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12-4112
LAW OFFICE OFANDREW H. SHAW, P.C. Andrew H. Shaw, Esquire ID. No. 87371 Andrea L. Shaw, Esquire I.D. No: 89333 200 S. Spring Garden Street, Suite 11 Carlisle, PA 17013 (717) 243-7135 14' JUN 29 Pt1 3 1? ,uMN:RLAND Ut4Tv Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DARRYL K. GUISTWITE and, NO.: 9- y ) NO 1 MICHELLE L. GUISTWITE, husband and wife,: Plaintiffs V. CIVIL ACTION - LAW LEBO'S PLUMBING HEATING & AIR CONDITIONING, INC., Defendant 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. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 cs? 00? ??d f?9S ou?-n 431 LAW OFFICE OFANDREW H. SHAW, P. C. Andrew H. Shaw, Esquire ID. No. 87371 Andrea L. Shaw, Esquire I.D. No: 89333 200 S. Spring Garden Street, Suite 11 Carlisle, PA 17013 (717) 243-7135 Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DARRYL K. GUISTWITE and, MICHELLE L. GUISTWITE, husband and wife,: Plaintiffs V. LEBO'S PLUMBING HEATING & AIR CONDITIONING, INC., Defendant COMPLAINT NO.. CIVIL ACTION - LAW JURY TRIAL DEMANDED AND NOW, this day of 'Le- 2012, come the Plaintiffs, Darryl K. Guistwite and Michelle L. Guistwit:e, by and through their attorneys, Law Office of Andrew H. Shaw, P.C., and file the instant Complaint and in support thereof state as follows: 1. Plaintiffs are adult individuals residing at 56 Ashton Street, Carlisle, Cumberland County, Pennsylvania. 2. Defendant, Lebo's Plumbing Heating & Air Conditioning, Inc. is a Pennsylvania corporation with a registered office address of 62 Chestnut Avenue, Carlisle, Cumberland County, Pennsylvania. 3. Defendant is engaged in the business of plumbing, heating and air conditioning. 4. On or about March. 12, 2004, Defendant provided an estimate of work to Plaintiffs for the installation of radians: floor heating at Plaintiff's residence located at 56 Ashton Street, Carlisle, Cumberland County, Pennsylvania. A. copy of the Estimate is attached hereto incorporated by reference as Exhibit A. 5. Defendant provided said Estimate to Plaintiff:; in connection with the construction of Plaintiffs' new residence. 6. The total estimated cost to install the radiant heating was $35.930.00. See Exhibit A. 7. At all times relevant, Defendant represented to Plaintiffs that it was knowledgeable and capable of properly installing the radiant floor heating system in Plaintiffs' residence. 8. Defendant allegedly installed the radiant floor heating during the remainder of 2004. 9. Plaintiffs moved into the new residence and began using the radiant floor heating on or around January of 2005. 10. Plaintiffs paid a total of $37,884.80 to Defendant for the initial installation of the radiant floor heating. 11. Immediately upon moving into their new residence, Plaintiffs were unable to heat the residence as expected and described by Defendant. 2 12. Plaintiffs contacted Defendant regarding the issues related to the radiant floor heating in an attempt to provide Defendant an opportunity to correct any problems in the system that may have existed. 13. Defendant made multiple attempts to correct the alleged problems with the heating system. 14. During each time that Defendant attempted to correct the alleged problems with the :heating system, Defendant led Plaintiffs to believe the heating system was installed correctly. 15. Defendant continued to charge Plaintiffs for visits and work performed when attempted to correct the problems with the heating system. 16. On or about April 10, 2009, Plaintiffs met with a representative from Uponor, the company through which Plaintiffs purchased the radiant flooring that Defendant installed. 17. It was not until the meeting on April 10, 2009 with the representative from Uponor that Plaintiffs learned that Defendant had improperly installed the radiant floor heating system. 18. Plaintiffs discovered that Defendant had not followed the specifications that were provided by the manufacturer of the radiant floor heating system. 19. Upon discovery of Defendant's failure to properly install the radiant floor heating system, Plaintiffs hired A.C. Rimmer, Inc. to correct the installation of the radiant floor heating system. 20. Since the A.C. Rimmer, Inc., corrected the installation of the radiant floor heating system, Plaintiffs have not experienced any further problems with the heating system. 3 21. The Defendant failed to perform the contract and its duties to the Plaintiffs in a good and workmanlike manner and failed to perform under the terms and conditions agreed. 22. To date Plaintiffs have paid Defendant $ 45,325.53 towards the initial installation and the follow up repairs to the system. 23. Plaintiffs also incurred expenses in the amount of $39,423.24 to correct the installation of the radiant floor heating system. COUNT I- BREACH OF CONTRACT 24. Plaintiffs incorporate herein by reference all avennents of this pleading as if more fully set forth hereinafter. 25. As part of the parties' agreement for the installation of the radiant floor heating system, the Defendant agreed to perform all necessary and relevant work. 26. Defendant failed to adequately perform the necessary and relevant work to install the radiant floor heating system. 27. As a result of Defendants failure to adequately perform all work agreed to by the parties, the Plaintiffs have incurred expenses in hiring other contractor(s) to perform said work. WHEREFORE, because of the Defendant's breach of contract, the Plaintiffs demand judgment against the Defendant in the amount of $45,325.53, together with costs and interest and such other relief as this Honorable Court may deem appropriate under law, said amount being necessary to place Plaintiffs in the position they would have been in had Defendant performed the contract as per the parties' agreement. 4 COUNT II - FRAUD 28. Plaintiffs incorporate herein by reference all averments of this pleading as if more fully set forth hereinafter. 29. The Defendant represented to the Plaintiffs that Defendant would be able to perform the installation of the radiant floor heating system in a good and workmanlike manner and according to standard industry practices including all relevant codes. 30. These representations by Defendant to the Plaintiffs were material to the Plaintiffs' decision to enter into a contract for construction with the Defendant. 31. Defendant's representations to the Plaintiffs were fraudulent in that they were intended to induce the Plaintiffs to enter into an agreement for the installation of the radiant floor heating system and: A. Defendant knew or believed that these assertions were not in accord with the facts; and/or B. Defendant did not have the confidence that he stated or implied in the truth of his assertions; and/or C. Defendant knew that he did not have the basis that he stated or implied in the assertions. 32. Defendant's assertions were made with actual knowledge of their falsity at the time they were made, or with reckless disregard of their falsity. 33. The Plaintiffs justifiably relied on the misrepresentations of Defendant. 34. At or before the date the Defendant entered into the contract for the installation of the radiant floor heating system with the Plaintiffs, Defendant knew or should have known that 5 he would not, or was unable to perform the work under the terms and conditions represented to the Plaintiffs by the Defendant and as explained more fully above. 35. As a result of the misrepresentation of Defendant, and due to Defendant's failure to advise the Plaintiffs otherwise, the Plaintiffs have suffered damages including that the installation of the radiant floor heating system was not completed in a workmanlike manner as agreed, which total costs to cure were $39,423.24. 36. Defendant's actions as stated above are outrageous in nature. WHEREFORE, because of the Defendants' fraudulent representations as stated above, the Plaintiffs respectfully request this Honorable Court to enter judgment in Plaintiffs' favor and against Defendant as follows: 1. In an amount equal to the cost necessary to put Plaintiffs in the position they would have been in had the Defendant performed the contract; 2. Together with costs and interest; 3. Punitive damages; 4. Attorney fees; and 5. Such other relief as this Court may deem appropriate and just under the law. COUNT III - UNFAIR TRADE PRACTICE 40. Plaintiffs incorporate herein by reference all averments of this pleading as if more fully set forth hereinafter. 6 41. Defendant's misrepresentations, or failure to represent, constitute unfair and deceptive acts and/or practices pursuant to the Unfair Trade Practice and Consumer Protection Law (hereinafter "UTPCPL"), 73 P. S. § 201-1 et seq. 42;. Pursuant to Section 201-3 of the UTPCPL, unfair methods of competition and unfair and deceptive acts and practices in trade or commerce is unlawful. 43. The Defendant's misrepresentations as more fully set forth hereinabove at length constitute unfair and deceptive acts and/or practices under the Unfair Trade Practices and Consumer Protection Law ("UTPCPL" ), 73 P. S. §201-1 et sec. 44. Pursuant to Section 201-3 of the UTPCPL, unfair methods of competition and unfair and deceptive acts and practices in trade or commerce are unlawful. 45. Pursuant to the UTPCPL, the Plaintiffs have a private right of action against the Defendant to recover up to three times their actual damages, plus costs and reasonable attorney's fees. 46. As a direct result of the Defendant's unfair and deceptive acts and practices as described more fully herein, the Plaintiffs have suffered damages including the fact that the installation of the radiant floor heating system was not completed in a workmanlike manner which total costs to cure were $39,423.24. WHEREFORE, the Plaintiffs respectfully request this Honorable Court to enter judgment in Plaintiffs' favor and against Defendant as follows: 1. In an amount equal to the cost necessary to put Plaintiffs in the position they would have been in had the Defendant performed the contract; 2. 'Together with costs and interest; 7 3. Treble damages; 4. Attorney fees; and 5. Such other relief as this Court may deem appropriate and just under the law. Dater Respectfully submitted, By: ?,-- Andrew H. Shaw, Esquire Pa. Supreme Ct. I.D. No. 87371 200 S. Spring Garden Street Suite 11 Carlisle, PA. 17013 717-243-7135 Attorney for Plaintiffs 8 VERIFICATION I verify that the statements made in this Answer are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: Date: ?/ i .2 Dar. Guistwite Michelle L. Guistwite LEBO'S P.O. Box 206 Plainfield, PA 17081-0206 Estimate Date Estimate # 3/12/2004 ? 2491 Project Description Heating: This estimate is for Domestic hot water and Radiant Heat. L. & R Associates worked up the budget price for your home. They performed a heat load calculation that netted 77,000 BTU. This job calls for 12,000 feet of 1/2" Pex Plus tubing, misc. fittings, valves, couplers, thermostats, a variable speed injection pump, multiple circulators and 10 radiant thermostats, one hot water unit heater for each garage (they are vertical discharge) one oil fined hot water boiler, one indirect fired water heater and two 275 gallon oil tank packages. As you can see by enclosed quote from wirsbo., the materials for radiant heat are very coslty. I am totally willing to discuss other heat options with you that would lower your heating estimate. Heating Materials & Labor Qty Total Rate 35,930.00 Total !!!!!Think Spring!!!!!!! 35,930.00 $35,930.00 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor PRO7H{) ? F Z 12 JUL 19 AM 45 ' ??St?SYLV??tA ?p Darryl Guistwite (et al.) vs. Lebo's Plumbing Heating & Air Conditioning, Inc. Case Numb, 2012-4112 SHERIFF'S RETURN OF SERVICE 07/05/2012 09:52 AM - Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on July 5, 012 at 0952 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Lebo's Plumbing Heating & Air Conditioning, Inc., by making known unto Tim Lebo, Owner of Lebo's Plumbing Heating & Air Conditioning, Inc. at 62 Chestnut Avenue, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to him personally the said true an( correct copy of the same. _1_57 NOAH CLINE, DEPUTY SHERIFF COST: $34.45 July 09, 2012 RONW R ANDERSON, SHERIFF SO ANSWERS, 6 Y" `s Cj C,CU SJ lFl J? ... ?C i ROTHON9 r r MARCH, HURWITZ & DeMARCO BY: JOSEPH M. DEMARCO, ESQUIRE 2 .112 JUL 20 PM 2: 04 ATTORNEY I.D. NO. 44061 CUMBERLAND COU 1-q 17 WEST THIRD STREET PENNSYLVANIA MEDIA, PA 19063 (610) 565-3950 ghurwitz(?mhdle al. com Attorney for Defendant, LEBO's Plumbing Heating and Air Conditioning IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLV CIVIL ACTION - LAW DARRYL K. GUISTWITE MICHELLE L. GUISTWITE Plaintiffs, V. LEBO's PLUMBING HEATING AND AIR CONDITIONING Defendant. Case No.: 12-4112 JURY TRIAL DEMANDED TO THE PROTHONOTARY; Please enter my appearance for Defendant, LEBO's PLUMBING HEATING AND AIR CONDITIONING. MARCH, HURVy.ITZ k DeMARCO, P.C. BY: JOSEPH . DEMARCO, ESQUIRE Attorney for De endant, LEBO's Plumbing Heating and Air Conditions ri CERTIFICATE OF SERVICE I, JOSEPH M. DEMARCO, ESQUIRE, do hereby certify that on July tl , 2011, I served a true and correct copy of the attached Entry of Appearance to the below-named party via deposit in a sealed envelope into First Class Mail and Email to: ANDREW H. SHAW, ESQUIRE Law Office of Andrew H. Shaw, P.C. 200 S. Spring Garden Street, Suite 11 Carlisle, PA 17013 (717) 243-7135 BY: MARCH, RITZ & DeMARCO, P.C. JOSEPH M. DEMARCp, ESQUIRE Atto for Defendant, LEBO's Pl ing Heating and Air Conditioning a1 MARCH, HURWITZ & DeMARCO BY: JOSEPH M. DEMARCO, ESQUIRE ATTORNEY I.D. NO. 44061 17 WEST THIRD STREET MEDIA, PA 19063 (610) 565-3950 I" PRO t1flr'4R,,, 30p h2:J? UMBERLAND cNr`f PFNNSYLVA 0U ttorney for Defendant, LEBO's Plumbing Heating andAir Conditioning IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLV CIVIL ACTION - LAW DARRYL K. GUISTWITE MICHELLE L. GUISTWITE Plaintiffs, V. LEBO's PLUMBING HEATING AND AIR CONDITIONING Defendant. Case No.: 12-4112 JURY TRIAL DEMANDED NOTICE TO PLEAD TO PLAINTIFF: You are hereby notified to plead to the enclosed Answer with New Matter and Counterclaim within Twenty days (20) of service hereof or a default Judgment may be entered against you. MARCH, HURWIT 7,\- JOSftH ARCO, P.C. BY: M. DEMARCO, ESQUIRE Atto y for Defendant, LEBO's Plumbing Heating and Air Conditioning MARCH, HURWITZ & DeMARCO BY: JOSEPH M. DEMARCO, ESQUIRE ATTORNEY I.D. NO. 44061 17 WEST THIRD STREET MEDIA, PA 19063 (610) 565-3950 Attorney for Defendant, LEBO's Plumbing Heating and Air Conditioning IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLV CIVIL ACTION - LAW DARRYL K. GUISTWITE MICHELLE L. GUISTWITE Plaintiffs, Case No.: 12-4112 V. LEBO's PLUMBING HEATING AND AIR CONDITIONING Defendant. JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND COUNTERCLAIM OF DEFENDANT, LEBO'S PLUMBING HEATING AND AIR CONDITIONING 1. Denied. After reasonable investigation Answering Defendant is information sufficient with which to admit or deny the veracity of the averments of paragraph. Strict proof, if relevant, is demanded at trial. 2. Admitted. 3. Admitted. 4. Denied as stated. It is admitted that on or about March 12, 2004, provided an estimate of work for the installation of a radiant floor heating system to be installe at 56 Ashton Street, Carlisle, and Cumberland County, Pennsylvania. A copy of Exhibit "A was not attached to the complaint served upon Answering Defendant therefore Answerin; Defendant cannot address allegations in this regard. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Denied as stated. It is admitted that the Plaintiffs made complaints to regarding the identified system. It is denied that the Plaintiffs were "unable to heat residence." With respect to the remaining allegations of this paragraph after investigation Answering Defendant is without information sufficient with which to admit or the veracity of the averments of this paragraph. Strict proof, if relevant, is demanded at trial. 12. Denied as stated. It is admitted that the Plaintiffs contacted the regarding issues which the Plaintiffs believed existed with the radiant floor heating system. It admitted that the Defendant visited Plaintiffs premises in an attempt to satisfy the Plaintif With respect to any remaining averments after reasonable investigation Answering Defendant without information sufficient with which to admit or deny the veracity of the averments of tl paragraph. Strict proof, if relevant, is demanded at trial. 13. Denied as stated. It is admitted that the Defendant visited Plaintiffs premises a number of occasions after installation. It is admitted that these visits were attempts to the Plaintiffs. It is denied that there were "problems" with the heating system. 14. Denied as stated. It is denied that there were "problems" with the heating It is admitted that the Defendant on various occasions performed certain work as related to system. Upon information and belief the heating system was installed correctly. 15. Denied as stated. It is denied that there were "problems with the heating system." It is admitted that at various points the Defendant visited Plaintiff's premises and performed additional work. It is admitted that the Defendant charged for certain of its additional work. By way of further response the Plaintiffs have not paid for a significant portion of Defendants work, even though charged for the same. 16. Denied. After reasonable investigation Answering Defendant is witho t information sufficient with which to admit or deny the veracity of the averments of this paragraph. Strict proof, if relevant, is demanded at trial. 17. Denied. It is denied that the Defendant improperly installed the radiant floor heating system. With respect to any remaining factual averments, after reasonable investigation Answering Defendant is without information sufficient with which to admit or deny the veracity of the averments of this paragraph. Strict proof, if relevant, is demanded at trial. 18. Denied. It is denied that the Defendant did not follow specifications that wer provided relating to the radiant floor heating system. With respect to any remaining factuz averments, after reasonable investigation Answering Defendant is without information sufficier with which to admit or deny the veracity of the averments of this paragraph. Strict proof, i relevant, is demanded at trial. 19. Denied. It is denied that the Defendant failed to properly install the radiant floo heating system. With respect to any remaining factual averments, after reasonable investigatioi Answering Defendant is without information sufficient with which to admit or deny the veracit, of the averments of this paragraph. Strict proof, if relevant, is demanded at trial. 20. Denied as stated. It is denied that the radiant floor heating system was installer incorrectly. With respect to any remaining factual averments, after reasonable investiiiatior Answering Defendant is without information sufficient with which to admit or deny the veracity of the averments of this paragraph. Strict proof, if relevant, is demanded at trial. 21. Denied. The averments contained in this paragraph are conclusions of law which no response is required. By way of further response, it is specifically denied that Answering Defendant breached any contract or failed to perform in accordance with any of duties to Plaintiff. It is denied that the Defendant failed to perform its work in a gc workmanlike manner and/or failed to perform under the terms and/or conditions agreed. 22. Admitted. 23. Denied. It is denied that the radiant floor heating system was i incorrectly. With respect to any remaining factual averments after reasonable Answering Defendant is without information sufficient with which to admit or deny the veraci of the averments of this paragraph. Strict proof, if relevant, is demanded at trial. 24. Denied. Answering Defendant incorporates herein by reference as though set forth at length the averments contained elsewhere in this Answer with New Matter. 25. Denied. The averments in this paragraph are conclusions of law to which response is required. 26. Denied. It is specifically denied that Answering Defendant failed to perform necessary and relevant work to install the radiant floor heating system. 27. Denied. It is denied that answering Defendant's failed to adequately perform work agreed to by the parties. With respect to any remaining factual averments, after investigation Answering Defendant is without information sufficient with which to admit or the veracity of the averments of this paragraph. Strict proof, if relevant, is demanded at trial. WHEREFORE, Answering Defendant respectfully requests this Honorable Court enter judgment in its favor. 28. Denied. Answering Defendant incorporates herein by reference as though set forth at length the averments contained elsewhere in this Answer with New Matter Counterclaim. 29. Admitted. 30. Denied. The averments in this paragraph are conclusions of law to which response is required. If same are deemed factual, after reasonable investigation Answeri Defendant is without information sufficient with which to admit or deny the veracity of averments of this paragraph. Strict proof, if relevant, is demanded at trial. 31. Denied. Certain averments contained in this paragraph are conclusions of law which no response is required. By way of further response, it is specifically denied t Answering Defendant made any fraudulent representations to the Plaintiff. It is denied t Answering Defendant knew or believed in any assertion it made or not in accord with the fay It is denied that Answering Defendant knew that it did not have the basis that was stated implied in any assertions it made. 32. Denied. The averments contained in this paragraph are conclusions of law which no response is required. By way of further response, it is specifically denied Answering Defendant made any assertions of actual knowledge of their falsity or with disregard for their falsity. 33. Denied. The averments contained in this paragraph are conclusions of law which no response is required. By way of further response it is denied that Answeri Defendant made any misrepresentations. 34. Denied. The averments contained in this paragraph are conclusions of lawi to which no response is required. By way of further response, it is specifically denied that Answering Defendant knew or should have known that it was unable to perform the work under terms and conditions represented to the Plaintiffs by the Defendant. By way of further respon e, it is denied that the Answering Defendant was unable to perform the indentified work. I 35. Denied. Certain averments contained in this paragraph are conclusions of law to which no response is required. By way of further response, it is denied that Answe Defendant made any misrepresentations. It is denied that the relevant system was not compl in a workmanlike manner. With respect to any remaining factual averments, after reason, investigation Answering Defendant is without information sufficient with which to admit or d the veracity of the averments of this paragraph. Strict proof, if relevant, is demanded at trial. 36. Denied. The averments of this paragraph are conclusions of law to which response is required; by way of further response it is denied that any of the Defendants acti were outrageous. 37.-39. No such paragraphs exist in Plaintiffs' complaint. 40. Denied. Answering Defendant incorporates herein by reference as though set forth at length the averments contained elsewhere in its Answer with New Matter Counterclaim. 41. Denied. The averments in this paragraph are conclusions of law to which response is required. By way of further response, it is denied that Answering Defendant m any misrepresentation or in any respect violated the Unfair Trade Practices Act - Consul Protection Law ("UTPCPL"). 42. Denied. The averments of this paragraph are conclusions of law to which no response is required. 43. Denied. The averments of this paragraph are conclusions of law to which response is required. To the extent they are deemed factual, it is specifically denied Answering Defendant made any misrepresentations. 44. Denied. The averments contained in this paragraph are conclusions of law which no response is required. 45. Denied. The averments contained in this paragraph are conclusions of law which no response is required. By way of further response, it is specifically denied that Answering Defendants violated the UTPCPL. 46. Denied. The averments contained in this paragraph are conclusions of law which no response is required. By way of further response, it is denied that Answerij Defendant engaged in any unfair or deceptive act or practice. With respect to any remainil factual averments, after reasonable investigation Answering Defendant is without informati< sufficient with which to admit or deny the veracity of the averments of this paragraph. Stri proof, if relevant, is demanded at trial. WHEREFORE, Answering Defendant respectfully requests this Honorable Court judgment in its favor. NEW MATTER 47. Averments of preceding paragraphs 1 through 46 are incorporated herein by Reference as though fully set forth at length. 48. Plaintiffs may have been negligent to such an extent as to bar and/or reduce to recovery. 49. Plaintiffs may have assumed the risk. 50. The incident at issue may have been due to the conduct of individuals and/or entities over whom Answering Defendants had no control. 51. Defendants had no duty to go beyond the scope of their contractual obligations. 52. Defendants fully performed in accordance with their obligations under contract. 53. Any damages sustained by the Plaintiffs may have been due to the actions inactions of entities over whom Answering Defendants had no control. 54. Some or all of the Plaintiffs' claims may be barred by the Statute of Limitations. 55. Defendant fully complied with its duties. 56. Defendant complied with all applicable codes, rules and regulations. 57. Plaintiffs' claims may be barred or limited by estoppel. 58. Plaintiffs' claims may be barred or limited by waiver. WHEREFORE, Answering Defendants respectfully request this Honorable Court enter Judgment their favor. COUNTERCLAIM OF DEFENDANTS LEBO's PLUMBING HEATING & AIR CONDITIONING 59. Answering Defendant incorporates herein by reference as though fully set forth length the averments contained in paragraphs 1 through 58 of their Answer with New Matter Counterclaim. 60. Plaintiffs breached relevant contracts by failing to pay Answering Defendant all sums due it. 61. Answering Defendant fully complied with all of its obligations under all at issue. 62. Answering Defendants are entitled to in excess of $7,000.00, plus interest on this sum. 63. Despite repeated demands the Guistwites have failed to pay all sums due to Lebo's Plumbing Heating and Air Conditioning. WHEREFORE, Answering Defendants respectfully request this Honorable Court enter Judgment in their favor. MARCH, HUR. Z & DeMARCO, P.C. BY: , JOS H M. DeMARCO, SQUIRE Jul 251211:21a Lebos plumbings and heat VERIFICATION 7172437655 p.10 -?? I, , on behalf of LEBO's PLUMBING HEATING & AIR CONDITIONING, verify that the facts set forth in the foregoing Answer New Matter and Counterclaim to Plaintiff's Complaint are true and correct to the best of my knowledge, information and belief and that said statements are made subject to the penalties f 18 Pa. C.S. 4904 relating to unsworn falsification to authorities. On behalf of LEB s PLUMBING HEATING & AIR CONDITIONONG CERTIFICATE OF SERVICE I, JOSEPH M. DeMARCO, ESQUIRE, do hereby certify that on July 1(-, 2012, I served a true and correct copy of the attached Defendants' Answer with New Matter and Counterclaim to Plaintiff's Complaint to the below-named party via deposit in a sealed envelope into First Class Mail. ANDREW H. SHAW, ESQUIRE Law Office of Andrew H. Shaw, P.C. 200 S. Spring Garden Street, Suite 11 Carlisle, PA 17013 MARCH, HURWI & DeMARCO, P.C. BY: JOSEPH:IV1. DeMARCO, ESQUIRE Attorney forpibefendant, LEBO's Plumbing Heating and Air Conditioning LAW OFFICE OF ANDREW H. SHAW, P. C. Andrew H. Shaw, Esquire ID. No. 87371 Andrea L. Shaw, Esquire I.D. No: 89333 200 S. Spring Garden Street, Suite 11 Carlisle, PA 17013 (717) 243-7135 _ Pry '-IT ?`411pr?, 10 'III //: 33 PFNNS YL Wh r, n? i' Attorneys for Plainti IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLV DARRYL K. GUISTWITE and, MICHELLE L. GUISTWITE, husband and wife,: Plaintiffs V. LEBO'S PLUMBING HEATING & AIR CONDITIONING, INC., Defendant yTIFFS' ANSWER TO DE] 1-46. No response required. 47. No response required. No. 2012-4112 CIVIL ACTION - LAW JURY TRIAL DEMANDED 48. Paragraph 48 of Defendant's New Matter is a legal conclusion to which response is required. 49. Paragraph 49 of Defendant's New Matter is a legal conclusion to which response is required. 50. Paragraph 50 of Defendant's New Matter is a legal conclusion to which response is required. To the extent a response is required, it is denied that the incident at may have been due to the conduct of individuals and/or entities over whom Answer had no control. Strict proof thereof is demanded at trial. 1 51. Paragraph 51 of Defendant's New Matter is a legal conclusion to whicl.. response is required. 52. Paragraph 52 of Defendant's New Matter is a legal conclusion to which response is required. 53. Paragraph 53 of Defendant's New Matter is a legal conclusion to which response is required. 54. Paragraph 54 of Defendant's New Matter is a legal conclusion to which response is required. 55. Paragraph 55 of Defendant's New Matter is a legal conclusion to which response is required. 56. Paragraph 56 of Defendant's New Matter is a legal conclusion to which response is required. 57. Paragraph 57 of Defendant's New Matter is a legal conclusion to which response is required. 58. Paragraph 58 of Defendant's New Matter is a legal conclusion to which response is required. 59. No response required. 60. Paragraph 60 of Defendant's Counterclaim is a legal conclusion to which response is required. 61. Paragraph 61 of Defendant's Counterclaim is a legal conclusion to which response is required. To the extent an Answer is required, see all averments of fact stated Plaintiffs' Complaint. no no no 2 62. Paragraph 62 of Defendant's Counterclaim is a legal conclusion to which response is required. 63. Paragraph 63 of Defendant's Counterclaim is a legal conclusion to which response is required. Respectfully submitted, Date: / J By: tinurew ri. -jnaw, r-squire Pa. Supreme Ct. I.D. No. 87371 200 S. Spring Garden Street Suite 11 Carlisle, PA 17013 717-243-7135 Attorney for Plaintiffs no no 3 VERIFICATION I verify that the statements made in this Answer are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating unsworn falsification to authorities. ?? t 6 ( I , Date: Darryl CERTIFICATE OF SERVICE I, Andrew H. Shaw, Esquire, do hereby certify that a true and correct copy of the following document, Answer To New Matter, was served this date on the below named, by placing same in the United States mail, first-class, postage prepaid thereon, addressed as follows: Joseph M. DeMarco, Esquire March, Hurwitz & DeMarco, P.C. 17 West Third Street Media, PA 19063 Attorney for Defendant Date: ?S-_ j 0 j Sup. Ct. I.D. No. 87371 200 S. Spring Garden St., Suite 11 Carlisle, PA 17013 (717) 243-7135 (phone) (717) 243-7872 (facsimile) Attorney for Plaintiff LAW OFFICE OFANDREWH. SHAW,P.C. PRQ j yea �i Andrew H. Shaw,Esquire ? 3 A ' ID. No. 87371 /�� Andrea L. Shaw, Esquire CUN$FR �� r I.D. No: 89333 PrNNSYLVAN/�'` 200 S. Spring Garden Street, Suite 11 A Carlisle, PA 17013 (717) 243-7135 Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA DARRYL K. GUISTWITE and, MICHELLE L. GUISTWITE, husband and wife,: Plaintiffs No. 2012-4112 V. CIVIL ACTION—LAW LEBO'S PLUMBING HEATING & AIR CONDITIONING, INC., Defendant JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Plaintiffs, Darryl and Michelle Guistwite, certify that: 1. A Notice of Intent to Serve Subpoenas with a copy of the Supboenas attached thereto was mailed or delivered to each party on or about April 18, 2013, to serve Subpoenas upon the following: Joseph M. DeMarco, Esquire, attorney for Lebo's Plumbing Heating and Air Conditioning, Inc., Defendant. 2. A true and correct file copy of the Notice of Intent, including a copy of the proposed Subpoenas, is attached to this Certificate. 3. The Twenty (20) day notice requirement to serve these Subpoenas has been waived by counsel for Defendant, as evidenced by the attached correspondence, and no objections have been raised. 4. The Subpoenas which will be served are identical to the Subpoenas attached to the Notice of Intent. Respectfully submitted, 7 Date: By: Andrew H. Shaw, Esquire Pa. Supreme Ct. I.D. No. 87371 200 S. Spring Garden St., Suite 11 Carlisle, PA 17013 717-243-7135 Attorney for Plaintiffs LAW OFFICE OF ANDREW H. SHAW, P.C. Andrew H. Shaw,Esquire ID. No. 87371 Andrea L. Shaw, Esquire I.D. No: 89333 200 S. Spring Garden Street, Suite 11 Carlisle, PA 17013 (717) 243-7135 Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DARRYL K. GUISTWITE and, MICHELLE L. GUISTWITE, husband and wife,: Plaintiffs No. 2012-4112 V. CIVIL ACTION—LAW LEBO'S PLUMBING HEATING & AIR CONDITIONING,INC., Defendant JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: Joseph M. DeMarco, Esquire March, Hurwitz& DeMarco, P.C. 1100 N. Providence Road P.O. BOX 108 Media, PA 19063 Attorney for Defendant Plaintiffs, Darryl K. Guistwite and Michelle L. Guistwite, intend to serve a subpoena upon the following individual, identical to the one attached to this Notice: L&R Associates, Inc., 2262 North Penn Road, Hatfield, PA 19440 You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned objections to the subpoena. If no objections are made, the subpoenas will be served. Respectfully submitted, Date: -- � By: Andrew H. Shaw, Esquire Pa. Supreme Ct. I.D. No. 87371 200 S. Spring Garden St., Suite I I Carlisle, PA 17013 717-243-7135 Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DARRYL K. GUISTWITE and, MICHELLE L. GUISTWITE, husband and wife,: Plaintiffs No. 2012-4112 V. CIVIL ACTION—LAW LEBO'S PLUMBING HEATING & AIR CONDITIONING, INC., Defendant JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: L&R Associates Inc. 2262 North Penn Road Hatfield PA 19440 (Name of Person or Entity) Within twenty(20)days after service of this subpoena,you are ordered by the court to produce the following documents or things: Any and all records,notes,reports,notices or correspondence regarding the design,recommendations or any other related information for radiant floor heating installed at the residence of Darryl and Michelle Guistwite,56 Ashton Street,Carlisle,Pennsylvania. at Law Office of Andrew H. Shaw,P.C.,200 S. Spring Garden St., Suite 11, Carlisle,PA 17013 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance,to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty(20)days after its service,the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Andrew H. Shaw, Esquire ADDRESS: 200 S .Springy;Garden St. Carlisle, PA 17013 TELEPHONE: 717-243-7135 SUPREME COURT ID# 87371 ATTORNEY FOR: Darryl K. Guistwite and Michelle L. Guistwite BY THE COURT: Prothonotary, Civil Division Date: Seal of the Court Deputy CERTIFICATE OF SERVICE I, Andrew H. Shaw, Esquire, hereby certify that I have this day served a true and correct copy of the foregoing Notice of Intent To Serve Subpoenas To Produce Documents and Things For Discovery Pursuant to Rule 4009.2 1, upon the following person(s) by first class mail, postage prepaid and addressed as follows: Joseph M. DeMarco, Esquire March, Hurwitz&DeMarco, P.C. 1100 N. Providence Road P.O. Box 108 Media, PA 19063 Attorney for Defendant Respectfully submitted, Date: q— f � f j j By: ndrew H. Shaw, Esquire 200 S. Spring Garden St., Suite 1 I Carlisle, PA 17013 (717) 243-7135 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA DARRYL K. GUISTWITE and, MICHELLE L. GUISTWITE, husband and wife,: Plaintiffs No. 2012-4112 V. CIVIL ACTION—LAW LEBO'S PLUMBING HEATING &AIR CONDITIONING,INC., Defendant JURY TRIAL DEMANDED WAIVER OF NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 I, Joseph M. DeMarco,counsel for Defendant, do hereby agree to waive the 20 Day Notice of Intent rule allowing counsel for Plaintiff to issue a subpoena to L&R Associates, Inc. Date: By: rjosep M. DeMarco, Esq ire CERTIFICATE OF SERVICE I, Andrew H. Shaw, Esquire, hereby certify that I have this day served a true and correct copy of the foregoing Certificate Prerequisite To Serve Subpoenas Pursuant to Rule 4009.2 1, upon the following person(s)by first class mail, postage prepaid and addressed as follows: Joseph M. DeMarco, Esquire March, Hurwitz&DeMarco, P.C. 1100 N. Providence Road P.O. BOX 108 Media, PA 19063 Attorney for Defendant Respectfully submitted, Date: y. �S By: Andrew H. Shaw, Esquire 200 S. Spring Garden St., Suite 11 Carlisle, PA 17013 (717) 243-7135 FILED—Ui 1•!i E MARCH,HURWITZ&DeMARCO,P.C. 0; TH E s';u T H�?�p � Y Joseph M.DeMarco,Esquire Attorney I.D.No.44061 Kristen E.Lizzano,Esquire i Attorney I.D.No.307247 C u M t,E P f 1100 North Providence Road '� -iil� r (1� d Y P.O.Box 108 1 �'S'� YLVAof!A Media,Pennsylvania 19063 (610)565-3950 Attorney for Defendant,LEBO's Plumbing Heating and Air Conditioning IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA CIVIL ACTION—LAW DARRYL K. GUISTWITE,and MICHELLE L. GUISTWITE, Plaintiffs, Case No. 12-4112 V. JURY TRIAL DEMANDED LEBO'S PLUMBING HEATING AND AIR CONDITIONING, Defendant. MOTION FOR SUMMARY JUDGMENT OF DEFENDANT LEBO'S PLUMBING HEATING AND AIR CONDITIONING 1. On or about June 29, 2012, Plaintiffs, Darryl K. Guistwite and Michelle L. Guistwite commenced the above captioned action by filing a Complaint. A true and correct copy of the Complaint is attached hereto and labeled Exhibit "A. " 2. In their Complaint, Plaintiffs alleged counts for Breach of Contract, Fraud, and Unfair Trade Practice against Defendant, Lebo's Plumbing Heating and Air Conditioning relating to the installation of radiant flooring heating in their home. 3. Pursuant to Plaintiffs Complaint, "on or about March 12, 2004, Defendant provided an estimate of work to Plaintiffs for the installation of radiant floor heating at Plaintiff's [sic] residence located at 56 Ashton Street, Carlisle, Cumberland County, Pennsylvania." See Exhibit"A" at¶4. 4. Plaintiffs allege that they "moved into the new residence and began using the radiant floor heating on or around January of 2005." See Exhibit"A"at¶9. 5. Plaintiffs further allege that "immediately upon moving into their new residence, Plaintiffs were unable to heat the residence as expected..." See Exhibit"A"at¶ 11. 6. In their responses to Defendant's Interrogatories, Plaintiffs again reiterated that they began experiencing problems upon moving into the house in January, 2005. See a true and correct copy of Plaintiffs' Answers to Defendant's First Set of Interrogatories directed to Plaintiffs attached hereto and labeled Exhibit `B. 7. Plaintiffs also participated in depositions in which they again detailed their complaints about the heating system and stated multiple times that the problems began in January, 2005. See Pages 10-I1, 17-18, and 47-48 from Deposition of Michelle L. Guistwite attached hereto and labeled Exhibit "D." 8. Plaintiffs own timeline of events reveal that this matter is beyond the statute of limitations and thus Plaintiffs' claims should be dismissed in their entirety. 9. Summary Judgment is appropriate at such time, "after the relevant pleadings are closed, but within such time as to not unreasonably delay trial... if, after the completion of discovery relevant to the motion... an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury." See Pa. R.C.P. 1035.2. 10. The causes of actions advanced by the Plaintiffs are subject to statutes of limitations that range from two to six years. 11. Plaintiffs in the instant action allegedly began experiencing problems with their new heating system in January, 2005 as indicated in their Complaint, discovery responses and deposition testimony. 12. Therefore, Plaintiffs are clearly beyond the statute of limitations as it applies to actions sounding in fraud, contract and under the Unfair Trade Practices and Consumer Protection Law (hereinafter"UTPCPL'). WHEREFORE, Defendant Lebo's.Plumbing Heating and Air Conditioning respectfully requests that this Honorable Court grant summary judgment in its favor and against Plaintiffs.and for any and all such relief deemed necessary and appropriate by this Court. MARCH, HUR &DeMARCO,P.C. Dated: August 2013 0 ep M. Demarco, Esquire n E. Lizzano,Esquire Att rneys for Defendant, Lebo's Plumbing Heating and Air Conditioning MARCH,HURWITZ&DeMARCO,P.C. Joseph M.DeMarco,Esquire Attorney I.D.No.44061 Kristen E.Lizzano,Esquire Attorney I.D.No. 307247 1100 North Providence Road P.O.Box 108 Media,Pennsylvania 19063 (610)565-3950 Attorney for Defendant,LEBO's Plumbing Heating and Air Conditioning IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA CIVIL ACTION LAW DARRYL K. GUISTWITE, and MICHELLE L.GUISTWITE, Plaintiffs, Case No. 12-4112 V. JURY TRIAL DEMANDED LEBO'S PLUMBING HEATING AND AIR CONDITIONING, Defendant. MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OF DEFENDANT,LEBO'S PLUMBING HEATING AND AIR CONDITIONING I. STATEMENT OF FACTS: This action was commenced on or about June 29, 2012,upon the filing of a Complaint by Plaintiffs, Darryl K. Guistwite and Michelle L. Guistwite. See Exhibit "A" to the foregoing motion. In their Complaint, Plaintiffs alleged counts for Breach of Contract, Fraud, and Unfair Trade Practice against Defendant, Lebo's Plumbing Heating and Air Conditioning relating to the installation of radiant flooring heating in their home. Pursuant to Plaintiff's Complaint, "on or about March 12, 2004, Defendant provided an estimate of work to Plaintiffs for the installation of radiant floor heating at Plaintiffs [sic] residence located at 56 Ashton Street, Carlisle, Cumberland County, Pennsylvania." See Exhibit "A" at 14. Plaintiffs allege that they"moved into the new residence and began using the radiant floor heating on or around January of 2005." See Exhibit "A" at ¶ 9. Plaintiffs further allege that "immediately upon moving into their new residence, Plaintiffs were unable to heat the residence as expected..." See Exhibit"A"at¶ 11. In their responses to Defendant's Interrogatories, Plaintiffs stated that in January 2005, they"expressed concerns to Defendant that heating system was not functioning properly." They went to state that "[t]hroughout winter of 2005: Plaintiffs continued to notify Defendant that the. hearing system was not functioning properly." See Exhibit 'B'` to the foregoing motion; specifically see Plaintiffs'response to Interrogatory No. 9. Mrs. Guistwite admitted during her deposition that she noticed issues with the heating in 2005. See Exhibit "C" to the foregoing motion. Specifically, in response to questioning by counsel for Defendant, she stated as follows: Q. Did you notice any issues with the heating when you first moved in in January of 2005? A. Yes. Exhibit "C" at Page 10, Line 9-11. Then again in her deposition testimony, Mrs. Guistwite testified as follows: Q. [T]he concern that you indicated previously that you identified when you first moved in was that the great room was not maintaining heating in a manner that was equal to other areas of the house; is that a fair assessment? A. Right,uh-huh. Q. Okay. And you also indicated that there was an issue with regard to the kitchen. A. Uh-huh. Q. Indicating yes? A. Yes. Exhibit "C" at Page 17, Line 5-15. Mrs. Guistwite continued to indicate that they experienced issues with the heating in 2005,testifying as follows: Q. Okay. And when did you first notice that problem? Did you notice that in January of 2005? A. Yes. This was the worst area and the kitchen area, the kitchen sink area. Exhibit "C" at Page 18, Line 2-5. Then again, during a discussion of Plaintiffs responses to interrogatories, Mrs. Guistwite testified as follows: Q. I want you to take a look at the response to question 2: A. Okay. Q. The second full paragraph: After defendant completed the installation and plaintiffs moved into the new house, plaintiffs immediately recognized that the different rooms in the house did not heat evenly. Did I read that correctly? A. Yes. Q. And, in fact, that's what you told us here today? A. Right. Q. That you identified this problem as soon as you moved in. A. Uh-huh. Q. Indicating yes? A. Yes. Exhibit"C" at Page 47, Line 11 —Page 48, Line 2. Plaintiffs own timeline of events reveal that this matter is beyond the statute of limitations and thus Plaintiffs' claims should be dismissed in their entirety. H. SUMMARY JUDGMENT STANDARD After the relevant pleadings are closed,but within such time as to not unreasonably delay trial, any party may move for summary judgment in whole or in party as a matter of law: (1)whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which would be established by additional discovery or expert report, or: (2) if, after the completion of discovery relevant to the motion, including the. production of expert reports, an adverse party who will.bear,the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. R.C.P. 1035.2. III. ARGUMENT A. Plaintiffs have failed to bring their cause of action within the prescribed statute of limitations and therefore their suit should be denied in its entirety, "Generally, a statute of limitations period begins to run when a cause of action accrues, i.e., when the injury is inflicted and the corresponding right to institute a suit for damages arises. It is the duty of the party asserting a cause of action to use all reasonable diligence to properly inform him-or herself of the facts and circumstances upon which the right of recovery is based and to institute suit within the prescribed period. Generally, once the prescribed statutory period has expired,the complaining party is barred from bringing suit." Gleason v. Borough of Moosic, 609 Pa. 353, 361-62 (2011). Plaintiffs in the instant action allegedly began experiencing problems with their new heating system in January, 2005 as indicated in their Complaint. They claim they experienced problems for the several winters that followed and voiced their concerns to the Defendant repeatedly. It is clear based upon the timing of events contained in Plaintiffs Complaint that they are far beyond any statute of limitations relating to fraud, breach of contract or unfair trade practices. In two cases decided regarding the construction and installation of roofing, the Courts determined that leaking, specifically continual leaking, would put a party on notice of a potential issue with the construction or workmanship of the roofs. See Penn Delco Union School District Authority v. M&L Construction Co., 60 Pa. D&C 2d 226 (1972). See also A.J. Aberman, Inc. v. Funk Bldg. Corp., 278 Pa. Super. 385 (1980). These cases stand for the premises that although the exact cause of the problem may be unknown, plaintiffs were aware that there might be a problem with the roofs, as they experienced leaking from the completion of each of the roofs and that they were, therefore, bound to bring their respective suits within the applicable statute of limitations periods. In both cases, the Court found that the suits were time-barred. Similarly, in the present case, the Guistwites were on notice that there was an issue as they stated time and again that they made complaints about the heating not working properly and that such problems were experienced beginning in January, 2005. Therefore, Plaintiffs had the burden to use"good sense and ordinary reason"to "pursue the problem to its source." See Penn- Delco Union School District Authority v. M&L Construction Co. at 230-31. L Plaintiffs have failed to bring their cause of action within the two-year statute of limitations for fraud and thus Count H of their Complaint is barred Pursuant to Pennsylvania statute, "the following actions and proceedings must be commenced within two years: ... (7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortuous conduct or any other action or proceeding sounding in trespass, including deceit or fraud, except an action or proceeding subject to another limitation specified in this subchapter." 42 Pa. Cons. Stat. Ann. § 5524 (West). Plaintiffs in the instant action allege that they began experiencing problems with their new heating system in January, 2005 when they first moved into their house. They claim they experienced problems for the several winters that followed and voiced their concerns to the Defendant repeatedly. It is clear based upon the timing of events contained as laid out by Plaintiffs,that they are far beyond the two-year statute of limitations relating to fraud. ii. Plaintiffs have failed to bring their cause of action within the four-year statute of limitations for breach of contract and thus Count I of their Complaint is barred Pursuant to Pennsylvania statute, actions based upon a contract are generally subject to a four year limitation period. 42 Pa. Cons. Stat. Ann. § 5525 (West). The main issue in the present case then becomes when the statute of limitations begins to run. As Plaintiffs clearly were on notice of their potential breach of contract claim in January, 2005, when they discovered the their heating system did not function as they expected, their claim is barred by the four-year statute of limitations. iii. Plaintiffs have failed to bring their cause of action within the six year statute of limitations for applicable to claims for violation of the Unfair Trade Practices and Consumer Protection Law and thus Count III of their Complaint is barred Pennsylvania Courts have determined that a six-year statute of limitations applies to alleged violations of the Unfair Trade Practices and Consumer Protection Law (hereinafter "UTPCPLU). The Plaintiff were on notice of their potential claims in January, 2005, as has been established by the admissions of the Plaintiffs in their Complaint, discovery responses and deposition testimony. IV. CONCLUSION It is irrefutable that the Plaintiffs were on notice in January, 2005, when they claimed they first experienced issues with the heating system. Due to the facts as alleged by the Plaintiffs, the statute of limitations would have begun to run, meaning that their commencement of the present action on June 29, 2012 was beyond any two-year, four-year, or six-year statute of limitations which may have applied to the causes of action advanced by the Plaintiffs. For the foregoing reasons, Defendant, Lebo's Plumbing Heating and Air Conditioning respectfully requests that this Honorable Court grant their Motion for Summary Judgment and dismiss Plaintiff's Complaint in its entirety. MARCH, W Z &DeMARCO, P.C. Dated: August? 2013 J 'seph M. DeMarco, Esquire sten E. Lizzano, Esquire Attorneys for Defendant, Lebo's Plumbing Heating and Air Conditioning Exhibit"All Jul 051:210:44a L.obos'plumbings and heat 7172437655 a;2 LAW OFFICE OF ANDREW H SHAW,AC Andrew H.Shaw,Esquire CiE.THIF P ROTH ONO 1D::.Irv. 87371' Andrea L.Shaw,Esquire ZOI?`� I'D.N1 o, 81333 CUMBERLAND COUNTY °200 S. Spring Garden Street,Suite 11 PENN5YLVANiA Carlisle,PA 1.7013 (717)243-713.5 Attorneys for Plaintiffs IN TTIE COURT OF COMLION PLEAS OF CUMBERLAND COUNTY,.PENNSYLVANIA DARRYL K. GUISTW ITE and, NO.: Hit a wit MICI-MLLE L. GUISTWIT.E,husband and.-wife,; Plaintiffs V. CIVIL.ACTION—LAW LEBO'S PLUMBING HEATING.&AIR .. CONDITIONING,INC., . Defendant JURY TRTA,L DEMANDED NOTICE YOU HA`T BEEN SUED IN COURT. If you wishto defend against the claims set forth in the following pages,you must take action within twenty(2a)days after this Complaint :and notice are served,by'entering a written appearance_personally or by attorney and filing in %w ting.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"iaaportant 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. -MUS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER: IF YOU CANNOT AFFORD TO HIRE LAWYER,.THIS.OFFICE IN11AY:BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR,-NO. FEE. Cumberland:County Bar Association 32 South Bedford Street Carlisle,PA 17413 (717)249-3166 TRUE CooY lrRr)n7 z;ccoiiD iri Testimony�Vheretr.;f le;e un"9c2 fry.'.�and: and the sen+o(said Co�.t; . i!s!�; :�' Jul 05 12 10:45a Lebos.plumbings And heat 7172437655, p3. LAW OFFICE OFANDREW IL SHAW,P.0 Andrew H. Shaw,Esgidre ID.No. 8`7371 Andrea L.Shaw,,Esquire I.D.No: 89333 204 S.Spring Garden Street,Suite l l Carlisle,TA 17013 (717)243-7135 Attorneys for Plaintiffs IN THE.COURT OF COMMON PLEAS Off'C.UMBERLANND.COUNTY;PENNSYLVANIA, DARRYL K. GUISTMTTE and, NO.: MICHELLE L. GUISTWITE,husband and wife,: Plaintiffs v. CIVIL ACTION-LAW LEBO'S PLUMBING HEATING&AIR .CONDITIONING,INC., Defendant JUR)r TRIAL DEMANDED AY ISO LISTED HA SIDO DEMANDADO EN LA CORTE. -Si usted desea.defenderse do las quejas expuestas enlas paginas siguienles,debe toma action dentro de veintc(20)digs a paztir de la feoha en que recibio.Ia dernanda y el aviso. Usted debe presentar comparecencia escrita ed persona o por abogado y,presentar en lat Corte,por escrito sus defensas o sus objeciones.a W tdemandas en su contra: Se le avisa que si no se defienda,el caso puede ptoceder sin usted y la.Corm paede decidir en su contra sin:mM aviso.o`,notificacion por.cualquier otmqueja�o compensation reclamadospor el Demandante. USTED PUEDE PERDER DINERO,O,PROPIEDADES CI OTROS DERECHOS IMPORTANTES PARA'USTED. LI..EVE ESTA DENIANDA.A UNAAI3OGAI)o LN +DIATAMEiNTE. SI USTED NO TIENE O NO CONOCES UN.ASOGADO,VAYA O LLANI_E A LA OFICINA E1N,LA, DIRECCI ON ESCRITA ABAJO,PARA A''VFRIGUAR.DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cuinberlaril County Bar Association, 32 South Bedford Street Carlisle,PA,17013 (717)249-3166 Jul.05 12 10:456 Lebos plumbings:and heat 7172437655 p 4 LAW OFFICE 0,FANDJWWH.SSHAi1, .i'.e Andrew IL Shaw,Esquire_ ID.No. 8737:1 Andrea L.Shaw,Esquire I:I?,.IVo:; 89333. 200 S:_Spring Garden Street;Suite t a C-Misle,.PA 1.701:3 {77.7)'243-71:35 Attorneys forPlai stiffs . M TIM COURT OF COlYBION PLEAS OF CUMBERLAND COUNTY,:PENNS) L`UAYIA. JDARRYL K GUISTWITE`and, -NO .MICHELLE L..GUISTWI" ,:husbafid avid Wife;: Plaintiffs v: CIVIL ACTION--LAW LE1308.PLIIINIMNG HEATING &:AIR CONDITIONING,INC., Defendant JURY TRIAL DEMANDED COMPLAINT ATID'NOgV;thisay i? ; 2012; come the Plaintiffs;.Darryl, K.`Guistwite and Michelle.L..:Gbistwite, by and through their attorneys,.Law. Office of Aii& v H. Shaw,'P C„and'liile the instant Cordplaiw and:rn support thereofstate as follows: I..- Plaintiffs _are adult ,individuals. residing: at 56 Ashton Street, Carlisle, Cumberland:Cdunty;,Perir ylvaniia:. ,2: ;Defendaht; ;Letydls: Phoibirig Heating & Air .Conditioning, `Inc. is a: Pennsylvania corpomtioh 'with a.registeied-.office address cif 62 Chestnut,, ,Avenue, Carlisle; Cuinberland.;County,Pennsylvaini.s. i Jul 06 12 10:46o Lebos,plumbing§and heat 71724.37555 3. Defendant is engiaged in 'the business of plumbing,- heatitIg arid. air conditioning; 4: 'Oh. or about March 120 2004, Defendant provided,an esdniate, bf -vvoik to PlaintliM f6t ft bistaliatio:6 ofradiant floor beating-at Plaintiff's residence:located'at S6.A -im Street, Carli.Me, Cumberland County,Pennsylvania, A copy of the Estimate is attached hereto', incorporated'byreference as Exhjbit A_ 5. Defendant provided said Estimate to Plaintiffs in comection with ffid colistruoti I on of Pfalntifrs".new,ttgijen ce. The total :estimated cost to install the radiant heating was 135,930.00'.. S"e e- &hibi;t A. 7. At. all, 'times relevant, 'Defendant ,represented to Plaintiff-s that it was knowledgeable=and':cap4�lc of ptopoly installing the radiant floor heating system system in Plaintiffs! residence. 9. Defendant 411646dly installed:the radiant floor heaflog,during the re'Main' der of 9. Plaintiff's rnoved,into the mew residence and began using: the radiant floor hdoting on or around Jaduary OfI005, 10. Plhir&M paid tots] of$37,84.80 to Defendant for'the;,initial installati&,ofl the radiant floor.heatin -9 I.. Immediately tivoii moving into;their n,e-w residence, Plaintiffi,were unable lo: beat"tht rd§idence.b4,,expccted' r 04 de§e. ihed,4y DO 7/30/13 DocW Report-Not an Official Document Docket Report Case Description Case ID: 121004401 Case Caption: DEAL ETAL VS SHAEFFER Filing Date: Friday, November 02nd, 2012 Location: CH - City Hall Case Type: 2V - MOTOR VEHICLE ACCIDENT n ' Status: CLLSC - LISTED FOR SETTLEMENT CONF Related Cases No related cases wre found. �J Case Event Schedule Event Date1T' Room LocationF Judge SETTLEMENT 27-AUG-2013 ity DISPUTE ALLEN, JACQUELINE F CONFERENCE 03:00 PM Hall RESOLUTION CENTER PROJECTED PRE- 07-OCT-2013 City Courtroom 480, ALLEN, JACQUELINE F TRIAL CONF. DATE 09:00 AM Hall City Hall PROJECTED TRIAL 04-NOV-2013 City Courtroom 480, ALLEN, JACQUELINE F DATE 09:00 AM Hall City Hall Case Motions Motion Assign/Date Control Date/Received Judge No MOT-FOR EXTRAORDINARY pending 13073947 29-JUL-2013 ALLEN, RELIEF JACQUELINE F Case Parties Seq # Assoc Expn Date Type ID Name 1 ATTORNEY FOR A201798 TIMON, MARC I https:/ffjdefile.phila.go,defsgd/zl fjd_pr%_efile 13.zp dldrpt frames?case id=121004401&uid=bGjIXXNYC21ETdH8oyk&o=1opklrtmUW!VgmJeb 1/14 Jul 0512 TOA&i Lebbs 016mbinds and heat 71724376x5 p:6: 12. PlAintiffs contacted�Deknd.ant regarding. the is-sues related to ibe radiahtNor healing in an attempt to provide Defendant an opporuinity to correct any problems in jhe:sysj&m that,may.have:ex4t vu: 13 Defendant inane multiple attempts to correct the, 1 Alleged problems with the beating system. 14. During each time that Defendant attempti--d to correct the alleged problenxs: with th6-heating,system,.Defendant l"ed'flatotiffs-to believe the heating system was iris correctly. 15* Defendant continued:to charge Plaintiffs for visits and-work, perfbtmed.'when- Attempted:to correct the problems with the:heating system. 16. On or Abotit-April. 10,2009, Plaintiffs met with a representative fforn ponor4 the company-through which Plaintiffs pur6hastd the rafiint 116ofing:that Defendant installed: 17. It was not until the meeting on April 10, 2009 Afth the representative,from Uponor ihatPlain6ffs.learned that_Defendant had:improperik installed the radiant,floor head system: is. Plaintiffs discovered that Defendant had not followed the svecificationt.ftt were provided by theinanufacturer of the-radiant floor heating system. 19.. Upon discovery of Defendant's failure to properly install I radiAt floor heating systexxi;, Plaintiffs hired A.C; Rimmer, Inc: to correct the installation of the radianufloor heating system. `20. Siftce the A.C. Riintrier, Inc., corrected the installation, of the radiant! floor: heating system,Plaintiffs have not experienced any further problems with the heating-system. 3 Jul 06.1 10.416 Lebos plurn.Wngsandh"t. '717.2437666 p.7 -contract its ut 21. The Defendant failed to perform the and the Plaintiffs in.m. gbod-and'workn unlike manner"and failedto,perform under the terms and conditions agreed.. 22. To date, Plaintiffs have paid Defendant 45,325.51. towards the inftial- installatim.artd,ihe follow up repairs to the system. 23: Plaintiffs ii I go .incurred expenses in the aftiOuht of&39,423.24 to correct,the installation of the radiant floor heating system, COUNT I—BREACH,-OF.CONTRACT 24. Plaintiffs incorporate herein by reference all averments of thin pledding as if 'tn6re fully set.1forr.th.herein' after. 25, As part of the parfies'agreement;for the installation of the radiant:floor�heating system,the Defendant agreed to.perform an necessary and relevant work. 26. DefendarA failed to adequatelY;P6610fln the necessary and reLevant'work, to install the radiant floor beating system. Asia.-result of Defendants failure to adequately perform:.all work-agreed.to by ifie. i'O' sl tho Plaintiffs bave incurred expenses in'hiring other.contractor(s) to"perform said Work. WHEREFORE, because of the Defendants breach of contract, the :Plaintiffs demaftd. judgm6nt against the'Defendaftt in,the.amount of,$45,325.53',Iogether with costs Tandifiterest And 'such other.relief as ibis Honorable Court,may deem appropriate under law; said amount being necessary to place Plaintiffs-in the position they would have been i had Defendant pe rfOrmed ilic,tontractAs'per the parties' agreement. 4 Ju10512 10:47e Lebos plumbings and heat. 71724376.55 9.4 COINT 1–FRAUD 28:- .Plaintiffs incorporate herein by reference all avetinents of this pleading as if more fully,set-forth hereinafter. 29: The Defendant represented to'the Plaintiffs that :Defendant would `lie ;abla to' pecforin the:installafion of the radiant.floor heating,system in a�good and workmanlike manner and according,to.standard industry practices iincluding all relevant codes. 0:. 11ese representations by Defendant to the' PIai»ttiffs were: riiaterial to the: Plaintiffs'decision to enter into a.contract for construction with.the Defendant. 31. Defendant's representations to the Plaintiffs were.fraudulent in that they were ibten,ded:to induce the Plaintiffs to enter into an,agreement for the installation of the radiant floor ,heating system and:, A: Defendant knew or believed that.these..assertions 'were not in accord with the facts;and/or B. :Defendant did not have the confidence that.he stated or implied in the truth of his ass&d6hs ,sod/or C: Defendant knew that be aid not have.6e basis—that he stated oz implied in- the assertions. 32. Defendant's;assertions were made with actual krnowledge of their:falsity at,the time they..were made;or with feckless disregard,of their falsity:, 33. The Plaintiffs justifiably relied on the,misrepresentation of Defendant: 34. At&—tefore.the.date the Defendant entered-inio the contract fot the:instalIation.of the radiant floorrheating system with the:Plaintiffs,Defendant knew or should:have'kriown that 5 JU10512;10,0a- L&bos plumbings and heat -7172437665- pi'9 'be.Wbiild not, or Was unable to performthe.%york'under the terms and"conditions represchted to the Plaintiffs by the Defendant and expldmed more fully above.. 35. As a result;of Ihemisrtpreseotation of DefendanL and due to Defendant's failure (dadvise. tk Plaintiffs otherwise.. the Plaintiffs have sufferdil damages including that. the installation of the radiant;floor heating s"ysterri was not completed'in a-Workmanlike manrfer:as .Weed,which total costs to cure Were 539,423.24. 36, Defendants actions'as stated,zbove-are-outrageous in nature. 'WHEREFORE, 'because of the'Defendants' frauduleni representations as stated above, the Plaintiffs tcgpec tfu llv request this Honorable Court t-o:enA terjudgment in Plaintiffs'-favor and 4gdinst Defendant as follows; 11 In an-amount equal to the cost necessary t6 put Plaintiffs in the p6sition'Ithey. would have been-in had'the Defefid4lif performed the contract;: 2. Together with costs and interest;. .3. Punitive daiiia'aas: _77- 4. Attorney fees;and S. such 0126r ref ,eta�s this.Court may deem appropriate and just under the law., COUNT III—UNFAIR TRADE PRACTICE 40? Plaintiffs incorporate herein.by-reference:all lverwehts,of this pleading as if More MY sevf6rj4 hereinafter. 6 Jul 05 12 10:48a Lobos plumbings.andheat! 7972437655. P•10 41. Defendant's:Oiisrepresedtationt, iir failure to ,"represent. constituite. unfair Arid deceptive acts and/or practices pursuant to the Unfair Trade Practice and Consumer Protection Law(hereinafter"UTP.CPL'j,73 P.S. § 201-1 et seq. 42. Pursuant to Section M0 3 of the U rPCPL, unfair methods of'competition and unfair and deceptive acts and practices in trade or commerceis unlawful. 43. The:Defendant'..s nusrepresentations as more 'fully set forth hereinabove at Length constitute unfair and deceptive'acts aridlor practices under the Unfair Trade Practices.and. Consumer Protection Law C UMPI"),73`P.S. §.201.1 et sue. 44. Pursuant .to_'8eciion_2013;of the,UTKPL, unfair methods of competition and b fair.and deceptive acts.arid.practices Mi trade or commdree are unlawful. 45. pursuant to the UTP-CI'L, the.Plaintiffs have:a private ri&t of-action against the Defendant to recover up to three times their,actual damages,plus costs and reasonable attorney's fees: X46. As a direct result of the Defendant's.unfair and deceptive acts and practices as described more fully ber6n; the.Plaintiffs have;suffeied damages including the fact that the installation of the,radiant floor.Beating,systein was not completed in a workmanlike mnantter which total costs to cure.wete,$39,423.24. WHEREIN O,RE, the Plaintiffs respectfully..request this Honorable Court to enter judgment. in Plaintiffs' favor and against Defendant as-follov►ws: 1, In an amount equal to the cost necessary to put Plaintiffs. in tbe:pos t on they would have been in had the Defendant performed the,contmot; 2: Together:with:costs and-interest; 7 Jul 05121 O'49a Lebos plu.mbings and heat: 717,2437f)155a P.1`1 3 Treble:da ages; 4. Attorney fees;and S. 1 Other jib elf-as this Court may deem appropriate;'and just ,der,tl e; law;. Respectfully:submitted, Date::; B.1?: Andrew,H $hauv;.Ewaire . Pa_ Supreme Ct.L. No:875-71 200 S. Sprang Garden Sheet Suite 11 Carlisle; PA. 17013 717-.243-71.3 5 Atl-oiney:for.Plairftiffs ;Jul 06.121.D049a_ L:ebos pliimbiNvand heat 717.M7655 p'f2 VERIFICATION I verify that the statements.made'in:this:ikmwer.are true:and.correct, l;understand:t t. false statements herein.are made subject to the.penalties of].8 l'a.0 S, Section 4.9,04,relatirag;t6' answorn•fal'sificatim to.authoritiM r . Z •1.78teZ' f Dar '`k..Gvisf�rite 4 �� ice. � � •� Date: c Michelle L:.uistwite i' Ju105121050a Leb6s p16mbings and heat 717.2437655 p:13 LE0o"S. Estimate P.O.Box 206. Plain1l eld,P,A 1708.1-©206 Date Estimate# 3i12i1oo4 za9.1 Name,/Address Crut'swite Heatin'e Protect Description .Qty Rate Total 1 fieatipg:This estir.6te is for Domestic hot water and Radiant HeaL L.b&IL,Assoeintes wovke d up the budget Price for your home.•Tbey perfonntd a heat load calculation.that netted 77,000 BTU. Pis job casts for 12,000 kWof'f/2"Pcx Plus tubing,mim fi ings, Yatves;couplers,thermostats,a variable speed igjecfiod pump, ariiltipl eirm< atoms,and LO rwiant thermostats;one hot water unit heater for each garage(they are vertical discharge)one oil.fired bot water bow,urn indirect feed water heater and two 275 gallon oil tank packages.As you can we by enclosed quote from Mrsbo,the Materials for.radiant hent'sre very costly- [am totally witting to <5smss other}teat Opitions frith you firm would lower your heating estimate. Heating Materials&Labor 35,930.00 35,930.00 f f rttldTltink�Spriiigli1tt11� T.btafs;g3o.00 Exhibit"B" LA OFFICE OFANDRE'iI'XSMW,P.0 Andrew H. Shaw,Esquire ID.No. 87371 Andres L.Sbaw;Esquire LM'No: 89333 200 S. Spring Garden Street, Suite I I Carlisle,PA 170:13 (71'7)243=7135 Attorneys for'Plainti IN THE COURT OF COMMON:PLEAS OF CUMBERLAND:COUNTY,PENNSYLVANIA DARRYLX.GUISTW.ITE and, MICHELLE L.;GUIST.WITE,,husband and wife: 'Plaintiffs No:2012-41`12 v. CIVIL ACTION.—.LAW LEBO'S PLUMBING HEATING &AIR CONDITIONING,INC., Wendant JURY TRIAL DEMANDED PLAINTIFFS' ANSWERS TO DEFENDANT'S FIRST-SET OF INTERROGATORIES DIRECTED TO PLAINTIFFS T04 Lebo's Plumbing Heating and Air Conditioning,,Inc. c/o Joseph M.DeMarco;Esquire March,Hurwitz&DeMarco;P.C. 17 West,Third Street Media,'PA 19063 1 .1. Please State the name and title.of the individual providing answers.to these interrogatories. Darryl Guistwite,Plaintiff Michelle Guistwite,Plaintiff 2. Please set forthwith specificity and-detail the plaintiff's version of how the incident'.in. Plaintiffs Complaint"occurred. ."Plaintiffs engaged Defendantfor the installation of a radiant floor heating system in the house they were having constructed. Defendant represented that it had experience in.installing radiant floor heating systems,.and represented it.,was capable of installing the radiant floor heating.system in'Plaintiffs' new house. Prior to installation,Defendant received a copy of the plans for installation from the. designer of the heating system. After Defendant completed the,installation,and Plaintiffs moved into the new house, Plaintiffs immediately recognized that the-different rooms in the,house did not heat evenly. Plaintiffs addressed this issue with Defendant,who stated the problems-with. the heat were because of theaayout of the rooms,drafts'in the windows,a draft in the living room fireplace chimney,,&ferenfeeiling heights,sunshine coming through one side of the house, a fax,machine being turned on,a pilot light in.the;gas fireplace,etc. Plaintiffs continued to call Defendant to snake corrections to the heating system to have the expected even heat throughout-the rooms in the house, and Defendant continued to state add itional.reasons as to why the heat was not even, After-more than 2.years of dealing with uneven heat;Plaintiffs finally contacted"the manufacturer of the heating'system and asked a representative to review the installation: On or about April;2,2008,David Holdorf,East Field Technician for Uponor,Inc.,reviewed the installation of the.heating system. Mr.Holdorf also -reviewed the design reports for the heating system that had been provided to Defendant. Mr..Holdorf immediately recognized that Defendant had not properly installed the water tubing.under the floors. 'Instead of separate tubing for each room;Defendant installed tubing that ran the entire width of the house,with a continuous run from room to room. Because the rooms were not separated into zones,Plaintiffs.were tunable to effectively heat the separate rooms differently., With the layout-of the house,each room has distinct heating needs, Plaintiffs reserve:the right to supplement.their response to this Interrogatory.. 3. Does the Plaintiff or anyone on,Plaintifr behalf have or know of any photographs, motion pictures,.Maps,.drawings, diagrams-,measurements, surveys.or other descriptions regarding or in any"other way,relating to or concerning the incident. 2 Yes. 4_ If the ansvvevw 3.above.is affirmative, ember attach copies-thereof or.state-for each. a. the nature.of same:, Quote:on N[tilticuir and.donate ProPan:els b. its specific.subject matter; Specs'and,project surama.ry for the installation ofthe,radiant floor heating, 'system in Plaintffs'.resilence; c. the date:it was.made or taken; Tttly 19,'2004 -d. the.*ntity of the person making,or.taking same; Jeff Wolford and Mike.Cahill e: what it;purports°to show; :illustrate or represent; acid Explains the required components and thevorreet method of installation I_ the name and addre'ss,'.of eaCll;person presently haVing custody of same. Jeff Wolford Peirce-Phelps,Inc.,490 St.John's Church Roadf P.O.Box 18.7,Camp Hill,. PA 1700.1 Mike.Cahill L&R Associates.,Inc., 1727 Penn Ave.,P,O..Box.329,Telford;PA 18969 Defendant Plaintiffs Plaintiffs:rieserve the right to supplement their-response to this Interrogatory. 3 ,5, Identify or attach copies of any.,an 4 411 writings.,notes,records orafty other documentg-in, the nature of,,an.y:coinmumea,ti.on between Plaintiff and,anyone.else and any insuranct carrier or attorney,not.otherwise privileged, which Are related to the incident. a. 'Letter feom,ba*ld H.Oldorf to plaintiffs,dated April 10,2009; b. quotations:,and Invoices from A.C.Rimmer,Oatedfebruary'23,2009 through December 18,2009; c. Clarification of final bid price from Wolf BuIlder's.Inc.,dated,March-2.2, 2004; d.. Base.ment I Account Status ktus front Wolf Buildcr`s Inc.,dated October 3i'.1009; e. Agreement, with ith JEM Environmental,.dated February 25,200.9; f. InvoiceIrom Tuckey Restoration,'Inc.,dated March 25,200.9. 6. State in detail Plaintiffs version of the events which led up to the alleged,losses,the surrounding circumstances,,and the manner in which the'alleged losses occurred including,but not limited to,the exact location,date and time of the alleged losses.. See response to Interrogatory.2 above. 7. Identify any amounts received by you in settlement:of all claims as a result of the incident,including separate identification of amounts received with regard to real estate claims and personal property claims and,please.separately describe the bases upon which those claims were made,descriptions of property items and value that.you places on the property that you claimed to have lost. None: WITNESSES 9. Please state Ahanaive,address, and:substance of the testimony-to be produced for each individual that Plaintiff.Intends-to Callas a.wiffiess at the trail of this case. �a. Dar I K.GuistvOte) Plaintiff .I.ry Testimony relevant to Plaintiffs' claim. b. "Michelle L Guistwite,Plaintiff, Testimony relevant to Plaintiffs' claim. c. Gai.y'Wolf,Wolf Builder'sInid. 35 Kutt Road,Carlisle,'PA 17015 -Tie ony,relevant to involvement as general contractor,for the construction `of Plaintiffs' residence. 4 d. Ron Wolf,:Wolf Builder's Inc. 35 Kutzload,Carlisle,PA 17015. Testimony relevant to involvement as general contractor for the construction of Plain tiffs'.residence. e.. Jeff Wolford,Peirce-Phelps,Inc. 490 5.SLJohn's Church Road,P.O.Box 187,Camp.Hill,YA 17001 Testimony relevant to involvement with design of radiant'floor heating; system and the materials inv..oWedw. .David.Holdorf,Uponor,Inc. 5925"1.4801 Street West,Apple:Valley,MN:55124 Testimony relevant to inspection of the radiant floor heating system,and the appropriate and inappropriate manner of installation of.Uponor heating` systems:. g. Mike Cahill,L..&R Associates 1.72 Penn Ave.,.P.O.Box 329,Telford,PA 1.8969 Testimony relevant to,involvement with design of radiant floor'heating system.and the materials involved. h. Alan RiMmer,A.C. Rimmer Inc. 3 Keystone'Drive,Mechanicsburg;PA 17050 Testimony relevant to reviewing the radiant floor heating system installed by Defendant,and the:revisions to the system.recommended and installed by A.C.Riinmer Inc. i. Don Foltz,A.C.Rimmer Inc. 3 Keystone,Drive,Mechanicsburg,PA 17050 Testimony relevant to reviewing the radiant floor-heating system installed by Defendant,and the revisions to the system recommended and installed by A.C.Rimmer Inc. Plaintiffs reserve the right to supplement their response to this. Interrogatory. 9. Identify each and every conversation or coinmunication'between the parties-to the action relating to the subiect.niatter of the above-entitled action. Include all communications by others acting on-.your behalf with other parties to this action or.others acting°ontheir behalf 5. Plaintiffs are unabWto identify the specific;date of each conversation or the.speeiGc content of each conversation. Generally;Plaintiffs can identify as follows: • January 2005: Plaintiffs.expressed concerns to';Defendant that heating system was not functioning properly. .It was discovered-at that,point that one of the valves of radiant system had.malfunctioned and needed replaced. • Throughout winter of 2005:Plaintiffs continued to notify Defendant°that the, heating system ryas n:ot.functioniug properly. Defendont.claimed:the problem was related to the fireplace in the.living room:; + Winter of 2006: Despite making adjustments to the fireplace in the living room,Plaintiffs continued to-experience-heating problems.with the system. Plaintiffs had additional conversations with.Defendant,who continued to blame the problems on the.fireplace. In the spring of 2006, Plaintiffs modified the venting path for the fireplace and reinstalled insulation.in the walls of the living.room: • Winter of 2007: Plaintiffs continued to experience heating problems., .During,the summer of-2006,the Plaintiffs finished off;the library.,and'began to experience the extreme heating inconsistency between the library and the.- I iving room. On numerous occasions,Plaintiffs discussed this with Defendant who claimed the differences were because of;the location_of the library in the house,the,pilot light from the gas fireplace and the-heat: generated from the personal fax machine in the-library. + -January of 2009: Plaintiffs met with Defendant and provided observations and expectations in a written format. The above.information is not,intended to represent an;inclusivelisting of conversations;but is represents the best of Plaintiffs' memory. EXPERTS 40;:Set forth the names of all experts whom Plaintiff-expects to call-as an expert.witness (A-ether or iiot,the expert is expected to testify). State(1)the subject Matter:on which the expert is ex ected.to testify, (2)the substance of the facts anti opinions;on which the expert is expects to testify; and(3)-a,summary of the ground of each opinion.Attach:a copy of the report of each expert set forth above along,with a complete summary of any. oral report. Plaiatffs.have not identified an expert witness for this matter: 'However;Plaintiffs. .reserve the right to identify an expert witness-:in the future,and.will at that point. comply with DefendanVs request: 6 I L,Please state iri detail,what; ifanythin$,Plaintiff believes Defendant:did improperly at the :premises. Defendant failed to adhere to.plans prepared by the designer of the radiant floor .heating system specific:to_;Plaintiffs' residence: Defendant ran the tubing for,the.hot water across multiple.rooms instead which thereby prevented Plaintiffs from properly regulating the temperature in each individual room: Defendant blamed other,reasons.for why the Plaintiffs were not able.to properly regulate the temperature in each individual room. The reasons"cited by Defendant. were superficial,or marginal at.best,and.#d.not.fix,the.primary problem,which was the layout of the tubing. 12..Please state in detail all items:of damage Plaintiffs'alleges they sustained:as a result of the incident including but not limited to a:description of the.type of damage and an amount for each category of damage. a. A.C..Rimmer Inc.. $39,423.24 b. JEM Environmental: $750.00 Mold inspection c. Tuckey Restoration,Inc.: S .90.00 Mold inspection OPINION WITNESSES 13..Identify any and all.witnesses, including but not liriiited to treating physicians,Whom you will call or expects.to call as,a witness at trial,whom you will ask to offer opinion testimony. For each witness identifies please further: None. Plaintiffs reserve,the right to supplement their response;to this Interrogatory. a. State the subject'matter,onhich the witness�is eitpected'fo testify; 7 b: State all bases thatqualify this witness to render an opinion and,whether that have: reached an opinion's-For each opinion ideritifiW-under"this interrogatory please further: StateAhe.substance ofthe.facts and opinions to which the witness.is• expected to testify and; ii. State a summary.of the grounds of each witness's opinion including;ail facts and materials presented to or relied upon by.the witness as well as any tests or experiments performed by them in'reaching their opinions . iii. State when the witness reached this opinion. M. Identify how any opinion was reached and whether ihis.op pion was -reached-in anticipation of litigation. 14. Please identify any entity or mi dividiial that examined any part of the work performed-by defendant,and purpose of such'examination.Please state setting; time.,.and date. R. .David Holdorf-reason for system not-functioning properly At Plaintiffs'residence,April 2,2009. b. Tuckey Restoration;Inc.-mold inspection March 25,2009 c. :JEM.Environmeutal- mold inspection ,February`25,2009 d. Gary Wolf-inspection of system installation ,Ntuiiiekous visits,including but not limited to April.2,2009 e. Ron Wolf-inspection:of.system installation Numerous visits f. Mike,Cahill-inspection'of:system installation I'lairitiffsare"unable to recall the specific date.ot'visit. 8 Respectfully submitted; s By n&ew ft. Shaw; squire Pa Supreime Ct.I: Nov 02: :20,12 1::41P_M n-nRRYLK. GU3.STUITE, DO 71-7258,31,40 p:r1 VERIFICATION I verify t it the staters is]Wade in this Answer are true and correct. I understand that: faise'statements:h rein are mad subject to the.penalties of l8 Pv: .S: Section 4904,relating,to. uriswotn falSlf ca on to nutho .Date: Darryl.. uistwite Date:. 11-12, Michelle L.Guistwite -CERTW CATE.OF SERVICE I Andrew.H,Shaw;lrsq %re,hereby certify that:I Have this day served>a;true.and correct: copy Hof the foregoing First Set of baterrogafories Directed to Defendaiic4p n tfie'fallowiii persons)by first class mai1,po§tage,piepaid and addressed as follows.:. Joseph WDeMarco, Esquire .March;;Hurwitz:&:DelVlarco,:P.C. 17 West Third Street. Media,PA 19.063- Aftorneyfor Lebo's-Pltiiribing Heating and,Air Conditioning,Int.., t Respectfully submitted,,. . Date - `�' By: drew H. Shayir;. squire: 200 S.'Spring.pard. en St„SSu to.11 Carlisle;.PA '1;701;3. (71.7)243-7.1-35 10 Exhibit"C" Page 10 1 Q. Okay. 2 A. We chose not. to finish that part of the room 3 during the initial building process . It just got too 4 lengthy. 5 Q. Was the heating system at the property 6 completely installed as of the January 2005 move in date? 7 A. On the main floor and the upstairs floor, yes . 8 The basement was not . 9 Q. Did you notice any issues with the heating 10 when you first moved in in January of 2005? 11 A. Yes . 12 Q. And what issues did you notice? 13 A. Well , when we -- the very first time when we 14 moved in, there was an issue with the I believe it was the 15 bedroom zone and Mr. Lebo actually was there the first 16 weekend that we moved in and he worked on that valve to 17 correct that problem. 18 Q. Okay. 19 A. And he advised us that the radiant system 20 would need some micro adjustments, you know, fine tuning -- 21 I believe was the word that he used -- to get bugs worked 22 out . Small adjustments that would need to be made as we 23 lived in the house . And so that was fine with us . We were 24 willing to work through those things as we lived there . 25 And when we first moved in, it was rather mild Premier Reporting, LLC Page 11 1 and then the weather snapped and turned very cold and then 2 immediately we noticed that the family room space was quite 3 cold in comparison to the rest of the areas . 4 Q. Was that something that you noticed in January 5 of 2005? 6 A. Yes . 7 Q. Did you address that with Mr. Lebo? 8 A. Yes . 9 Q. And did you address that with him in January 10 of 2005? 11 A. Uh-huh. 12 Q. Indicating yes? 13 A. Yes . Sorry. 14 Q. That ' s okay. We ' ll try to remind you. And 15 what were you told by Mr. Lebo? 16 A. His first recommendation. We have a fireplace 17 in that space . It is a gas unit . He asked us to address 18 that situation, which we did. We had the company who 19 installed that come out and take a look at it . They made 20 some adjustments to it immediately in terms of insulation 21 inside of it as best they could. Again, it was winter at 22 that point . So they made some small fine tuning 23 adjustments . They believed that it was within normal limits 24 at that time . 25 It continued to be a problem. That space was Premier Reporting, LLC Page 17 1 A. And then over here is the kitchen. 2 Q. Okay. 3 A. And. then this is the library or living room 4 space that we will be talking about as well . 5 Q. Okay. And the concern that you indicated 6' previously that you identified when you first moved in was 7 that the great room was not maintaining heat in a manner 8 that was equal to other areas of the house; is that a fair 9 assessment? 10 A. Right, uh-huh. 11 Q. Okay. And you also indicated that there was 12 an issue with regard to the kitchen. 13 A. Uh-huh. 14 Q. Indicating yes? 15 A. Yes . 16 Q. Okay. 17 A. Yes . 18 Q. And similarly the kitchen was cooler? 19 A. Yes, particularly this area of the kitchen. 20 The kitchen sink is right here . These are windows, kitchen 21 sink. So I, in particular, spend a lot of time at the 22 kitchen sink doing dishes . There is an island in this area. 23 The kitchen table is here . But this side of the kitchen 24 takes a lot of direct wind. This is the area that was cool . 25 As you travel towards the interior of the home, it was not Premier Reporting, LLC Page 18 1 as noticeable. 2 Q. Okay. And when did you first notice that 3 problem? Did you notice that in January of 2005? 4 A. Yes . This was the worst area and the kitchen 5 area, the kitchen sink area. 6 Q: Okay. So indicating that the exterior wall .to 7 the great room and the kitchen sink areas were the most 8 significant issues that you identified? 9 A. Yes . 10 Q. Okay. What attempts were made to remedy the 11 issues- with regard to the kitchen? 12 A. Again, Mr. Lebo asked that we address some 13 issues with the general contractor. One of the issues that 14 we addressed with Gary, because this is a bump out space, we 15 asked Gary to address the insulation above the area. So we 16 needed to wait until it was summertime, and he checked all 17 the insulation and re insulated above there . I am not sure 18 -- certain if he did that during the summer of 2005 or the 19 summer of 2006 . I can' t give you an exact date, but that 20 was done . 21 Q. Okay. 22 A. He pulled basically all the shingles off . He 23 went up under the soffit, re insulated, checked, added more 24 insulation. He felt that it was the best insulation he 25 could provide to a bump out area. Premier Reporting, LLC Page 47 1 that? 2 A. Okay. 3 Q. The next to the last page is a verification - .4 page . 5 A. Oh, yes, okay. 6 Q.- And that ' s your signature on that page? 7 A. Yes. 8 Q. And did you review the proposed answers prior 9 to their finalization? 10 A. Oh, yes . 11 Q. Okay. And I want you to take a look at the 12 response to question 2 . 13 A. Okay. 14 Q. The second full paragraph: After defendant 15 completed the installation and plaintiffs moved into the new 16 house, plaintiffs immediately recognized that the different 17 rooms in the house did not heat evenly. Did I read that 18 correctly? 19 A. Yes . 20 Q. And, in fact, that ' s what you told us here. 21 today? 22 A. Right . 23 Q. That you identified this problem as soon as 24 you moved in. 25 A. Uh-huh. Premier Reporting, LLC Page 48 1 Q. Indicating yes? 2 A. Yes . 3 Q. All right . 4 A. Sorry. 5 ` Q. That ' s okay. On page "6, there is a response 6 to interrogatory number 9 . - You can read the whole thing if 7 you want . 8 A. Okay. Okay. Yes. 9 Q. And I want to talk to you about the fourth dot 10 down in your response . Do you see that? It says winter of 11 2007 . 12 A. Yes . 13 Q. It says plaintiffs continued to experience 14 heating problems, correct? 15 A. Yes . 16 Q. And then it says during the summer of 2006, 17 the plaintiffs finished off the library. Do you see that? 18 A. Yes . 19 Q. What specifically was done to the library in 20 the summer of 2006 to finish it off? 21 A. Okay. On either side of the fireplace we had 22 built-in cabinetry installed. 23 Q. Okay. 24 A. And then the actual fireplace .unit was put in 25 and marble surround was installed. Premier Reporting, LLC MARCH,HURWITZ&DeMARCO,P.C. Joseph M.DeMarco,Esquire Attorney I.D.No.44061 Kristen E.Lizzano,.Esquire Attorney I.D.No. 307247 1100 North Providence Road P.O.Box 108 Media,Pennsylvania 19063 (610)565-3950 Attorney for Defendant,LEBO's Plumbing Heating and Air Conditioning IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA CIVIL ACTION—LAW DARRYL K. GUISTWITE, and MICHELLE L.GUISTWITE, Plaintiffs, Case No. 124112 V. LEBO'S PLUMBING HEATING JURY TRIAL DEMANDED AND AIR CONDITIONING, Defendant. CERTIFICATE OF SERVICE I, JOSEPH M. DeMARCO, ESQUIRE, do hereby certify that on August 2 , 2013, I served a true and correct copy of the foregoing Motion for Summary Judgment and Memorandum of Law in Support of Motion for Summary Judgment upon the below-named parties via First Class Mail,postage prepaid. Andrew H. Shaw, Esquire Andrea L. Shaw, Esquire 200 S. Spring Garden Street, Suite 11 Carlisle, PA 17013 MARCH, HU IT &De CO, P.C. Dated: August Z, 2013 Jose M. DeMarco,Esquire Kri en E. Lizzano, Esquire Attorneys for Defendant, Lebo's Plumbing Heating and Air Conditioning Fit-E 1;..Qr F 1Ir"E LA W OFFICE OFANDRE W H. SHAW,P.C. 01 H" P RC T H0t ii 1i-,R, Andrew H. Shaw,Esquire r ID. No. 87371 10'3 AUG 30 PM .`` "54 Andrea L. Shaw,Esquire CUMBERLAND COUNTY I.D. No: 89333 PENNSYLVANIA 200 S. Spring Garden Street, Suite 11 Carlisle, PA 17013 (717) 243-7135 Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA DARRYL K.GUISTWITE and, MICHELLE L. GUISTWITE, husband and wife,: Plaintiffs No. 2012-4112 V. CIVIL ACTION—LAW LEBO'S PLUMBING HEATING & AIR CONDITIONING,INC., Defendant JURY TRIAL DEMANDED PLAINTIFFS' ANSWER TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. As a matter of further response, Plaintiffs also alleged that Defendant made multiple attempts to correct the alleged problems, and led Plaintiffs to believe the heating system was installed correctly. See Paragraphs 13 and 14 of Plaintiffs' Complaint attached hereto as Exhibit A. 1 6. Admitted. As a matter of further response, Plaintiffs further stated in their response to Defendant's Interrogatories that they continued to experience problems and had discussed said problems with Defendant during the Winter of 2006, the Winter of 2007 and January of 2009. See Plaintiff's Answer to Interrogatory 9 of Defendant's First Set of Interrogatories Directed to Plaintiffs attached hereto as Exhibit B. Further, Defendant has acknowledged that he made efforts to adjust the radiant heat in the kitchen in February of 2008, and after that Defendant added additional heat to correct the heating problem. See Defendant's Answer to Interrogatory 3 of Plaintiffs' First Set of Interrogatories Directed to Defendant attached hereto as Exhibit C 7. Admitted. As a matter of further response, Plaintiff Darryl Guistwite identified the ongoing attempts to remedy the heating problem with Defendant over the course of time from January of 2005 through January of 2009. See Pages 8, 9, and 18 from Deposition of Darryl K. Guistwite attached hereto as Exhibit D. 8. Denied. It is denied that this matter is beyond the statute of limitations. It is further denied that Plaintiffs' claims should be dismissed in their entirety. As a matter of further response, the repair doctrine tolled the statute of limitations while Defendant was making recommendations to Plaintiffs for correcting the heating deficiencies and while Defendant was making repairs/additional adjustments to correct the heating deficiencies. Defendant finally discontinued his recommendations to Plaintiffs and also discontinued any further repairs/adjustments in January of 2009. Consequently, Plaintiffs' claims are not barred by the respective statute of limitations. 9. Admitted. 10. Admitted. 2 11. Admitted. As a matter of further response, as indicated in Paragraphs 6 and 7 above, Plaintiffs continued to work with Defendant to correct the deficiencies in the heating system, which Defendant installed, through January of 2009. Further, as is clear in the above- cited responses to interrogatories and depositions, Plaintiffs relied upon Defendant's representations and repairs/adjustments to be the solution(s) to the heating problem. 12. Denied. It is denied that Plaintiffs claims are beyond the relevant statute of limitations. As a matter of further response, the repair doctrine tolled the statute of limitations while Defendant was making recommendations to Plaintiffs for correcting the heating deficiencies and while Defendant was making repairs/additional adjustments to correct the heating deficiencies. Defendant finally discontinued recommendations to Plaintiffs and also discontinued any further repairs/adjustments in January of 2009. Consequently, Plaintiffs' claims are not barred by the respective statute of limitations. Lastly, the repair doctrine is settled law in Pennsylvania. Despite the clear status of the repair doctrine, and the clear documentation through the various discovery documents, Defendant continues to argue a position that has no merit. Defendant's Motion for Summary Judgment is an act of bad faith and an attempt to unreasonably delay the litigation of this matter, warranting the award of attorneys' fees to Plaintiffs' counsel for the costs required in defending said Motion. 3 WHEREFORE, Plaintiffs request this Honorable Court dismiss Defendant's Motion for Summary Judgment and further award attorneys' fees to Plaintiffs for the costs associated with defending said Motion. Respectfully submitted, Date: d " ( By; Andrew H. Shaw, Esquire Pa. Supreme Ct. I.D. No. 87371 200 S. Spring Garden Street Suite 11 Carlisle, PA 17013 717-243-7135 Attorney for Plaintiffs 4 12. Plaintiffs contacted Defendant regarding the issues related to the radiant floor heating in an attempt to provide Defendant an opportunity to correct any problems in the system that may have existed. 13. Defendant made multiple attempts to correct the alleged problems with the heating system. 14. During each time that Defendant attempted to correct the alleged problems with the heating system, Defendant led Plaintiffs to believe the heating system was installed correctly. 15. Defendant continued to charge Plaintiffs for visits and work performed when attempted to correct the problems with the heating system. 16. On or about April 10, 2009, Plaintiffs met with a representative from Uponor, the company through which Plaintiffs purchased the radiant flooring that Defendant installed. 17. It was not until the meeting on April 10, 2009 with the representative from Uponor that Plaintiffs learned that Defendant had improperly installed the radiant floor heating system. 18. Plaintiffs discovered that Defendant had not followed the specifications that were provided by the manufacturer of the radiant floor heating system. 19. Upon discovery of Defendant's failure to properly install the radiant floor heating system, Plaintiffs hired A.C. Rimmer, Inc. to correct the installation of the radiant floor heating system. 20. ' Since the A.C. Rimmer, Inc., corrected the installation of the radiant floor heating system,Plaintiffs have not experienced any further problems with the heating system. EXHIBIT 3 . E :1 d. Ron Wolf, Wolf Builder's Inc. 35 Kutz Road, Carlisle, PA 17015 Testimony relevant to involvement as general contractor for the construction of Plaintiffs' residence. e. Jeff Wolford, Peirce-Phelps, Inc. 490 S. St. John's Church Road, P.O. Box 187, Camp Hill, PA 17001 Testimony relevant to involvement with design of radiant floor heating system and the materials involved. C David Holdorf, Uponor, Inc. 5925148th Street West, Apple Valley, MN 55124 Testimony relevant to inspection of the radiant floor heating system, and the appropriate and inappropriate manner of installation of Uponor heating systems. g. Mike Cahill, L&R Associates 172 Penn Ave., P.O. Box 329,Telford, PA 18969 Testimony relevant to involvement with design of radiant floor heating system and the materials involved. h. Alan Rimmer,A.C. Rimmer Inc. 3 Keystone Drive, Mechanicsburg, PA 17050 Testimony relevant to reviewing the radiant floor heating system installed by Defendant, and the revisions to the system recommended and installed by A.C. Rimmer Inc. i. Don Foltz, A.C. Rimmer Inc. 3 Keystone Drive, Mechanicsburg, PA 17050 Testimony relevant to reviewing the radiant floor heating system installed by Defendant, and the revisions to the system recommended and installed by A.C. Rimmer Inc. Plaintiffs reserve the right to supplement their response to this Interrogatory. 9. Identify each and every conversation or communication between the parties to the action relating to the subject matter of the above-entitled action. Include all communications by others acting on your behalf with other parties to this action or others acting on their behalf. EXHIBIT 5 1 g Plaintiffs are unable to identify the specific date of each conversation or the specific content of each conversation. Generally, Plaintiffs can identify as follows: • January 2005: Plaintiffs expressed concerns to Defendant that heating system was not functioning properly. It was discovered at that point that one of the valves of the radiant system had malfunctioned and needed replaced. • Throughout winter of 2005:Plaintiffs continued to notify Defendant that the heating system was not functioning properly. Defendant claimed the problem was related to the fireplace in the living room. • Winter of 2006: Despite making adjustments to the fireplace in the living room,Plaintiffs continued to experience heating problems with the system. Plaintiffs had additional conversations with Defendant,who continued to blame the problems on the fireplace. In the spring of 2006, Plaintiffs modified the venting path for the fireplace and reinstalled insulation in the walls of the living room. • Winter of 2007: Plaintiffs continued to experience heating problems. During the summer of 2006, the Plaintiffs finished off the library, and began to experience the extreme heating inconsistency between the library and the living room. On numerous occasions,Plaintiffs discussed this with Defendant who claimed the differences were because of the location of the library in the house, the pilot light from the gas fireplace and the heat generated from the personal fax machine in the library. • January of 2009: Plaintiffs met with Defendant and provided observations and expectations in a written format. The above information is not intended to represent an inclusive listing of conversations, but is represents the best of Plaintiffs' memory. EXPERTS 10. Set forth the names of all experts whom Plaintiff expects to call as an expert witness (whether or not the expert is expected to testify). State (1) the subject matter on which the expert is expected to testify; (2)the substance of the facts and opinions on which the expert is expects to testify; and(3) a summary of the ground of each opinion. Attach a copy of the report of each expert set forth above along with a complete summary of any oral report. Plaintiffs have not identified an expert witness for this matter. However, Plaintiffs reserve the right to identify an expert witness in the future, and will at that point comply with Defendant's request. 6 MARCH, HURWITZ & DeMARCO BY: JOSEPH M. DEMARCO, ESQUIRE ATTORNEY I.D. NO. 44061 17 WEST THIRD STREET MEDIA, PA 19063 (610) 565-3950 jdenzarco@mhdle raJ, 1.com Attorneyfor Defendant,LEBO's Plumbing Heating and Air Conditioning IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION—LAW DARRYL K. GUISTWITE MICHELLE L. GUISTWITE Plaintiffs, Case No.: 12-4112 V. JURY TRIAL DEMANDED LEBO's PLUMBING HEATING AND AIR CONDITIONING : Defendant. : DEFENDANT, LEBO'S PLUMBING HEATING AND AIR CONDITIONING, INC.'s ANSWERS TO PLAINTIFFS' FIRST SET OF INTERROGATORIES 1. Answering Defendants are uncertain as to what witnesses they may call at trial. At present it seems likely that Tim Lebo, c/o Lebo's Plumbing will testify. It is also possible that Gary Wolf may testify as well as Kristopher Vioral, Cody Davis, Mike Cahill, Jeff Wolford and Ron Wolf. 2. Answering Defendant has not as yet consulted any expert witness that it anticipates will testify at trial. Once a determination in this regard is made Answering Defendant will comply with its obligations under the Rules of Civil Procedure and/or any order of court. 3. Defendants believe that the system was installed in accordance with manufacturer's specifications. A manufacturer's representative approved of the design of the system and approved of its installation. To the best of Answering Defendant's understanding the system adequately provided heat to the premises. The heating system from the very beginning was installed 100% correctly as per the plans from Mike Cahill, Wirsbo representative. As of February 8, 2008 first invoice to adjust radiant heat in kitchen and library, 3 years after original installation. At this point it was a very windy day, Mike Cahill was there twice shooting temperatures of walls, ceilings, floors and windows EXHIBIT G and each time stated the only possible problem was air infiltration. This was explained to Guistwites. Air infiltration must be addressed by window treatments, etc. Air was blowing in under kitchen sink cabinet. Gary Wolf had gone down chimney to seal off air leaks, pulled casing off living room windows to insulate areas missed, pulled roof off bumper out at kitchen sink to see where air was leaking. At this point I offered options to add more heat to what was specked out. I explained this to the Guistwites and they said they would try anything. Also after increasing heat on windy side we insulated study, lowered pipes and insulated to slow down transfer because now the study had added a standing pilot fireplace insert, a computer, a fax machine and.the door was shut tight on south side of house, trapping all heat in room. See attached wind chart. All efforts to add auxiliary heat after primary installation due to infiltration was explained and done with Guistwite's approval. 4. ' Discovery in this matter has just commenced and as such Answering Defendant is not as yet fully informed regarding all Plaintiffs' actions and/or inactions. Nevertheless, Answering Defendant believes that the Plaintiff may have engaged in inappropriate and/or wasteful actions in attempts at performing remedial work. Answering Defendants also believe that there may have been openings and air infiltration which had an impact upon the heating system at the premises. Answering Defendants also believe that the Plaintiffs have may have modified their use of the premises and/or made other modifications at the premises which had an impact upon the relevant heating system. 5. Answering Defendant incorporates herein by reference as though fully set forth at length its response to interrogatory nos. 3 and 4. 6. Answering Defendant incorporates herein by reference as though fully set forth at length its response to interrogatory nos. 3 and 4. 7. Answering Defendant incorporates herein by reference as though fully set forth at length its response to interrogatory nos. 3 and 4. 8. Answering Defendant incorporates herein by reference as though fully set forth at length its response to interrogatory no. 4. 9. Answering Defendant incorporates herein by reference as though fully set forth at length its response to interrogatory no. 3. 10. October, 2008 Basement work - after original construction—move toilet $120.28 December, 2008 Clean boiler for space heaters—hot water circulating loop $5,749.32 5 7 1 PROCEEDINGS 1 You just subjectively you would notice it? 2 (Proceedings commenced at 12:33 p.m.) 2 A. Correct. 3 *** * * 3 Q. Okay. 4 (It is hereby stipulated and agreed 4 A. And also for everyone's fairness,we moved 5 by and between counsel that signing,sealing,filing and 5 around the temperature sensors quite a bit. 6 certification are waived; and that all objections,except as 6 Q. Okay. 7 to the form of questions,be reserved until the time of 7 A. In and out of the sun;put them up on ledges; 8 trial.) 8 put them not on the floor,obviously,with the heat in the 9 * *** * 9 floor;but in different corners of the room,different 10 DARRYL K.GUISTWITE,after having been 10 heights. 11 duly sworn,was examined and testified as 11 Q. Okay. 12 follows: 12 A. For quite a long time when we were trying to 13 * ** * * 13 figure out what's going on here. 14 EXAMINATION 14 Q. Are you able to approximate for me when you 15 *** * * 15 would have first done that? 16 BY MR. DEMARCO: 16 A. When we first did it? 17 Q. Sir,you were present during your wife's 17 Q. Was it back In 2005? 18 deposition,correct? 18 A. We started moving around the temperature, 19 A. Uh-huh,yes. 19 taking temperatures in the family room before we finished 20 Q. There you go. 20 the library. Once we finished the library,it was constant 21 A. I did it the first time. 21 throughout the winter every day-- 22 Q. So you learned. Any reason why I need to 22 Q. Okay. 23 repeat the instructions that I gave to your wife before the 23 A. --especially on windy cold days when our 24 deposition? 24 system was running. 25 A. No. 25 Q. Okay. Is it fair to say that the problem was Premier Reporting,LLC Premier Reporting,LLC 6 8 1 Q. Okay. If you do answer a question,I'll 1 worse after the library was finished? 2 assume that you understood that question,acceptable? 2 A. The problem was more evident after the library 3 A. Sure. 3 was finished,because I couldn't go in that room after work 4 Q. Okay. You listened to your wife's testimony. 4 without getting de clothed with shorts on. 5 Anything jump out at you while you were sitting there as, 5 Q. Okay. Anything else? 6 "Gee,she got that wrong?" 6 A. When Michelle was talking about being at the 7 A. No,not incorrect information. 7 sink,it was obvious at two point in time I remember John, 8 Q. Okay. Okay. Are things that you were sitting 8 the foreman for Lebo's Plumbing,being there. And Michelle 9 there biting your tongue that you would have like to have 9 and I asking him about there in front of the sink as well as 10 added to things that she said? 10 in front of the fireplace,"Are we barking up the right tree 11 A. Yes,several issues,not in any particular 11 here in terms of draftiness?" 12 order. 12 We're checking windows. We had our builder 13 Q. Okay. Did you make notes of them? 13 replace the trim around these. We redid the fireplace exit. 14 A. Yes,sure. 14 And his first comment was,"In the heating profession, 15 Q. Okay. Feel free to go through them. 15 draftiness is lack of heat." And he'd repeat that a couple 16 A. The temperature readings we obtained were per 16 of times. And that clued us into we weren't getting enough 17 Mr.Lebo's request. And often we did not record them all, 17 heat to the proper parts of our house. 18 but often we were getting more like a 10 to 12 or 13 degree 18 Q. Okay. And when did those conversations occur? 19 difference between here and here,and here and here-- 19 Was that also back in 2005/2006? 20 Q. Okay. 20 A. Oh,boy. That was in the year prior to the 21 A. --especially when the system was running. 21 2009 meeting. 22 Q. Okay. 22 Q. Okay. 23 A. In particular when the system wa nnmna,It 23 A. It was within 12 months of that meeting. 24 made it worse,the discrepancy. EXHIBIT Okay. Anything else? 25 Q. Okay. And you didn't keep any not Your question--or Michelle's response to Premier Reporting,LLC ' / Premier Reporting,LLC 03/31/2013 09:51:53 PM ���/// 2 of 9 sheets 9 11 1 Mike Cahill being at a meeting with Gary Lebo and Tim-- 1 attachments. They got a few to work and a few could not 2 Gary Wolf and Tim Lebo at our house. I remember Gary 2 work. 3 specifically saying,when I got home from work,I came 3 Q. And let me make sure I understand,and the 4 downstairs and he came over to Michelle and I and said,"I'm 4 record reflects it. 5 not sure why they're not telling us more. They seem to be 5 A. Uh-huh. 6 very secretive over there. I'm trying to get some 6 Q. It's your recollection that Don would have 7 information for the two of you,but I'm not getting 7 said that there were six that were still leaking and this 8 anywhere. That was very concerning to the two of us. 8 was at a very early stage of the job and not after a 9 Q. And let me make sure I followed you. That's 9 significant portion of the job had been completed? 10 what Mike Cahill said to you and Michelle? 10 A. Correct. 11 A. This is what Gary Wolf said to Michelle and I 11 Q. You're not sure six or how many? 12 when they were over discussing it. 12 A. He was frustrated with the lack of success. 13 Q. Oh,got it. 13 He didn't give me percentage,whether it was one out of the 14 A. Discussing things in our basement about a fix 14 three or one out of four that was leaking,but it was not 15 for our disaster basically. 15 six out of the entire job. It was six that we still can't 16 Q. Got it. 16 get and we can't go any further across this section much 17 A. It was during the summertime so,no,he was 17 less the other sections until we get this. 18 not checking temperatures. I believe It was either spring, 18 Q. Okay. And it was not your impression that it 19 summer,or fall. It was not winter. So your question about 19 was something like 1 out of 25? 20 temperatures,he was not checking temperatures in the house. 20 A. No. 21 Q. Okay. And that would have been 2008?2007? 21 Q. Okay. 22 A. It would have been the year prior,at least a 22 A. It was significant enough that he had been in 23 year prior to 2009. 23 touch with Alan several times about we cannot insure or 24 Q. Okay. 24 warranty this work. This is not going well. 25 A. It was just prior to the heating fix of a loop 25 Q. Okay. Premier Reporting,LLC Premier Reporting,LLC 10 12 1 of some sort around here. 1 A. Dave Holdorf had made these recommendations. 2 Q. Okay. That fix that you identified came after 2 He is an authority in terms of planning and engineering the 3 the meeting? 3 systems. But onsite trying to get these to seal,we,as a 4 A. That came about after the meeting as well as 4 company,and me,as an installer,with my two guys here,we 5 Insulation around some of the tubes under the library. 5 can't guarantee this work. 6 Q. Okay. 6 Q. Okay. Anything else,first of all? 7 A. I believe those two fixes came as a result 7 A. No. Those are some things that stood out to 8 of-- 8 me. 9 Q. That meeting? 9 Q. Okay. Were you involved in the decision to 10 A. --some meetings we had about this isn't 10 stop the splice job and to simply do a new job? 11 working,what's going on. 11 A. Well,it was obviously a very difficult 12 Q. Okay. Anything else? 12 decision. We had spent$12,000 on top of$37,000 to do a 13 A. I remember specifically coming home during the 13 radiant heat system. We had made calls to about eight or 14 time that A C Rimmer was working on sealing these splices. 14 nine companies. Everyone of which would not come out and 15 And I remember Don Foltz particularly frustrated with 15 even look at our job except about three. At that point we 16 getting them to seal. The number 6 stands out in my mind as 16 knew there was a problem. We knew it was a big problem. We 17 what they finally came to after a small section of the 17 had discussed with our attorney as well as our--Dave 18 basement was attempted to be sealed. That was not the whole 18 Holdorf and Harvey Ramer the magnitude of the situation. 19 job. That was one section of looping. I believe they 19 We went about three or four weeks not hearing 20 started over here actually underneath the dining room, 20 back from Dave Holdorf. We knew then that A C Rimmer was 21 family room. I think It was part of this rooms'loops had 21 not going to assure us their work would be safe and last a 22 been snipped. 22 long time. With splices,even when Dave Holdorf made the 23 Q. Okay. And-- 23 recommendation,I,as the homeowner paying for this,was 24 A. So that was not the whole redo. That was 24 very hesitant to put tons of extra splices in,hundreds into 25 after a day of some snipping and some clipping and some 25 this tubing,which was already run all across my house and Premier Reporting,LLC Premier Reporting,LLC 3 of 9 sheets Page 9 to 12 of 20 03/31/2013 09:51:53 PM 13 15 1 already carries an innate risk of leakage. 1 A. No. 2 So,yes,that was a huge decision for us and 2 Q. Your wife's identification of the current 3 we debated It and struggled with it for a month. And simply 3 location of the A C Rimmer thermostats,that's also your 4 we were running out of time then. It was I think late July. 4 recollection? 5 We needed heat. We have two kids in the house. And we did 5 A. Yes. 6 decide,based on A C Rimmer's input,that we should go ahead 6 Q. And similarly where Lebo's put their 7 and get all new tubing and do it right like it should have 7 thermostats also your recollection? 8 been done. 8 A. Correct. 9 Q. Did you ever speak with Mr.Holdorf,you 9 Q. Did you ever see a copy of the design plan for 10 personally? 10 the installation of the radiant system before it was 11 A. I tried calling. Oh,yes. At our meeting I 11 installed initially by Lebo's? 12 talked to him quite a bit. 12 A. Of course not. 13 Q. You were present when he came to the property? 13 Q. Okay. 14 A. Yes. 14 A. I'm looking,yes. 15 Q. And it was one occasion that he came to the 15 Q. And did you look at it when Mr. Lebo dropped 16 property? 16 it off and gave it to your wife in approximately February of 17 A. Yes. 17 2009? 18 Q. And did you try to contact him at any point in 18 A. Immediately. 19 time after that meeting? 19 Q. And what,if anything,did you see that struck 20 A. Yes. I called him two or three times in the 20 you as significant? 21 following three weeks after the a-mails were complete. 21 A. That each room had a set temperature,a set 22 Q. And the period of time we're talking about is 22 flow rate,lots of specifics. 23 after Rimmer began the splicing job? 23 Q. And did you have any conversations with Mr. 24 A. Correct. During the time period when we were 24 Cahill,you personally,after having looked at the initial 25 --things were not going well in terms of the fix that he 25 design for the installation of the system? Premier Reporting,LLC Premier Reporting,LLC 14 16 1 had recommended. 1 A. No. 2 Q. Okay. And you tried to call him and what 2 Q. Are you happy with the way the radiant system 3 occurred when you tried to call? 3 is working presently? 4 A. Left messages. We never called back or he 4 A. Extremely happy. 5 never called back. 5 Q. Any issues,from your own perspective,about 6 Q. Did you ever-- 6 the fashion in which it currently works? 7 A. We called again a week later. No answers. So 7 A. Sometimes it's a little disappointing knowing 8 at that point we,Michelle and I,decided to deal directly 8 the number breakdown and the flow rates that should have 9 with A C Rimmer and their recommendation was,"Look,we 9 been done from the start. And according to Mr.Cahill's 10 cannot get these to seal." "So we,if we're going to do the 10 design,if each room had its own loop to it,it would give 11 work,"A C Rimmer,"we need to use all new tubing." And we 11 us more control between lots of windows with a raised 12 thought about that for about at least a week before deciding 12 ceiling and a smaller room with only a small window. We do 13 to go ahead. 13 notice a significant,sometimes significant,temperature 14 Q. Okay. Did you ever communicate with Mr. 14 difference there. Which,once again,we've talked,Michelle 15 Holfdorf via e-mail? 15 and I,that it could have been alleviated if it was put in 16 A. Not other than what we reviewed today. 16 room to room specifically. But the areas we live in the 17 Q. And that was actually from Michelle,right? 17 middle of the house are drastically improved. 18 A. Correct. 18 Q. Okay. And acceptable from your perspective? 19 Q. So you personally never did? 19 A. Yes. 20 A. Correct. 20 Q. The sums that were paid to Rimmer,as 21 Q. Okay. You're a physician? 21 identified by your wife,are they in accordance with your 22 A. Yes. 22 recollection of the sums that were paid? 23 Q. No particular training in construction? 23 A. Yes. We paid a lot of money upfront,like 24 A. Absolutely not. 24 around the$7,000 to get them to start. And then the 25 Q. Okay. Heating or air-conditioning systems? 25 splicing did not go well and we had the decision to make to Premier Reporting,LLC Premier Reporting,LLC 03/31/2013 09:51:53 PM Page 13 to 16 of 20 4 of 9 sheets 17 19 1 spend a lot of money to do it correctly or scrap the system 1 were always on there and that opening was always closed to 2 completely and use some kind of forced hot air or heat pump. 2 the hallway. 3 So we were faced with a dilemma. We had to make a decision. 3 Q. Okay. 4 It was summertime,and we decided to just go ahead and do 4 A. Once his drawings were done,if not very close 5 it-- 5 to when we started digging. 6 Q. Okay. 6 Q. That's fair enough. 7 A. --to the best of our knowledge as accurately 7 A. So all the subs,I believe,got those plans. 8 and correctly as it should have been done in 2005. 8 Q. Okay. 9 Q. Okay. The work to--remodel is the wrong 9 MR.DEMARCO: That's all I have. Thank you 10 word. Don't know what word I'm searching for. But to set 10 very much. I appreciate it. 11 up the living room occurred during the 2006 year; is that 11 THE DEPONENT: Okay. 12 your recollection as well? 12 (Whereupon,the deposition was concluded at 13 A. It was. 13 12:50 p.m.) 14 Q. The fireplace insert? 14 15 A. It was about a year and a half,two years, 15 16 after we moved in,so it might have been the following 16 17 summer yet. 17 18 Q. The summer of 2007 perhaps? 18 19 A. It was at least a year after we moved in,yes. 19 20 Q. Okay. And your wife identified the work that 20 21 was done in the room. Is that in accordance with your 21 22 recollection? 22 23 A. Yes. 23 24 Q. And there is a fireplace propane insert in 24 25 that room now? 25 Premier Reporting,LLC Premier Reporting,LLC 18 20 1 A. Yes. 1 COMMONWEALTH OF PENNSYLVANIA) 2 Q. Okay. Do you ever use that? ss. 2 COUNTY OF CUMBERLAND ) 3 A. Rarely. And we have actually,during this 3 4 time period,went to the effort of blowing out the pilot 4 I,LINDA C. LARSON,a Court Reporter-Notary 5 light,because we were told by Mr.Lebo that was creating a 5 Public authorized to administer oaths and take depositions 6 lot of heat in that room. And at one point we actually 6 in the trial of causes,and having an office In Carlisle, 7 moved the fax machine out of that room,because that was 7 Pennsylvania,do hereby certify that the foregoing is the 8 creating a lot of heat as well. So we did extensive changes 8 testimony of DARRYL K.GUISTWITE. 9 based on his recommendations to try to cool that room down, 9 I further certify that before the taking of 10 said deposition the witness was duly sworn;that the 10 leave the doors open 24 hours a day. 11 questions and answers were taken down stenotype by the said 11 Q. Okay. 12 Reporter-Notary,approved and agreed to,and afterwards 12 A. Move out or put out the pilot light,those 13 reduced to computer printout under the direction of said 13 kinds of changes. 14 Reporter. 14 Q. Okay. The changes from the initial design of 15 I further certify that the proceedings and 15 the living room in terms of the entrance ways to what's 16 evidence are contained fully and accurately in the notes 17 taken by me on the within deposition,and that this copy is 16 ultimately built,is your recollection,in accordance with 18 a correct transcript of the same. 17 your wife's,that initially there was an opening into this 19 In testimony whereof,I have hereunto 18 hallway and an opening called for into that hallway and that 20 inscribed my hand this 27th day of March,2013. 19 it was ultimately decided that there would just be the one 21 20 opening? Linda C. Larson,CSR, RPR,CLR,CRI 21 A. I believe the plan given by Gary once It was 22 Court Reporter and Notary Public 22 drawn,before construction even began on our house,looked In and for the Commonwealth of 23 Pennsylvania 23 like that. 24 **Valid certification contains original signature of 24 Q. Okay. reporter. 25 A. I believe,to my recollection,those doors 25 Premier Reporting,LLC Premier Reporting,LLC 5 of 9 sheets Page 17 to 20 of 20 03/31/2013 09:51:53 PM CERTIFICATE OF SERVICE I, Andrew H. Shaw, Esquire, do hereby certify that a true and correct copy of the following document, Answer to Motion for Summary Judgment, was served this date on the below named, by placing same in the United States mail, first-class, postage prepaid thereon, addressed as follows: Joseph M. DeMarco, Esquire March, Hurwitz&DeMarco, P.C. 17 West Third Street Media, PA 19063 Attorney for Defendant Date: Andrew H. aw, Esquire Sup. Ct. I.D. No. 87371 200 S. Spring Garden St., Suite 11 Carlisle, PA 17013 (717) 243-7135 (phone) (717) 243-7872 (facsimile) Attorney for Plaintiff F,LEO-Oi=FICE = THE p 4THONO TAR , 2014 JAN 24 pM '2: 53 DARRYL K. GUISTWITE an ENNSYLVANI COUNTY LdL MICHELLE L. GUISTWITE, Plaintiffs it V. (room'?of 01m6rrinnb IN THE COURT OF COMMON PLEAS LEBO'S PLUMBING HEATING AND OF THE NINTH JUDICIAL DISTRICT AIR CONDITIONING, Defendant 2012-04112 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE GUIDO, MASLAND, and PLACEY, J.J. OPINION and ORDER OF COURT Placey, C.P.J., 24 January 2014:-- In this civil action, Plaintiffs, Darryl K. Guistwite and Michelle L. Guistwite, filed suit against Defendant, Lebo's Plumbing Heating and Air Conditioning, alleging breach of contract, fraud, and unfair trade practices. For disposition at this time is Defendant's Motion for Summary Judgment to the fraud, breach of contract, and unfair trade practices claims. For the reasons stated in the following opinion, Defendant's Motion for Summary Judgment will be granted in part and denied in part. STATEMENT OF FACTS The pertinent facts, viewed in the light most favorable to Plaintiff as the non- moving party, can be summarized as follows: In March 2004, Defendant provided an estimate of work to Plaintiffs for installation of radiant floor heating' at Plaintiffs' residence. Defendant installed the radiant floor heating during the remainder of 2004 Radiant floor heating is a subfloor temperature control system that emits heat energy upward through the floor. and Plaintiffs moved into the residence in early 2005. Plaintiffs immediately found they were unable to heat the residence as expected and contacted Defendant. Defendant made multiple attempts to correct the alleged problems with the heating system; Defendant charged Plaintiffs for these visits and the work performed in attempt to correct the issues. Plaintiff alleges they were led to believe the heating system was installed correctly. According to Plaintiffs' Answers to Defendant's Interrogatories, Plaintiffs notified Defendant of problems with the heating system throughout the winter of 2005 which Defendant claimed was related to the fireplace in the living room. In winter 2006, Plaintiffs made adjustments to the fireplace, but the heating problems continued; Plaintiffs had additional conversations with Defendant who continued to blame the issues on the fireplace. Plaintiffs modified the venting path for the fireplace and reinstalled insulation in the walls of the living room. In winter 2007, Plaintiffs continued to experience heating problems which Defendant claimed was due to Plaintiffs finishing off a library as well as a pilot light and a fax machine. Defendant has admitted, in Defendant's Answers to Plaintiff's First Set of Interrogatories, adjustments were made in February 2008; Defendant also offered options to add more heat to which Plaintiffs agreed. Defendant explained these efforts to add auxiliary heat to Plaintiffs. Finally, in January 2009, Plaintiffs met with Defendant who provided Plaintiffs with the plans for the heating system; Plaintiffs state that Defendant finally discontinued recommendations as well as repairs or adjustments in January 2009. 2 On 10 April 2009, Plaintiffs met with a representative from the supply company through which Plaintiffs purchased the radiant flooring that Defendant installed; at that meeting, Plaintiffs learned Defendant had improperly installed the radiant floor heating system by not following the specifications provided by the manufacturer. Defendant denies any problems with the radiant floor heating and denies that the flooring was not properly installed. After the discovery of the improper installation, Plaintiffs hired another company to correct the installation and have not experienced any further problems with the heating system. On 29 June 2012, Plaintiffs commenced the present action. STATEMENT OF LAW Summary judgment, generally. The procedural rules governing motions for summary judgment, specifically Pennsylvania Rules of Civil Procedure 1035.1 through 1035.5, instruct the court to enter judgment when no genuine issue of material fact exists as to a necessary element of a claim or defense, entitling the moving party to judgment as a matter of law. See Pa.R.C.P. 1035.2. Pursuant to Pa.R.C.P. 1035.2, a party is entitled to move for summary judgment when the relevant pleadings are closed and additional discovery or expert report would not establish a genuine issue of any material fact. The non-moving party is not permitted to rely upon mere allegations or denials found in the pleadings. Pa.R.C.P. 1035.3 (a). To prevail, the non-moving party must identify at least one or more issues of fact arising from the evidence of record, challenge the credibility of one or more witnesses, or cite to evidence that establishes the essential facts or elements to which the opposing party alleges were not produced. Id. 3 at (a)(1)-(2). In essence, the non-moving party must adduce sufficient evidence on which they have the burden, showing that a jury could return a verdict in their favor. Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996). The purpose of granting summary judgment is to preclude cases from going to trial when a party cannot substantiate a claim or defense after the relevant discovery is closed. Miller v. Sacred Heart Hosp., 753 A.2d 829, 833 (Pa. Super. 2000). In evaluating a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party and resolve any doubt against the moving party. Hughes v. Seven Springs Farm, Inc., 762 A.2d 339, 340-41 (Pa. 2000). Summary judgment is appropriate only in those cases that are free and clear from doubt. Marks V. Tasman, 589 A.2d 205, 206 (Pa. 1991); Basile v. H & R Block, Inc., 761 A.2d 1115, 1118 (Pa. 2000). Statute of limitations, generally. A civil action must be commenced within the time frame specified in Chapter 55 of Title 42 of the Pennsylvania Code, unless a different time is specified by statute or the parties have agreed, in writing, to a shorter time. See 42 Pa.C.S. § 5501 et seq. Generally, the statute of limitations is computed from the time the cause of action accrued. 42 Pa.C.S. § 5502. An action is deemed commenced when a document embodying the matter is properly filed with the court. 42 Pa.C.S. § 5503. "The application of the statute of limitations to an alleged cause of action is a matter to be determined by the court." Packer Soc. Hill Travel Agency, Inc. v. Presbyterian Univ. of Penn. Med. Ctr., 635 A.2d 649, 651 (Pa. Super 1993). Our Supreme Court has recognized that there are strong policy judgments behind the enactment of statutes of limitation. 842 A.2d at 346. Statutes of limitation 4 serve "to expedite litigation and thus discourage delay and the presentation of stale claims which may greatly prejudice the defense of such claims." Insurance Co. of North America v. Carnahan, 284 A.2d 728, 729 (Pa. 1971). In order to insure the important purpose of the limitations periods is realized, statutes of limitation are to be strictly construed. See Bonfitto v. Bonfitto, 137 A.2d 277, 278 (Pa. 1958). Statute of limitation for fraud. The legislature has enumerated several actions which must be commenced within two years, including "[a]ny other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud[.]" 42 Pa.C.S. § 5524. Statute of limitation for breach of contract. The time frame for commencing an action based upon "a contract, obligation or liability founded upon a writing ... under seal or otherwise" is four years. See 42 Pa.C.S. § 5525. See also 635 A.2d at 652.2 The Pennsylvania Supreme Court examined the period of limitations for contracts in Gustine Union Assoc., Ltd. V. Anthony Crane Rental, Inc., L.P., 842 A.2d 334 (2004). In Gustine, the Supreme Court noted that Superior Court's reliance on Romeo & Sons, Inc. v. P.C. Yezbak & Son, Inc., 617 A.2d 1320 (Pa. Super. 1992), was misplaced and the Superior Court incorrectly applied a six year period. 842 A.2d at 343. When the Supreme Court affirmed in Romeo, the Court looked at the "plain language of the prior 2 The Pennsylvania Superior Court examined the history of statute of limitations for contracts, especially with regard to whether or not the contract was under seal. The Superior Court notes the changes in the 1980's, which gave rise to the present time frames. The Superior Court explicitly states"the statute of limitations for all written contracts is four years and the statute of limitations for contracts under seal ... is twenty years. Thus, the statute of limitations applicable to all actions on contracts not under seal is uniform. The period of limitations is four years." 635 A.2d at 652. 5 version of the statute and held that construction contracts were governed by the statutory provision addressing `[a]n action upon a contract, obligation or liability founded upon a bond, note or other instrument in writing."' Id. In Gustine, the Supreme Court noted that the amended statute uses the very same language, but now such actions are explicitly governed by a four-year period of limitations, as opposed to the previous statute which provided for a six-year period of limitations for such actions. Id. at 348. The Supreme Court acknowledged that the plain language is clear and unambiguous: "if the proviso concerning other limitations periods is not applicable 3, then the four-year rule set forth in 5525(a)(8) controls contract actions based upon a writing." Id. at 347. Statute of limitation for Unfair Trade Practices. The Unfair Trade Practices and Consumer Protection Law (hereinafter "UTPCPL"), 73 P.S. § 201-1 et seq., allows for private actions by "[a]ny person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers an ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act, or practice declared unlawful by section 3 of this act." 73 P.S. § 201- 9.2. However, the legislature failed to include a statute of repose under § 201-9.2. See Gabriel v. O'Hara, 534 A.2d 488, 493 (Pa. Super. 1987). In Gabriel, the Superior Court found that a uniform statute of limitations for the UTPCPL was required for consistency and clarity; the Superior Court agreed with the appellants and held that the six-year 3 42 Pa.C.S. § 5525(a)(8) provides for a four-year statute of limitation for"[a]n action upon a contract... founded upon a writing" but also contains a proviso excepting "an action subject to another limitation specified in this subchapter." 6 "catchall" limitations period of 42 Pa.C.S. § 55274 applies to private actions under the UTPCPL. Id. at 494. Repair doctrine, generally. In Amodeo v. Ryan Homes, Inc., 595 A.2d 1232, 1237, the Superior Court adopted the repair doctrine.5 Upon formally adopting the repair doctrine, the Superior Court in Amodeo held that the repair doctrine "will only apply under circumstances where the evidence reveals that repairs were attempted; representations were made that the repairs would cure the defects; and the plaintiff relied upon such representations." Id. at 1237. The question of whether the statute of limitations is tolled under the repair doctrine is a question of fact. Keller v. Volkswagen of America, Inc., 733 A.2d 642, 646 (Pa. Super. 1999). "[O]nly where the facts are so clear that reasonable minds cannot differ may be the commencement of the limitations period be determined as a matter of law." Sadter v. Jackson-Cross Co., 587 A.2d 727, 732 (Pa. Super. 1991). The Superior Court noted that the repair doctrine serves to promote the public policy of avoiding unnecessary litigation; a party who, in good faith, postpones filing suit and relies on another party's assurances that undertaken repairs will alleviate a problem should not be disadvantaged by allowing the statute of limitations to expire and defeat the suit. Amodeo, 595 A.2d at 1239. 4 42 Pa.C.S. § 5527(b) states that"[a]ny civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation) must be commenced within six years." 5 The Superior Court noted that repair doctrine had not previously been formally adopted in Pennsylvania; the Court had previously declined to adopt the doctrine based on the finding that"[t]here can be no estoppel merely because an attempt has been made to repair a defect. For estoppel to arise which will toll the statute of limitations, there must also be a representation that the repairs have cured or will cure the defect." 595 A.2d at 1236 (citing Ranker v. Skyline Corp., 493 A.2d 706 (Pa. Super. 1985)) (internal quotations omitted). 7 APPLICATION OF LAW TO FACTS Motion for summary judgment as to COUNT I— BREACH OF CONTRACT. As noted, the Pennsylvania Supreme Court, in Gustine, found the applicable statute of limitations for breach of contract actions is four years, effectively overruling the Superior Court's decision in Romeo & Sons. 842 A.2d at 343, 348. The Complaint was filed on 29 June 2012; in order for the breach of contract claim to fall within the statute of limitations, the last repair must have been made on 29 June 2008 or thereafter. Defendant admits to making adjustments and repairs, including adjustments to the radiant heat in the kitchen and adding additional heat to the system in February 2008.6 Defendant stated that options were offered to Plaintiffs to add more heat and that the options were explained to Plaintiffs; Defendant states that all efforts to add auxiliary heat were explained to Plaintiffs who approved of the efforts.' It is clear that, as late as February 2008, Defendant made repairs to the radiant floor heating system. It is also clear that Defendant's efforts to explain the adjustments serve as a representation that the adjustments are an attempt to cure the problem. Further, it is clear that Plaintiffs relied upon such representations as they paid for Defendant to do the work and did not yet commence an action against Defendant. However, Plaintiff has not sufficiently pled any repairs or representations made on or after 29 June 2008. Plaintiffs' only mention of interactions with Defendant is a meeting in January 2009 where Plaintiffs talked with Defendant and Defendant gave the heating plans to 6 Defendant Lebo's Plumbing Heating and Air Conditioning, Inc.'s Answers to Plaintiffs' First Set of Interrogatories, 1-2 (Exhibit C to Plaintiffs'Answer to Defendant's Motion for Summary Judgment). Id. at 2. 8 Plaintiffs$; this allegation does not include any repairs or adjustments or representations that any further repairs or adjustments would be made. In fact, Plaintiffs state that the January 2009 meeting resulted in Defendant terminating his professional relationship with Plaintiffs, which confirms that no repairs were undertaken at that time and no representations that future repairs would fix the problem were made.9 "Entry of summary judgment is proper where the plaintiff fails to plead facts sufficient to toll the statute[.]" Taylor v. Tukanowicz, 435 A.2d 181, 183-84 (Pa. Super. 1981) (internal citations omitted). Here, it is found that Plaintiffs have not pled sufficient facts to toll the statute. Plaintiffs have not shown, in the record, any repairs made after 29 June 2008, nor any representations that such repairs would cure the defects. For this reason, Defendant's Motion for Summary Judgment as to Count I — Breach of Contract is granted. Motion for summary judgment as to COUNT//— FRAUD. Defendant has moved for summary judgment as to "COUNT II — FRAUD." The statute of limitations for a count in fraud is two years. See 42 Pa.C.S. § 5524. Plaintiffs acknowledge this time frame and acknowledge that, even assuming arguendo that the statute of limitations only began to run in January 2009, Plaintiffs failed to file the instant action prior to the expiration of the applicable statute of limitations. For this reason, Defendant's Motion for Summary Judgment as to Count II — Fraud is granted. 8 Plaintiffs' Answers to Defendant's First Set of Interrogatories Directed to Plaintiffs, 6 (Exhibit B to Memorandum in Support of Motion for Summary Judgment of Defendant, Lebo's Plumbing Heating and Air Conditioning); Plaintiffs' Brief in Opposition to Defendant's Motion for Summary Judgment, 3 (hereinafter"Plaintiffs' Brief). 9 Plaintiffs' Brief at 3. 9 Motion for summary judgment as to COUNT 111— UNFAIR TRADE PRACTICES for failure to comply with the statute of limitations. In Gabriel, the Superior Court found that the six-year "catchall" limitations period of 42 Pa.C.S. § 5527 applies to private actions under the UTPCPL. 534 A.2d at 494. In order to survive a motion for summary judgment based on the statute of limitations, the repair doctrine must have tolled the running of the statute of limitations until 29 June 2006. As discussed, it is found that Defendant made adjustments or repairs to the heating system in February 2008. It is further found that Defendant's explanations and discussions of this adjustments or repairs with Plaintiffs constitute a representation that the attempts will cure the defect. Finally, the record is full of evidence of Plaintiffs reliance on such representations, including paying for these repairs or adjustments, making other changes within their home at the suggestion of Defendant, and not commencing an earlier lawsuit. The repair doctrine is satisfied and tolled the statute of limitations until at least February 2008, which is far later in time than the 29 June 2006 required to allow the UTPCPL claim to survive summary judgment. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 24th day of January 2014, upon consideration of the Defendant's Motion for Summary Judgment, and following argument held on 27 September 2013, Defendant's Motion for Summary Judgment is GRANTED as to Counts I and ll. Defendant's Motion for Summary Judgment as to Count III is DENIED. 10 BY THE COURT, Thomas A. lacey, C.P.J. Dt' tribution: J./oseph M. Demarco, Esq. /Andrew H. Shaw, Esq. LL 11 r.'LEO-OF1'ICE THE PROTHONOTAP `i" 2014 JAN 24 PH 21- 5 3 DARRYL K. GUISTWITE and CUK L COUNTY ttta , ' MICHELLE L. GUISTWITE, ` sir vA Plaintiffs V. Count?of QCumbWoub IN THE COURT OF COMMON PLEAS LEBO'S PLUMBING HEATING AND OF THE NINTH JUDICIAL DISTRICT AIR CONDITIONING, Defendant 2012-04112 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ORDER OF COURT AND NOW, this 24th day of January 2014, upon consideration of the Defendant's Motion for Summary Judgment, and following argument held on 27 September 2013, Defendant's Motion for Summary Judgment is GRANTED as to Counts I and II. Defendant's Motion for Summary Judgment as to Count III is DENIED. URT- Thomas lacey, C.P.J. D' tribution: Joseph M. DeMarco, Esq. drew H. Shaw, Esq. f 070-ItLi- //2q/lry t=TV) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DARRYL K. GUISTWHE, and MICHELLE L. GUISTWITE, Plaintiffs, Case No. 12-4112 V. JURY TRIAL DEMANDED LEBO'S PLUMBING HEATING AND AIR CONDITIONING, Defendant. PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above -entitled action "settled, discontinued and ended" upon payment of your costs only. Dated: NDRE H. SHA , SQUIRE 200 S. Spring Garden Street, Suite 11 Carlisle, PA 17013 Attorney for Plaintiffs CERTIFICATE OF SERVICE I, Andrew H. Shaw, Esquire, do hereby certify that a true and correct copy of the following document, Praecipe To Settle, Discontinue and End, was served this date on the below named, by placing same in the United States mail, first-class, postage prepaid thereon, addressed as follows: Date: Joseph M. DeMarco, Esquire March, Hurwitz & DeMarco, P.C. 17 West Third Street Media, PA 19063 Attorney for Defendant A rew H. haw, Esquire Sup. Ct. I.D. No. 87371 200 S. Spring Garden St., Suite 11 Carlisle, PA 17013 (717) 243-7135 (phone) (717) 243-7872 (facsimile) Attorney for Plaintiffs