereby certify that a true and correct copy of the foregoing PLAINTIFF'S INTERROGATORIES (SET III) PROPOUNDED UPON ALL DEFENDANTS was served by United States first-class mail, postage prepaid, upon the following: Adam L. Seiferth, Esquire Cipriani &Werner 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 gela D. Horchler Dated: April l�, 2013 522831 6 ,t v ANGINO&ROVNER,P.C. Richard C.Angino,Esquire Attorney ID#: 07140 Daryl E.Christopher,Esquire Attorney ID#: 91895 4503 North Front Street Harrisburg,PA 17110-1708 (717)238-6791 FAX(717)238-5610 E-mails:rca @angino-rovner.com dchristopher @angino-rovner.com Attorneys for Plaintiffs PAULA R. RISSER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA V. NO. 12-4043 CIVIL PENNSYLVANIA BASEMENT WATERPROOFING, INC., JAMES WILLIAMS d/b/a J.S. WILLIAMS AND CIVIL ACTION - LAW SON, JAMES S. WILLIAMS, DERECK S. WILLIAMS, and FREDERICK MUTUAL INSURANCE COMPANY, Defendants JURY TRIAL DEMANDED PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS (SET III) PROPOUNDED UPON ALL DEFENDANTS TO: Pennsylvania Basement Waterproofing,Inc., James Williams d/b/a J.S. Williams and Son, James S. Williams, Dereck S. Williams,and Frederick Mutual Insurance Company c/o Adam L. Seiferth, Esquire Cipriani& Werner 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 PLEASE TAKE NOTICE that pursuant to Pa.R.C.P. Nos. 4003.4 and 4009 and/or F.R.C.P. No. 34, please furnish at our expense, at our office, on or before thirty(30)days of service hereof, a photostatic copy or like reproduction of the materials concerning this action or its subject matter 522832 1 which are in your possession, custody or control and which are not protected by the attorney/client privilege; or, in the alternative,produce the said matter at said time to permit inspection and copying thereof. PA. R.C.P . 4009.12(b)(2) AND 4009.12(d) APPLY TO THESE REQUESTS. IF YOU OBJECT TO THE SCOPE OF ANY REQUEST, YOU MUST PROVIDE A LIST OF ALL DOCUMENTS WHICH YOU HAVE NOT PRODUCED WHICH FALL WITHIN THE REQUEST AS IT IS PHRASED. YOU MUST ALSO PRODUCE THE LIST OF ANY DOCUMENTS WITHHELD DUE TO YOUR CONSTRUCTION OF THESE REQUESTS AS SET FORTH IN 4009.12(d). FAILURE TO COMPLY WITH PROVISION OF 4009.12(b)(2) and 4009.12(d) WILL RESULT IN THE FILING OF A MOTION TO COMPEL AND MOTION FOR SANCTIONS. Respectfully submitted, ANGINO &ROVNER, P.C. OPP, Richard C. g' o, Esquire I.D.No. 07140 Kristen N. Sinisi Es.wire I.D.No. 311381 4503 N. Front eet Harrisburg, A 17110 (717) 238- 9 ' Date: April , 2013 Attorneys or laintiff 522832 2 INSTRUCTIONS AND DEFINITIONS The following terms have the designated meanings when used herein: A. The term "identify" shall have the following meanings: (1) When used with respect to a document, the term refers to the provision of the following information: (a) the date of the document; (b) the title of the document: (c) any identifying number on the document; (d) any identifying designation for the document: (e) a description of the document; (f) the subject matter of the document; (g) the name, title, address and telephone number of each person who wrote, signed,prepared, dictated,participated in preparation of, created, initialed or otherwise had any function respecting preparation of the document or review of the document; (h) the name, title, address and telephone number of each addressee on the document, as well as the same for each person receiving a copy of the document; (i) the present location of the document and the name and address of the custodian of the document; (j) if a document is not an original,the location, name and address of the custodian of the original; and (k) any other designation necessary to identify the document for purposes of obtaining a copy thereof. B. The term "documents" when used herein shall mean all written, typed, printed, recorded, graphic, and/or video matter of every type and description, however and by whomever prepared, produced, reproduced, disseminated or made, in any form, now or formerly in the possession, custody, or control of the parry to whom this Request is addressed, its officers, agents, employees and attorneys, or any of them, including but not limited to letters, correspondence, telegrams, memoranda, records, minutes of all types of meetings, contracts, subcontracts, agreements, infra and interoffice communications, purchase orders, requisitions, plans, studies, summaries, analyses, results of investigations, reviews, bulletins, proposals, estimates, appraisals, 522832 3 recommendations, critiques, trip reports, engineering calculations, bills of material, drawings, sketches, blueprints, charts, indices, notices, diaries, books, desk calendars, appointment books, messages, instructions, work assignments, notes, notebooks, tape recordings, videos, partial or complete reports of telephone conversations, photographs, slides, public statements, newspaper or other media releases, public and governmental filings, opinions, and any other writings, drawings or recordings. If any document was, but is no longer, in the possession of the parry to whom this Request is addressed or subject to such party's control,please identify the document. C. When used herein, the term "person" shall mean any individual, partnership,joint venture, firm,association, corporation or business or any governmental or legal entity. D. When used herein, the term "communication" shall mean any and all transmissions of information, the information transmitted, the process by which the information is transmitted and the term shall expressly be inclusive of all written and oral communications. E. When used herein, the term "relate to," "relating to" or "in relation to" shall mean constituting, reflecting, representing, supporting, contradicting, referring to, stating, describing, recording, noting, embodying, containing, mentioning, studying, analyzing, discussing, evaluating or relevant to. As indicated, the term necessarily includes information which is in opposition to as well as in support of the position(s) and claims)of the party to whom the Request is addressed. F. When used herein, the term "reflect" shall mean embody, contain, record, note, refer to,relate to,describe,be relevant to, state or mention. 522832 4 � C 1 J GENERAL INSTRUCTIONS A. Whenever a request for documents is framed in the conjunctive, it shall also be taken in the disjunctive, and vice versa. B. Whenever a request for documents is framed in the singular, it shall be taken in the plural, and vice versa. C. The use of any tense of any verb shall be considered to also include within its meaning all other tenses of the verb so used. D. All documents produced shall be segregated and identified by the paragraphs to which they are primarily responsive. Where required by a particular paragraph of this Request, documents produced shall be further segregated and identified as indicated in that paragraph. For any documents which are stored or maintained in files in the normal course of business, such documents shall be produced in such files, or in such a manner as to preserve and identify the file from which such documents were taken. E. If you object to the production of any document on the grounds that the attorney- client, attorney work product or any other privilege is applicable thereto, you shall, with respect to that document: (1) state its date; (2) identify its author; (3) identify each person who prepared or participated in the preparation of the document; (4) identify each person who received it; (5) identify each person from whom the document was received; (6) state the present location of the document and all copies thereof; (7) identify each person who has ever had possession, custody or control of it or a copy thereof, and (8) provide sufficient information concerning the document and the circumstances thereof to explain the claim of privilege and permit the adjudication of the propriety of that claim. 522832 5 F. All documents produced in response to this Request shall be produced in toto notwithstanding the fact that portions thereof may contain information not requested, shall include interim as well as final editions of a document, and shall include all editions or copies of a document which are not identical to, whether due to handwritten notations,revisions or otherwise, the original or other produced copy of a document. G. This Request shall be deemed to be continuing. If, between the time of your answers and the time of trial of this case, you or anyone acting on your behalf, learn of any further information not contained in your answers, you shall promptly furnish the additional information by supplemental answers. REQUESTS 1. Any document directly or indirectly containing information relating to Plaintiff's Interrogatory#1 in her Third Set of Interrogatories. 522832 6 ,4 CERTIFICATE OF SERVICE I, Angela D. Horchler, an employee of Angino & Rovner, P.C. hereby certify that a true and correct copy of the foregoing PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS (SET III) PROPOUNDED UPON ALL DEFENDANTS was served by United States first-class mail,postage prepaid, upon the following: Adam L. Seiferth, Esquire Cipriani & Werner 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 Angela D. Horchler Dated: April �5, 2013 522832 7 s ANGINO&ROVNER,P.C. Richard C.Angino,Esquire Attorney ID# : 07140 Daryl E.Christopher,Esquire Attorney ID#: 91895 4503 North Front Street Harrisburg,PA 17110-1708 (717)238-6791 FAX(717)238-5610 E-mails:rca @angino-rovner.com dchristopher @angino-rovner.com Attorneys for Plaintiffs PAULA R. RISSER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA V. NO. 12-4043 CIVIL PENNSYLVANIA BASEMENT WATERPROOFING, INC., JAMES WILLIAMS d/b/a J.S. WILLIAMS AND CIVIL ACTION -LAW SON, JAMES S. WILLIAMS, DERECK S. WILLIAMS,and FREDERICK MUTUAL INSURANCE COMPANY, Defendants JURY TRIAL DEMANDED PLAINTIFF'S REQUEST FOR ADMISSIONS TO DEFENDANTS To: Defendants,by and through counsel Adam L. Seiferth, Esquire Cipriani&Werner 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 Please take notice that you are hereby required, pursuant to Rule 4014 of the Pennsylvania Rules of Civil Procedure and Local Rule 4005-1, to serve upon the undersigned within thirty (30) days from service,your response to the admission(s)requested herein: 522838 G 1. At no time prior to performing the subject waterproofing services did Defendants or their agents identify or recognize any oil leakage in Plaintiff's basement. Admit Deny 2. During performance of the subject waterproofing services, Defendants and/or their agents were jackhammering and/or otherwise drilling in the area of the basement where oil leakage was subsequently detected. Admit Deny 3. After jackhammering and/or otherwise drilling around the perimeter of Plaintiffs basement, Defendants and/or their agents poured concrete in the areas that were drilled without reporting oil leakage or a compromised fuel oil line to Plaintiff. Admit Deny 4. If Defendants and/or their agents had impacted an underground fuel oil line during the performance of waterproofing activities, they would have recognized the leakage almost immediately. Admit Deny 5. Defendants wanted to learn of the extent of Plaintiffs damages and therefore, offered to remediate Plaintiff s property. Admit Deny 6. Defendants, by and through their attorney, promised Plaintiff that they would complete Act 2 remediation of Plaintiff s property and pay for the same. See Email from Attorney Seiferth to Angela Horchler et al., "RE: Risser v. Pa Basement Waterproofing" (Feb. 23, 2011) (attached hereto as"Exhibit A"). Admit Deny 7. Defendants expected their promise to induce Plaintiff s reliance. Admit Deny 522838 8. Defendants' promise did,in fact,induce Plaintiff's reliance. Admit Deny 9. In remediating Plaintiffs property, Defendants and/or their agents put the Pennsylvania Department of Environmental Protection(PADEP)on notice of potential groundwater contamination. Admit Deny 10. Where potential groundwater contamination exists, the PADEP requires more intensive remediation efforts than it otherwise does. Admit Deny 11. Defendants' and/or their agents' offer to remediate was contingent upon the fact that Plaintiff permit an agent selected by Defendants to perform the remediation. See Email from Attorney Seiferth to Attorney Sinisi, "Risser v. PA Basement," (Feb. 13, 2012) (attached hereto as "Exhibit B"). Admit Deny 12. During their remediation efforts, Defendants and/or their agents disposed of soil which had been removed from Plaintiff s property without advising Plaintiff of their intent to do the same. Admit Deny 13. That soil has been discarded and is no longer available for Plaintiff's inspection. Admit Deny 14. The extent of Plaintiff's damages, as revealed by the remediation process,were more extensive than Defendants and/or their agents anticipated. Admit Deny 522838 15. Upon learning of the extent of Plaintiff's damages, Defendants and/or their agents terminated their remediation efforts. Admit Deny 16. Defendants and/or their agents terminated their remediation efforts because they did not realize the extent of effort and money Act 2 remediation would require. Admit Deny 17. As of the date of these Answers, Defendants have no intention of completing Act 2 remediation with regard to Plaintiff's property. Admit Deny 522838 Respectfully submitted, ANGINO &ROVNER, P.C. Richard.C. ngino, E re I.D.No. 07140 Kristen N. Sinisi, Esquire I.D. No. 311381 4503 N. Front Street Harrisburg, PA 17110 Phone: (717) 238-6791 j. Fax: (717) 238-5610 I Attorneys for Plaintiff Date: April , 2013 522838 Exhibit A r n Kristen Sinisi From: Adam Seiferth <aseiferth @c-wlaw.com> Sent: Thursday, February 23, 2012 3:09 PM To: Angie Horchler;jgiurintano @tthlaw.com; Kristen Sinisi Cc: Mary Henry Subject: RE: Risser v. Pa Basement Waterproofing As Mr. Giurintano referenced, I am now representing PA Basement and 1S Williams&Son. As Mr.Angino is apparently not aware, we have engaged an independent contractor to proceeding with the remediation work and to address DEP's Act 2 compliance, without admission of liability, and will voluntarily pay for the same. Soil sampling will be completed this Tuesday, February 23,2012. If this is now unacceptable, please advise immediately. Regarding the remaining issues below, please see my letter dated February 14, 2012, and I will await your client's responses to the discovery served on that date. If there are any questions or concerns, please contact me by phone. Adam L. Seiferth, Esquire CIPRIANI & WERNER, P.C. 1011 MUMMA ROAD,SUITE 201,LEMOYNE,PA 17043 P:717-975-9600 C:717-756-2161 F:717-975-3846 PENNSYLVANIA - NEW JERSEY - WEST VIRGINIA From: Angie Horchler[mailto:ahorchler @angino-rovner.com] Sent:Thursday, February 23, 2012 2:42 PM To: Adam Seiferth;jgiurintano @tthlaw.com Subject: Risser v. Pa Basement Waterproofing *This email was dictated and approved by Richard Angino. Mr.Seiferth and Mr. Giurintano: This afternoon you are having the Risser property tested. I look forward to the results of the tests. Despite the results of the test, our demand will still be$100,000. Mrs. Risser, her husband, and her child have been subjected to the fumes from your clients' reckless conduct and will continue to be exposed to fumes until you are authorized to pay for the remedial work required. The Rissers do not have the financial wherewithal to engage someone to perform the remedial work. It is in your client's best interest to authorize payment for the remedial work. You will be given credit toward the eventual jury verdict. If your clients are unwilling to authorize the remedial work,we will bring that matter to the attention of the jury and the jury will be able to evaluate the claim as to your clients reckless and outrageous conduct in not only causing the harm,failing to notify the Rissers as to what has been done,and now refusing to voluntarily pay for the remedial work. This case has multiple components in evaluating the damages: 1. not only negligence but reckless and outrageous conduct with punitive damages. 2. The cost of the remedial work. 3. Pain and suffering, inconvenience, and concern with respect to the toxic fumes; and 4. depreciation of value of the property even after remedial work has been performed. Our demand for$100,000 will satisfy all of those damages if paid within 30 days. If$100,000 is not paid within thirty (30)days,your clients will still have an opportunity to pay for the remedial work and obtain a credit on the future jury verdict. If your clients do not pay for the remedial work,our offer of$100,000 to settle will be withdrawn after 30 days and we will go to trial. Richard C.Angina Richard C. Angino,Esquire Angino &Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 rca@angino-rovner.com 2 Exhibit B 1 A Kristen Sinisi From: Adam Seiferth <aseiferth @c-wlaw.com> Sent: Monday, February 13, 2012 3:24 PM To: Kristen Sinisi Cc: Mary Henry Subject: Risser v. PA Basement Follow Up Flag: Follow up Flag Status: Flagged Kristen, Per my voice message, please give me a call to discuss this matter. My carrier has agreed to pay for the initial sampling to be performed by a company I have selected. It is not the same company who initially inspected the home. My contact person will need to briefly inspect the site prior to proceeding with the sampling, and is available to do that this week, except Wednesday. We can then schedule the sampling. Once the sampling is completed, we will get an estimate for the Act 2 remediation compliance and go from there. If your client is agreeable to proceeding in this fashion, please let me know and advise when we could stop by the home to do the initial inspection. Adam L. Seiferth, Esquire CIPRIANI & WERNER, P.C. 1011 MUMMA ROAD,SUITE 201,LEMOYNE,PA 17043 P:717-975-9600 C:717-756-2161 F:717-975-3846 PENNSYLVANIA - NEW JERSEY - WEST VIRGINIA 1 CERTIFICATE OF SERVICE I, Angela D. Horchler, an employee of Angino & Rovner, P.C. hereby certify that a true and correct copy of the foregoing PLAINTIFF'S REQUEST FOR ADMISSIONS TO DEFENDANTS was served by United States first-class mail, postage prepaid, upon the following: Adam L. Seiferth, Esquire Cipriani & Werner 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 ela . Horchler Dated: April ��, 2013 E, 522838 VERIFICATION I hereby affirm that the following facts are correct: I am counsel for the Defendants in the foregoing action, and I am authorized to make this verification on behalf of the Defendants. I have read the attached Motion for Protective Order and verify that the information contained therein is true and correct to the best of my knowledge, information and belief. This verification is made by me instead of Defendant since the facts stated in the Motion for Protective Order are better known to me. I hereby acknowledge that the facts set forth in the aforesaid Motion for Protective Order are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Date: DAM L. SEIFERTH, S 19-6giKE Counsel for the Defendan < w CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing MOTION FOR PROTECTIVE ORDER REGARDING PLAINTIFF'S SUBPOENA TO ATTEND AND TESTIFY DIRECTED TO DEFENDANTS' COUNSEL, has been duly served upon all counsel of record and parties of interest by depositing the same in the United States mail, first class, pursuant to the Pennsylvania Rules of Civil Procedure, on this / day of 2013, addressed as follows: Richard C. Angino, Esquire Angino &Rovner,P.C. 4503 North Front Street Harrisburg, PA 17110-1708 (Counsel for Plaintiff) CIPRIANI& WERNER, P.C. BY: ADAM L. SEIFERT , ES I Counsel for Defendants C j D f1i"Dp,.°(?TA R 11,1i ' -7 N ��; 2 DUNBERL.A t4D Co E��-VSYLVAt4j ,"QTY ANGIND&ROVNER,P.C. Richard C.Arigino,Esquire Attorney ID#: 07140 Daryl.E.Christopher,Esquire Attorney ID#: 91895 4503 North Front Street Harrisburg,PA 17110-1708 (717)238-6791 FAX(717)238-5610 E-mails:rca @angino•rovner.com dchristopher @angino-rovner.com Attorneys for Plaintiffs PAULA R. RISSER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA V. NO. 12-4043 CIVIL PENNSYLVANIA BASEMENT WATERPROOFING, INC., JAMES WILLIAMS d/b/a J.S,WILLIAMS AND CIVIL ACTION - LAW SON, JAMES S. WILLIAMS, DERECK S. WILLIAMS, and FREDERICK MUTUAL INSURANCE COMPANY, Defendants JURY TRIAL DEMANDED PLAIN'TIFF'S.RESPONSE TO DEFENDANTS'.MOTION FOk PROTECTIVE_ORDER REGARDING PLAINTIFF'S SUBPOENA T.O ATTEND AND.TESTIFY DIRECTED TO DEFENDANTS' COUNSEL AND NOW, comes Plaintiff, Paula R. Risser, by and through her attorneys, Angino & Rovner, P.C., and states by way of response, the following: 1. Admitted. 2. Admitted. 3. Admitted. By way of further"response, it is averred that Plaintiff comnicenced the present action by filing a Complaint against the Defendants on or about June 27, 2012. 524880 2 4. Admitted in part, denied in part. It is admitted that in her Complaint, Plaintiff alleges that Defendants, in the course of performing waterproofing services, severed a fuel oil line embedded in a concrete slab in Plaintiff's basement. It is further admitted that after disposition of Defendants' Preliminary Objections, Plaintiff's claims against Defendants were limited to negligence and promissory estoppel. By way of further response, Plaintiff's claim for punitive damages remains. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted in part, denied in part. It is admitted that in response to the aforementioned emails, Defendants' counsel advised Plaintiff's counsel's office of his opinion that I it would be inappropriate I and unnecessary to provide deposition testimony and invited Plaintiff's counsel to either discuss the issue with him or seek court intervention. To the extent this paragraph suggests that it is,I in fact; inappropriate or unnecessary to depose defense counsel in the instant case, the same is I strictly denied. By way of further response, Defense counsel's communications with Plaintiff's counsel are directly relevant to Plaintiff's promissory estoppel claim. Since Defendants are represented by counsel, all promises they made were conveyed to Plaintiff through defense counsel. Therefore,his communications with Plaintiff's counsel are the sole evidence upon which Plaintiff bases her promissory estoppel claim. 9. Admitted. By way of further response, Plaintiff's counsel attempted to schedule the deposition with the consent of defense counsel, but he was unwilling to provide his dates of availability given his position that it would be improper to take his deposition. Therefore, Plaintiff had no choice but to unilaterally schedule the depositioon. 524880 3 10. Admitted in part, denied in part. It is admitted that Plaintiffs counsel intends to question Defendants' counsel regarding his communications with Plaintiff's counsel. Attorney Seiferth's communications with Plaintiff's counsel are directly relevant to Plaintiff's promissory estoppel claim. Since Defendants are represented by counsel, all promises they made were conveyed to Plaintiff through defense counsel. Therefore, his communications with Plaintiff's counsel are the sole evidence upon which Plaintiff bases her promissory estoppel claim. To the extent this Paragraph implies that Plaintiff attempts to depose defense counsel with regard to protected attorney-client communications, work product, or as a fact witness as to any issue other than the above, it is strictly denied. 11. Admitted. 12. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact,they are specifically denied. 13. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, they are specifically denied. a. Denied. It is specifically denied that Plaintiff's counsel seeks information protected by the work-product doctrine or the attorney-client privilege, or any other protection. By way of further response, Plaintiff does not seek information regarding any of defense counsel's communications with his client. Rather, Plaintiff seeks information regarding defense counsel's communications with Plaintiff's counsel. Certainly, such communications are not protected under the law. The substance of what defense counsel said to Plaintiff's counsel on his client's behalf is wholly relevant and necessary to Plaintiff's promissory estoppel claim, Plaintiff cannot establish promissory estoppel if she cannot prove the content of Defendants' communications to her. 524880 4 b. Denied. It is specifically denied that Plaintiff's counsel seeks information regarding defense counsel's mental impressions, conclusions, opinions, or the legal advice offered to his clients in this matter: By way of further response, Plaintiff does not seek information regarding any of defense counsel's communications with his client. Rather, Plaintiff seeks information,regarding defense counsel's communications with Plaintiff's counsel. Certainly, such communications are not protected under the law. The substance of what defense counsel said to Plaintiffs counsel on his client's behalf is wholly relevant and necessary to Plaintiff's promissory estoppel claim. Plaintiff cannot establish promissory estoppel if she cannot prove the content of Defendants' communications to her. c. Denied. It is specifically' denied that the deposition of defense counsel will seek irrelevant information. By way of further response, Plaintiff seeks information regarding defense counsel's communications with Plaintiff's counsel. Certainly, such communications are not protected under the law. The substance of what defense,counsel said to Plaintiff's counsel on his client's behalf is wholly relevant and necessary to Plaintiffs promissory estoppel claim. Plaintiff cannot establish promissory estoppel if she cannot prove the content of Defendants' communications to her. See Thatcher's Drug Store of W. Goshen Inc. v..Consol. Supermkts. Inc., 535 Pa. 469, 476, 636 A.2d 156, 160 (1994) (explaining that one of the elements of promissory estoppel is that a promisor made a promise that he should have reasonably expected would induce action or forebearance on the part of the promsssee). The evidence Plaintiff seeks from the deposition is evidence of Defendants' promise. 524880 5 Although Defendants apparently contend that the promise they made was a settlement offer, Plaintiff has sufficiently pled her promissory estoppel case. Therefore, she must be permitted to gather discovery with regard to the same. Defendants' attempt to reargue their preliminary objections by recasting the promissory estoppel claim as a settlement offer does not preclude Plaintiff from conducting discovery. d. .Admitted. It is admitted that Plaintiff is in possession of written communications from Defendants' counsel conveying the promises Defendants made. However, counsel's discussions were not limited to written correspondence. Numerous communications occurred orally, in person, over the telephone, and through voice messages. See, e.g., Compl. ' T 45, 51, 65, 68, 69, 70, 73. Further, Plaintiff's Complaint does not allege each and every oral communication that occurred between counsel regarding this issue. A plaintiff has no duty to plead evidence in her Complaint. Lumax Indus. v. Aultman, 543 Pa. 38, 669 A.2d 893 (1995); Commonwealth, Dept of Transp. v. Bethlehem Steel Corn., 33 Pa. Commw. 1, 380 A.2d 1308 (1977). e. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, they are specifically denied. As support for Defendants' argument that defense counsel should not be deposed, they cite a case from the Court of Common Pleas of Dauphin County, i Cooke v. Outdoor World Corp., 29 Pa, D&C.41" 572 (1995). That case is markedly distinguishable from the instant case. Cooke was a class-action lawsuit in which defendants sought to depose the claimants' attorney to obtain information regarding his qualifications and ability to represent the proposed class. In the instant case, Plaintiff seeks to depose defense counsel as a fact witness. The substance of Defense counsel's 524880 6 — } � "fit � . .#r s� .•r3 , .communications to Plaintiff's counsel ate ,directly relevant to Plaintiff s promissory estoppel claim. As such, they are discoverable by any or all methods.provided under the Pennsylvania Rules of Civil Procedure. Pa.R.C.P. 4001(d). 14. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, they are specifically denied. By way of further response, Plaintiff is not,limited to seeking information from a.fact,witness via one or two methods of discovery. She is permitted to use all methods of discovery provided for under the 'applicable rules. Pa.R.C.P. 4001(d). Furthermore, even if Your Honorable Court does not permit Plaintiff to depose defense counsel, Plaintiff may have to call him as a fact witness at trial to discuss the substance of his conversations with Plaintiff's counsel and/or to authenticate `any written communications he had. Plaintiff cannot merely read to the jury defense counsel's discovery responses. As such, it is only logical that his deposition should also be permitted. 15. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, they are specifically denied.. By way of further response, if Attorney Seiferth is called as a fact witness at trial, another defense, attorney will heed to prepare and defend the case, regardless of whether he is deposed. Plaintiff does not dispute that this may require disqualification of Defendants' current counsel as per the Pennsylvania Rules of Professional Conduct. However, if as Defendants contend, such an arrangement would result in substantial hardship; then defense counsel need not disqualify himself. See Pa. R. Prof I Cond. 3.7(a)(3) ("A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: . . . disqualification of the lawyer would work substantial hardship on the client."). 524880 7 16. Admitted in part, denied in part. It is admitted that should Attorney Seiferth's deposition be taken, then the deposition of Kristen Sinisi, Esquire, with whom Attorney Seiferth communicated, may also need to be taken. It is denied that this situation will result in the disqualification of both Defendants' and Plaintiff's counsel. If, as Defendants state, such an arrangement would result in substantial hardship, then defense counsel need not disqualify himself. See Pa. R. Prof 1 Cond. 3.7(a)(3). By way of further response, Richard C. Angino, Esquire will be trying the case for Plaintiff. Therefore, even if Attorney Sinisi is deposed and must disqualify herself, Plaintiff will still have appropriate representation at trial. 17. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, they are specifically denied. By way of further response, it is strictly denied that defense counsel's deposition is sought in bad faith. a. Denied. Plaintiffs promissory estoppel claim survived Defendants' preliminary objections. Plaintiff now seeks to conduct discovery with regard to that claim and in connection therewith, seeks to depose defense counsel. Until Plaintiff has had the opportunity to conduct discovery on this issue, Plaintiff cannot be expected to put forth evidence proving the elements of promissory estoppel. Defendants' argument that Plaintiff "has failed to come forward with any evidence" of her reliance or of her damages may be an appropriate argument for summary judgment but is not an appropriate argument at the discovery stage of this litigation. Certainly, the fact that Plaintiff has not offered Defendants evidence of her reliance or damages does not demonstrate that she seeks the instant discovery in bad faith. 524880 8 b. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, they are specifically denied. By way of further response, Defendants' preliminary objections to Plaintiff's promissory estoppel claim were denied. Defendants' argument that their promise was actually a settlement offer does not bar Plaintiff from seeking discovery on the issue. This is an issue of fact, which ultimately, the jury must determine. Therefore, Plaintiff must be permitted to collect discovery with regard to the same. C. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, they are specifically denied. By way of further response, whether the fuel-oil. line was impacted is an issue of fact for the jury to determine. Furthermore, Defendants' negligence is a separate matter from the promissory estoppel claim. Whether Defendants impacted Plaintiff's fuel-oil line has little relevance with regard to whether Defendants promised to remediate Plaintiff's property, and thus, has no bearing upon whether it is proper to take defense counsel's deposition with regard to the promissory estoppel claim. d. Admitted in part, denied in part. It is admitted that Plaintiff does have possession of the written communications her counsel had with defense counsel. However, this does not asssist Plaintiff with regard to the oral communications counsel had. Furthermore, there are questions of interpretation as to the communications. Plaintiff's counsel can only offer her opinion as to what she believed defense counsel to intend by certain communications. It is defense counsel who must explain, from his perspective, what his intent was, or how he believes his communications are properly interpreted. These communications are the crux of Plaintiffs promissory estoppel claim. 52.4880 9 S As such, even if defense counsel is not deposed, he will likely be called as a witness at trial. e. Admitted in part, denied in part. Plaintiff's counsel attempted to confer with defense counsel in scheduling his deposition. However, he refused to advise Plaintiff s counsel of his availability, apparently due to this belief that.his deposition would be improper. Therefore, Plaintiff had,no choice but to unilaterally schedule his deposition. 18. Plaintiff is not opposed to staying Attorney Seiferth's deposition pending the decision of Your Honorable Court. Upon receiving the instant motion, Plaintiffs counsel advised Defendants' counsel of the same. However, if the deposition is permitted and cannot be rescheduled until after expiration'of the fact-discovery deadline on June 17, 2013, Plaintiff would request an extension for taking of the same. 19, Admitted. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny Defendants' request for a Protective Order and thereby allow Plaintiffs counsel to depose Attorney Seiferth with regard to Plaintiff's promissory estoppel claim. I I 524880 10 Respectfully submitted, ANGINO & ROVNER, P.C. Ric ha d C. Angin ,, squire I.D. No. 07140 Daryl E. Christoph r, Esquire I.D. No. 91895 Kristen N. S/inisi squire I.D. No. 31 A38 4503 N. Fro,t Street Harrisburg, PA 17110 (717) 238-6791 rca @angino-rovner.com Attorneys for Plaintiff Date: May 2013 524880 1 1 CERTIFICATE 0F:,SERVICE 1, Angela D. Horchler, an employee of Angino & Rovner, P.C., hereby certify that a true and correct copy of the foregoing PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR PROTECTIVE ORDER REGARDING PLAINTIFF'S SUBPOENA TO ATTEND AND TESTIFY DIRECTED TO DEFENDANTS' COUNSEL was served by United States first-class mail,postage prepaid,upon the following: Adam L. Seiferth, Esquire Cipriani & Werner 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 j. ge a D. orchler Dated: May 2013 524880 12 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PAULA R. RISSER, ) CASE NO: 12-4043 Plaintiff ) V. ) PENNSYLVANIA BASEMENT ) WATERPROOFING, INC., JAMES ) WILLIAMS d/b/a J.S. WILLIAMS AND ) SONS, JAMES S. WILLIAMS, DERECK S. ) WILLIAMS', and FREDERICK MUTUAL ) INSURANCE COMPANY, ) Defendants ) JURY TRIAL DEMANDED ORDER AND NOW, this -6 day of G � 2013,' Lzpcli consideration of the Defendants' Motion for Protective Order, it is hereby ordered as follcvvs: (1) A rule is issued upon Plaintiff to show cause why a protective order should not be entered precluding the depositions of Defendants' counsel; (2) Plaintiff shall file an Answer to the Motion within a days of the date of this Order; (3) Argument shall be held on day of 2013 at a.m./ 1. in Courtroom No. of the Clunberlaud County Courthouse; and, V_ (4) Pursuant to Pa.R.C.P. 4013, the deposition of Defendants' counsel shall be stayed pending the disposition of Defendants' Motion for Protective Order. BY CO U T: J --- Distribution: c w. Richard C.Angino,Esquire rn Angino&Rovner,P.C. — P 4503 North Front Street Harrisburg,PA 17110-1708 .cam Adam L. Seiferth,Esquire CD Cipriani&Werner,P.C. ., 1011 Mumma Road, Suite 201 �+ Lemoyne,PA 17043 � P � • PAULA R. RISSER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. • PENNSYLVANIA BASEMENT • WATERPROOFING, INC. , • JAMES WILLIAMS d/b/a J. S . : WILLIAMS AND SONS, JAMES : S . WILLIAMS, DERECK S. WILLIAMS, and FREDERICK . MUTUAL INSURANCE COMPANY, : Defendants NO. 12-4043 CIVIL TERM IN RE: DEFENDANTS ' MOTION FOR PROTECTIVE ORDER ORDER OF COURT AND NOW, this 28th day of June, 2013, based upon the agreement of Defendants that for purposes of summary judgment only, they are prepared to concede that a promise was made and that any argument on a motion for summary judgment would be based on reliance . With that agreement in place, Defendants ' request for a protective order is granted without prejudice from Plaintiff to revisit this matter after a motion for summary judgment is litigated or is agreed that none will be brought . -p 3 cv By the Court, z �J ; � r7; 41‘; CI)Dn a 'r' D t v Edward E. Guido, J. sten Sinisi, Esquire Angino & Rovner, P. C. 4503 North Front Street Harrisburg, PA 17110-1708 /dam L. Seiferth, Esquire Cipriani & Werner, P. C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 : lfh Copt es r &I lL 7l t3 tof oe3AM11.: 2g 01i; ;I,ANGINO&ROVNER,P.C. CU tBER�,� � ,©� � Richard C.Angino,Esquire Attorney ID#: 07140 PdS y'wANIA. Kristen N.Sinisi,Esquire Attorney ID#: 311381 4503 North Front Street Harrisburg,PA 17110-1708 (717)238-6791 FAX(717)238-5610 E-mails:rca @angino-rovner.com ksinisi @angino-rovner.com Attorneys for Plaintiff PAULA R. RISSER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA v. NO. 12-4043 CIVIL PENNSYLVANIA BASEMENT WATERPROOFING, INC., JAMES WILLIAMS d/b/a J.S. WILLIAMS AND CIVIL ACTION - LAW SON, JAMES S. WILLIAMS, DERECK S. WILLIAMS, and FREDERICK MUTUAL INSURANCE COMPANY, Defendants JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Please mark the above-captioned action as settled, satisfied,and discontinued. ANGINO & ROVNER, P.C. Ri4c(2-b(/(-nd Angino, Esquire I.D. No. 07140 Kristen N. Sinisi, Esquire I.D.No. 311381 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 rca@angino-rovner.com Attorneys for Plaintiff Date: / �''" 5 CERTIFICATE OF SERVICE I, Joan L. Helmuth, an employee of Angino & Rovner, P.C. hereby certify that a true and correct copy of the foregoing PRAECIPE was served by United States first-class mail, postage prepaid, upon the following: Adam L. Seiferth, Esquire Cipriani & Werner 1011 Mumma Road,Suite 201 Lemoyne, PA 17043-1145 Xiebyvtdi Jo L. Helmuth Dated: ! D P�' 13 •