HomeMy WebLinkAbout02-0739Gerald A. Bennett and
Jacqueline Smith Bennett
Plaintiffs
VS.
Haubert Homes, Inc.
Defendant
· IN THE COURT OF COMMON PLEAS
· OF CUMBERLAND COUNTY
· CIVIL DIVISION - LAW
UO.0~,-~(~ CIVIL TERM
· 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 of for any other claim or relief requested by the
Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
Gerald A. Bennett and
Jacqueline Smith Bennett
Plaintiffs
VS.
Haubert Homes, Inc.
Defendant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL DIVISION - LAW
' UO.~'7~ CIVIL TERM
JURY TRIAL DEMANDED
COMPLAINT
1. Plaintiffs, Gerald A. Bennett and Jacqueline Smith Bennett, are husband and
wife residing at 1063 Country Club Road, Camp Hill, PA 17011.
2. Defendant, Haubert Homes, Inc. is a Pennsylvania corporation with a
registered address of 15 Central Blvd., Camp Hill, PA 17011.
3. Defendant, Haubert Homes, Inc. is a contractor and builder of residential
homes in Cumberland County.
4. On or about July 8, 1997, Defendant agreed to build a residential home for
the Plaintiffs.
5. On or about July 8, 1997, Plaintiffs entered into a written contract with
Defendant, described as a Residential Construction Agreement, to include a Schedule
of Agreed Upon Options (Schedule A, a true and correct copy of which is attached
hereto, made a part hereof, and marked Exhibit A).
6. The Plaintiffs have fulfilled all of the provisions of the agreement on their part
to be performed.
The Plaintiffs have paid the Defendant to date $244,000, according to the
Contract.
8.
The Contract calls for the performance of certain work and the furnishing of
certain materials by the Defendant as therein stated.
9. The Defendant has failed to properly complete the provisions of the
agreement on its part to be performed.
10. Defendant has wholly neglected to do and perform certain things which were
expressly, or by necessary implication, required to be done and performed by the
agreement(s) as follows:
a. Knee light (failed to install in front brick work)
b. Bathroom light (failed to install)
c. Brickwork (failed to install on front fa(;ade)
d. Soundproofing of walls (failed to install)
e. Cathedral ceiling (failed to build)
f. Exterior venting of microwave (failed to vent)
g. 4' extension to great room (failed to build)
h. Dental molding (failed to install)
i. Basement stoop (failed to install)
j. Oblong toilet in powder room (failed to install)
k. Zoned heat (failed to install)
11. Defendant has performed in a poor, improper and unworkman-like manner
certain other things which were expressly, or by necessary implication, required by the
agreement to be done and performed in a proper and workman-like manner, as follows:
I. Painting (defects in quality)
m. Deck posts (improper installation)
n. Siding (reinstallation)
o. Basement duct work (reinstallation)
p. Foundation (finish work)
q. Bathroom mirror (crooked)
r. Kitchen lights (over cabinets) (wrong location)
s. Great room ceiling (finish work)
t. Fireplace mantel (wrong material)
12. The Defendant has repeatedly failed and repeatedly refused, and still refuses,
to cure the aforesaid breaches, despite Plaintiffs' repeated demands.
13. Defendant has told Plaintiffs that aforesaid complaints of workmanship:
a. Cannot be cured due to work already completed, or
b. Cannot be corrected without considerable cost to Defendant irrespective
of contract obligations.
14. Plaintiffs, as result of Defendant's actions or inactions, have obtained estimates
for completion or repair of the previous denoted items from other reputable contractors.
15. The reasonable cost of remedying the aforesaid breaches is in excess of
$60,000.
16. Defendant has breached its contract with Plaintiffs, and Plaintiffs have been
damaged by Defendant's breach in an amount in excess of $60,000.
17. During design meetings with the Defendant, Plaintiffs were specifically assured
that the heating system to be installed was among the best in the business and that
there would be no problems thereafter with the heating system. In reality, the heating
system was a single zone, not zoned throughout the house as promised, poorly
installed and temperatures cannot be propedy controlled.
18. During the design meetings with the Defendant, Plaintiffs were promised that
their house was a custom design and not a stock home. Plaintiffs thereafter discovered
that, in reality, two stock floor plans had been placed together and consequently the
Defendant failed to make the necessary cathedral ceiling height adjustments to the
upper level. The Plaintiffs were informed of this deficit after the house was fully framed,
wiring completed and dry wall was partially placed in the home.
19. During the design meetings with the Defendant, Plaintiffs were assured by the
Defendant that an additional 4 feet of depth could be added to the great room for
additional money, which Plaintiffs agreed to pay. In reality, Plaintiffs later discovered
that only 4 square feet was added to the total diameter of the room and not the
additional 4 feet extension as promised.
20. During the design meetings with the Defendant, Plaintiffs were assured that
there would be special allowances made to reduce noise conduction throughout the
house, especially considering the placements of bed and bathrooms to the main living
areas of the home. In reality, the house actually enhances and conducts sound and the
noise reduction promise by the Defendant has not materialized.
21. During the design meetings with the Defendant, Plaintiffs had numerous
discussions concerning the installation of brick exterior. Ultimately, the Plaintiffs
decided to add brick at the corners of the front of the home, but the Defendant failed,
even though agreed as part of the contract, to add the brick to the home. As of this date
no brick has been added to the home pursuant to the contract.
22. At all times relevant hereto the Defendant held itself out as a sophisticated
expert in home construction and Plaintiffs relied upon all statements, recommend-
ations and suggestions from the Defendant in terms of its unique abilities and expertise
in this area which, ultimately, led to the losses set forth herein.
23. At all times relevant hereto the Defendant represented that the goods and
services to be provided to the Plaintiffs in the home were of a particularly high quality
and grade, that Plaintiffs would receive such high quality and services throughout the
project and, in reality, the goods and services provided to the Plaintiffs were not of such
a quality or grade as promised by the Defendant.
COUNT I
BREACH OF CONTRACT
24. Paragraphs 1 through 23 are incorporated as if fully stated herein.
25. Defendant by its actions, or through its inactions, has failed to perform the
work contracted for by the Plaintiffs.
26. Defendant by its actions, or through its inactions, has failed to perform the
work contracted for in a proper and workman-like manner.
27. Defendant by its actions, or through its inactions, has breached its contract
with the plaintiffs.
28. Defendant by its actions, or through its inactions, has caused damage to the
Plaintiffs in excess of $60,000.
WHEREFORE, Plaintiffs Gerald A. Bennett and Jacqueline Smith Bennett
demand judgment against Defendant, Haubert Homes, Inc., for actual damages in an
amount of at least $60,000.
COUNT II
BREACH OF WARRANTY
29. Paragraphs 1-28 are incorporated as if fully stated herein.
30. Defendant expressly warranted its work to be of good quality and in
conformance with the contract at set forth on Page 3, Section 4.3, of the contract
attached hereto as Exhibit A.
31. Defendant by its actions, or through its inactions, has expressly breached its
warranty.
WHEREFORE, Plaintiffs Gerald A. Bennett and Jacqueline Smith Bennett
demand judgment against Defendant, Haubert Homes, Inc., for actual damages in an
amount of at least $60,000.
COUNT III
VIOLATION OF UNFAIR TRADE PRACTICES ACT
32. Paragraphs 1-31 are incorporated as if fully stated herein.
33. The Pennsylvania Unfair Trade Practices and Consumer Protection Law,
73 Pa. C.S. §201, et seq., defines as an unfair or deceptive act or practice:
(VII) Representing that goods or services are of a particular
standard, quality or grade, or the goods are of a particular style
or model, if they are of another; ....
(XIV) Failing to comply with the terms of any written
guarantee or warranty given to the buyer at, prior to
or after a contract for purchase of goods or
services is made; ....
34. The Defendant has violated the Pennsylvania Unfair Trade Practices and
Consumer Protection Law, 73 Pa. C.S. §201 (4)(VII), by Defendant's actions and
inactions detailed in paragraphs 1 through 22 above.
35. The Defendant has violated the Pennsylvania Unfair Trade Practices and
Consumer Protection Law, 73 Pa. C.S. §201 (4)(XIV) (XVI) and (XVII), by Defendant's
actions and inactions detailed in paragraphs 1 through 22 above.
36. Pursuant to 73 Pa. C.S. §201 et seq., Plaintiffs are entitled to treble damages.
WHEREFORE, Plaintiffs Gerald A. Bennett and Jacqueline Smith Bennett
demand judgment against Defendant, Haubert Homes, Inc., for actual damages in an
amount of at least $60,000, treble damages pursuant to 73 Pa. C.S. §201 et seq. in
amount of at least $180,000, plus court costs and attorney's fees.
Respectfully Submitted,
Date
~2T~ South Pitt Street
Carlisle, PA 17013
(717) 245-9688
VERIFICATION
I verify that the statements made in the foregoing Complaint are true and correct.
I understand that false statements herein are made subject to the penalties of 18
Pa.C.S. §4904 relating to unsworn falsification to authorities.
Date
15 Central Blvd., Camp Hill, PA 17011
(7!7) 761-7951 ~ FAX (7t7) 76! -4125
................ HAUBERT HOMES
RESIDENTIAL CONSTRUCTION AGREEI~EENT
DEVELOPMENT LOT
THIS AGREEMENT (hereinafter referred to as "Agreement") made the t~
day of ~ c~ in the year I qq'7 . by and between HAUBERT HOMES,
INC. (herein~& referred to as "Contractor") and
(hereinafter referred to as "Buyer').~
WITNESSETH that in cOnsideration of the mutual covenants and agreements
herein contained, and intending to be legally boUnd hereby, the parties hereto do agree to
the following terms and conditions:
1. Definitions. The following tem,s shall have the assigned me. anings for the
purposes of this Agreement:
Section 1. I. Contract Documents. The contract d6cuments condst oft_bls
Agreement Cmcluding the Specific and General conditions attached to the Agreement), any
drawings, and where applicable, the Radon Disclosure Addendum, specifications, plans,
schedules, amendments and change orders relating to the Agreement. These documents
constitute the entire contract b=iween the Contractor and Buyer, and shall not be
modified except by vvgiLLen amendment to the affected contract documents executed by
both the Contractor and the Buyer. Any and all 0ral discussions, understandings, and
agreements betwee_n the Contractor and the Buyer before the execution of the
Agreement which are not specifically covered by the Contract documents are void and are
not enforceable against either the Contractor or the Buyer.
2. Contract Work. The Contractor agrees to furnis~h all ,material~and labor
(the~"C, ontra t Work") Upo.n the ~rsperty ~ ~ ~
(thc 'Property"). The Contr/(ct Work shall be performed m accordance with Sche~le
1
"A", plans and specifications R~rnished b~' the Contractor and known and identified as
~ ~ ,~ ~-~t), duplicate copies of which have been
~.l~d ~;, ts~ Co.*.-~,-tor .,,a +~'~'"B-.-~.' he-Co ~-'~ de!ivere~ to both parties at the time
o~.~,r bc,[ore~e~e~utio.n ~ this ~Agreemen~.~The Bllyernshilllo, ay .to the Coutractor~e sum
"Contrict Price") for tile Contract Worl{ in accordance with p'aragraph'$ subjOct to
additions and/or reductions by change order as provided in paragraph 5.4 of the
A~eement.
THE CONTRACT PRICE IS BINDING UPON CONTRACTOR ONLY IF
THE CONTRACT WORK IS COMMENCFD WITHIN SIXTY (60) DAYS AFTER
TH~ DATE OF THIS AGLOW. IN TI~ EVENT THE CONTRACT WORK IS
NOT COMMENCI~7~ WITHIN SIXTY (60) DAYS FROM THE DATE OF THIS
AGRa, THE CONTRACTOR, AT ITS SOI.F OPTION, MAY TERMINATE
THIS AGREEMENT AND NEGOTIATE A NEW CONTRACT wrrH THE BUYEK
3.
Obligations
ofBuye .,,pp~r. ~I .
3.1. Buyer is purc~g tl~Lot fi.om Developer on which Contractor is to build
the home. Buyer holds harness and indemnifies Coni~actor fi.om any costs ofliabitities
arising fi.om Buyer's con~act ~th Developer. '
3.2. Buyer acknowledges responsibility for and assumes all risk of encoUntering
subsurface conditions of the land which may arise before commencement, during, or aider
completion of construction by Contractor.
3.2. I. Buyer'acknowledges the fight to re~nln engineering services, at Buyer's
expense, to investigate the Property for suitability for construction. Whether or not such
services are engaged, Buyer .~h~l! be responsible for any and all costs arising fi.om
conditions of the land, including but not limited to: additional excavation and blasting,.
additional reinforced foundation work and suitable fill material. Buyer shall hold
Contractor harmless of aforementioned costs.
3.3. Buyer sh~ll review the Schedule "A", plans and specifications submitted by
Contractor and shall give prompt written notice to the Contractor of any fault or defect
in the said plans and specifications.
3.4. Buyer shall have furnished to the Contractor reasonable evidence
satisfactory to the Contractor, prior to starting work under this Agreement, that sufficient
funds are available and committed to pay the Contract Price.
3.5. h shall be the responm"oility of the Buyer to approve the Contractor's
placement of the Contract Work on the Property including locating the lot comers,
cacvauons ann omer oata necessary/or ttus purpose. Ii'the Buyer fails to provide the
Contractor with directions to locate the Contract Work on the Property prior to the
time that the Contractor commences the Contract Work, the Contractor may place the
Contract Work on the PropeWj but shall be released, indemnified and held harmless by
the Buyer for any liability under the Agreement or otherwise for any claim, demand or
cause of action whatsoever arising out of the location of the Contract Work on the
Property.
3.6. The Buyer shall be responsible for assuring that all public utilities and/or
municipal services required during completion of the Contract Work as well as for use of
the Property for residential purposes have been ex~ended to the Property right-of-way line.
If the Property will be served by either a private well or aB, on-lot sewage disposal system,
the Contractor shall have no liability to the Buyer and the Buyer specifically indemnifies,
releases and holds harmless the ContraCtor fi.om and against any claim, demand or cause
of action whatsoever arising out of the acceptability or suitability of the private well
and/or on-lot sewage disposal system including but not llmked to: the suitability of the
water supply for human consumption, or the adequacy of the water supply as well as the
soil suitability, soil absorption, maintenance and operation of the on-lot sewage disposal
systanx
4. Obligations of the ContrnGor.
4.1. The ContrnCtor w~l provide 911 construction supervision, inspection, labor,
materials, tools, equipment, and subcontracted items necessary for the execution and
completion of the Contract Work.
4.2. The Contractor will pay all sales, use, gross receipts and similar taxes related
to the Contract Work to be provided by the Contr~ctor,'whiCh taxes lmve been legally
enacted at the time of execution of this Agreement.
j~"4.3. The Contractor warrants to the Buyer that aH materials and equipment
incorporated into the Contract Work ~ess otherwise specified, and that aH.~'°L/
Contract Work w~l be ofg~___~ qu~'_ '..~t, m conformance with the corO.~act documents.
4.4. The Contractor shaH at all times keep the premises reasonably free fi.om the
accumulation of waste materials or rubbish caused by the operations of the Contractor.
At the completion of the Contract Work, the Contractor shall remove'all tools,
co.h-action eqilipment, machinery and surplus materials, and shall leave the work area
"broom" clean or its equivalent.
4.5. The Buyer hereby authorizes, directs and appoints the Contractor to act as
the Buyer's agent and attorney-in-fact in the Buyer's name and at the Buyer's expense to
procure aH applicable per.ts and approvals. The Buyer shall cooperate with the
Contractor to the extent necessary to acquire aH necessary permits and approvals
providing the Contractor with aH ini~rmation required to complete the forms and
applications. The Buyer releases, indemni6es and holds harmless the Contractor with
respect to any claim, demand of liability whatsoever arising out of the Contractor's
failure to obtain any permit or approval not specifically listed by the Buyer.
5. Payment of Contract Price, Progress ?aTment3.
· 5.1. As compensation for the completion of~he Contract Priqe, th~ B~.~rl
to pay the~Contra~or, in ¢~r~funds, the Contr.~act Price of-fk.~~- ..[~/
"~g~a~'2'~f ~i ~on~ct ~d ~ t~s p~aph 5).
5.2. The Contract Price shsll be p~d by ~e Buyer to ~e Con.actor ~cord~g
to ~e fo~o~g Draw Sched~e upon ~nen app~cafiom for pa~em ~b~ed by ~e
Con~or to the B~e~
0 % of the Contract Price upon the execution of this Agreement;
~ % of the Contract Price upon the completion of the foundation;
~o% of the Contract Price when the roof is completed, when framing and
sheathing are completed and when all window~ are set in place;
$;~A of the Contract Price when the i,~all~tlou of electrical and plumbing
systems, in rough form, hie completed;
~ % of the Contract Price when the interior drywall is sanded and ready for
painting;
~0_.% of the Contract Price upon substantial completion of the building as
defined in the Agreement or at the time of occupancy of the Contract
Work by the Buyer.
This Draw Schedule may be mo'lifted in w~iilng by
the
BAyer
alld
Contractor
to
conform to th~ Schedule of Advances required by the Buyer's construction mortgage
lender. '. ~.~. .
' '~':- Rems of
' 5.3. The Contract Price incl~es estin)at~r allowances lot ce, ua, .
work as more specifcally set forth on ~,hed~ ~ATMattached hereto and made a part
hereof. THE BUYER UNDERSTAHD~x,~IHD AG~I~S THAT.TITE COI~'RACT
PRICE IS SUBIECT TO DECREASE~I~CREASE BASv. r~ UPON THE ACTUAL
" The Contract Pri,ce shall be subject to change if the Buyer's lot conditions
require additiona}, foundation work in excess of the plans and specifications, including
5.4. A Change Order i~ a wrinen orde. to the Contractor ~igned by ~he Buyer
~45i' his authorized agent and issued after the execution ofthis Agreement, authorizing a
change in the Contract Work un. or an acljustmem m the Comrae~ l~nce, or me
Contract Tim~.
5.5. The Buyer, without invalidating the Agreement, may order changes in the
Contract Work consistin_~ of additions, deletions, or modi~,:atlo~s. ~-:e Co.utrac~ l~-ic~
and the Contract Time shall, where appropriate, be adjusted accordingly. All such
changes in the Contract Work shall be authorized by written Change Order signed by
the Buyer and the Contractor's representative. No change order work shall be
commenced until a change order signed by Buyer is received by Contractor. Buyer shall
make payment in advance_....f~.r all Change Order work. - --
5.6. The Contract Price, Contract Work and the Contract Time may be
changed only by Change Order or as otherwise specified in this Agreement.
5.7. lt!~,_~st or Credit tO the Buyer from a change in the Contract Work shall be
d~eterrnin, e..d by muthal _agreement., ~ .....
5.8. Finai payment constituting the unpaid balance of the Contract Price as
adjusted by Change Order shall be due and payable when the Contract Work is
delivered to the Buyer, upon substantial completion, or prior to the Buyer occupying the
home, whichever event first occurs.. If there should remain minor items to be completed,
the Contractor and the B_~uyer shall jointly list~uch item.~ a~er a 'Aoial~"waik-throu~h"
_inspeeti.on of the Contract Work (hereinafter referred t~-~ ~su~~.
of such ~ems by the Contractor sh~l! not ex~end Substantial~'CYmpl~ol~fthe
Work nor delay payment of the balance of the Contract Price. The Buyer sbs~t not
occupy the Contract Work until the Contract Price h,s been paid in full.
/UoYrr5.9..The mal~. g. of fins! payment shall constitute'a waiver of all claims by the
except, t~ose..among fi.om (1) unsettled Hens, (2~ faulty or U~fective Contract
appearing within one (1) year a~er substantial compl~on, (3) failUre o~-'-~ m~'
Contract Work to comply with the requirements of the co-i~sct documents, o~6~r (4)
cgm01e~al-oi[~l~ Acceptance of final payment shall constitute a waiver of
claims by the ContractorXexcept those previously m~de in writing and still unsettled.
Occupancy of the home by the Buyer shall consliiUte acceptance of same by the
Buyer, and the Contractor, except as provided shove, shall thereafter he under no
obligation whatsoever to the Buyer relative to the construction of said home.
6. Time of Performance4 Subs .t,qntial Completion.
6.1. The Contract Work to be performed under the Agreement shall be
commenced on or about fu°~een (15) days at, er the date the Buyer has fuifilled all
obligations required by Paragraph 3 of the Agreement, and except as otherwise provided
or permitted by the Agreement shall be substantially completed not later than/.~"0 days
Completion.
6.2. The date 0f Substantial Comp!etlon of the Contract Work is the date when
construction is suffici~y completed in accordance with the Plans and Specifcations so
the Buyer can occupy the Contract Work. Warranties called for by the Agreement shall
commence thee of Substantial Completion.
6.3. If the Contractor is delayed at any. time in the progress of the Contract
Work by any act, failure or neglect of the Buyer or by changes ordered in the Contract
Work or by labor disputes, fire, unusual delay in transportation, adverse weather
conditions not reasonably anlicipated, unavoidable ca.w~6es, by any action or inaction of
a subcontractor or any contractor retained directly by Buyer, or any other cause beyond
the Contractor's controL, or a delay authorized by the Buyer, then the Date for
Substantial Completion shall be extended for the period of such delay.
6.4. Issuance of occupancy permits by the appropriate.governmental agency shall
be deemed by Buyer and Contractor as conclusive proof of compliance with all codes
and ordinances then in effect in the location of the Property. Buyer's acceptance of the
said occupancy pr~,,,;ts shall conciliate a complete waiver and release of any el~im based
upon alleged fagure to comply with any such codes and ordinances.
7. Insurance.
7.1. Indemnity. The Contractor agrees to indemnify and hold harmless the
Buyer from all claims for bodily injury and property damage (other than the Contract
Work itself and other property in-tared under Paragraph 7.2) that may .arise from the
Contractor's operations under this Agreement subject to .the llm~tatlons of Paragraph
below.
7.2. Contractor's Liability ln.~alrance. The Contractor shall purchase and
malnt~irt tach in-mrance as ~ protect it from claims under Workmen's Compensation
acts. and other employee benefit acts, from claims for dnrn~es because ofbodily injury,
including death, and from claims for damaSes to property which may arise out of or result
from performance of the Contract Work This insurance shzll be written for not less than
any llmi~s of llz~dity required by law and shall include contractual liability insurance as
applicable to th9 contractor's obligations under this Agreement.
7.3. Buyer's Liability ln.mrance. The Buyer shnll be response'hie for purchasing
and mnlm~i~g liability insurance and, may maintain such insurance as wgl protect agsln.~
claims which m~y arise from performance of the ,Agreement and circumstances arising
from Paragraph 8 below.
7.4. BuYer's Property !n'~U'ance. The Buyer ~ll purch_~ and m~i~taln
property insurance upon the entire Contract Work to the full insurable value thereof.
Subcoai~actors and Sub-subcontractors in the Contract Work and sh~!! in.sure against the
pen~s of ftre, extanded coverage, vandalii~ and malicious mischief. Any insured loss is to
be adjusted with the Buyer and made payable to the Buyer as trustee for the insureds as
Buyer shall provide a Copy of all policies to the Contractor prior to the commencement
of the Contract Work. The Buyer and Contractor waive all rights agai~ach other
for damages caused by fire or other peri. Is to the extent covered by insurance tlrovided
under this paragraph.
8. Buyer's Access to Property During Construction.
8.1. Miscellaneous Provisions. Completion of~e Contract Work within the
Contract Time is expressly conditioned upon the Contractor being provided with free
and uninterrupted access to the Property as well as the flee and uninterrupted opportunity
to perform the Contract Work. The Buyer specifically covenants and agrees to not
interfere with or ob~u uct the Cout,~ctor's performance of the Contract Work under the
Agreement.
The Buyer shall have the right to periodic and reasonable inspections of the
Contract Work but shall direct all questions and com~r~mlcations concernin$ the ·
Contract Work to the Contractor's Project Manager and _~hnll at no time communicate
with or interfere with the Contractor's employees and subcontractors while on the
premises or otherwise.
$.2. If Buyer is to personally perform or independently subcontract work on the
.Con,ct Work, all such work ~ntl be expressly approved by and scheduled with
Contractor's Project Manager.
8.3. In order to obtain Contractor's approval to personally perform or
subcon~act work under 8.2, Buyer, Buyer's agents, subco-~actors or invitees shall
obtn~- and furnish proof of valid liability i,~urance specifically -~i-g Contractor as an
additional i,.~ured and prov~-g for coverage indemnity and def~ of Contractor in the
event Buyer, Buyer's agents, subcouuactors or invitees are injured or ~Fer proPen'y
damage while on the Property.
9. Exclusion of Warranties.
9.1. The Buyer hereby acknowledges that Contractor has neither made nor is
making hereby any warranties other t_h~, .those expressly coot~ined in thi~ Agreement.
THE BUYER HEREBY ACKNOWV.~X~"ES AND AGB~F-S THAT ANY
WARRANTIES OF HABITABH.rI'Y AND/OR FITNESS FOR ENTENDp-r~ USE
WHICH MIGHT OTHERWISE BE IMPLIED BY LAW ARE AGREED TO BE
SPECIFIC,at.LY EXCLUD~.D FROM THIS AGI~k-k'MENT.
THE CONTRACTOR MAKES AND THERE EXISTS NO OT~ER
WARRANTIES OR REPRESENTATIONS, WRITTEN OR IMi~LTh'~, CONCERNING
THE CONTRACT WORK OR ANY OTI-IER SUBJECT MATTER OF THIS
AGREEMEI~.
Specifically, the Contractor disclaims any warranty or represemation concerning
(a) chips and cracks ofnonstructural cause appearing in concrete floors and masonry
wails, (b) shrinking and twisting of lumber caused by drying of lumbers, (c) movement of
the structure caused by natural settling after completion of conshuction, and (d) moisture
in the structure basement.
10. Limitation of Remedies.
With regard to any cia/ms by the Buyer resulting from faulty or defective work as
set forth here/n or with regard to faikn'e of the Contract Work to comply with the
requLrcments of the contract documents, the remedies of the Buyer in such cases shah be
limited to repair or replacement of the defective or non-conforming work by the
Contr~. ctor at the Contractor's expense. In the event Contractor is not able to or is ·
denied access by Buyer to conduct repair or replacement, Buyers are limited to
Contractor's actual cost of repair or replacement plus reasonable Contractor's "mark-
up." Buyer expressly waives any claim for consequemiai damages such as loss of use,
reduction in market value or similar losses.
11. Default by Buyer.
If the Buyer shah default hereunder prior to the beginning of Contract Work,
Contractor shall retain the money paid by Buyer as liquidated damages; and this
Contract shall thereupon terminate. If the Buyer fags to mnke a Progress Payment to
Contrnctor as herein provided through no fault of the Contractor, the Contractor may,
upon seven (7) da~s' w~'itten notice to the Buyer, terminate the Contract and recover
from the'Buyer payment for all Contract Work completed and for any proven loss
sustained upon any materials, equipment, tools, and cor~haction equipment and
machinery, including reasonnble profit and damages and reasonable attorneys' fees and
costs.
12. ttrnnsfer Tax on Imp~~.., ....
· .ii~,:~'~!~i:~7.'.i.~ ...........
In the event the Penn-~3tl~ania ~t~' 6fRevenue Cnerdn the "Depn,'tment')
nnposes tran~er tax .on the value~oi~.o~.~ .e~m=.~..c. on~/~ octed on the lh'operty pursuant
to the Construction A~ement,'the ~i.~:i~i~.sliail be paid equ~l, y bY Contractor
and Owner within the t~me required ~'t~'.e..~~t. In the event the Departmem
~sesses any interest and penalties on th~"i~d~:~oing transfer tax assessment, Contractor
~,~,~ ,w~ ~vw,=~' ~mizuc~ a'om any SUCh interest aha penm~es vota regard to any
assessment by the Depa~haent pursuant to 72 P.S., paragraph 8101(c). Owner agrees to
cooperate with Contracto¥ in defense of such a tax assessment should Contractor elect
to contest the assessment.
13. General Provisions.
13.1. All rights and liabilities herein ~Ven to, or imposed upon, the respective
~arties hereto shall emend to and bind se?eral an~e_~s, executors,
~es~ors and assigns of said parties; and hethe~"i~-'fii3'f~ than one
Buyer, they shall all be bound jointly and severally by the terms, covenants and
agreements herein, and the word "Buyer" or "Buyers" shall be deemed and taken to mean
each and every person or party mentioned as an owner herein, be the ~ame one or more;
and if there be more than one Contractor, they ~ be bound jointly and severally by the
terms, covenants and agreements herein, and the word "Contractor" or "Contractors"
shall be deemed and taken to mean each and every person or party mentioned, as a
contractor herein be the same one or more.
13.2. Neither the Buyer nor the Contractor shall assign his interest in this
Agreement without the written consent of the other except as to the assignment of
proceeds.
13.3. This Agreement shall be governed by the law in effect at the location of the
Property.
13.4. The parties hereto hereby warrant that they have read and are fully familiar
with the terms and condifi~m of ~,hi~ ,~eement and agree.to be legally bound hereby.
The parties further acknowledge that this is a negotla~.~l agreement and that they have
each had the opportunity to co ,suit with' '
coadifions. ' ~ legal'counsel regarding the aforesaid ret,us and
COh'TRA~o~
*Division Manager
*NOTE: Both signatures required by Contractor to validate Sales Contract.
SHERIFF'S RETURN - REGULAR
CASE NO: 2002-00739 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BENNETT GERALD A ET AL
VS
HAUBERT HOMES INC
HAROLD WEARY , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
HAUBERT HOMES INC the
DEFENDANT
, at 1110:00 HOURS, on the 20th day of February , 2002
at 15 CENTRAL BLVD
CAMP HILL, PA 17011
by handing to
SHELLY ROLLINGS, SECRETARY
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 8.97
Affidavit .00
Surcharge 10.00
.00
36.97
Sworn and Subscribed to before
me this 27.~ day of
So Answers:
R. Thomas Kline
02/21/2002
ROBERT J. MULDERIG
By:
GERALD A. BENNETT and
JACQUELINE SMITH BENNETT,
Plaintiffs
HAUBERT HOMES, INC.,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
:
NO. 02-739 CML TERM
:
: CML DMSION - LAW
:
: JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO:
Gerald A. Bennett and Jacqueline Smith Bennett, Plaintiffs
c/o Ron Turo, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
You are hereby notified to plead to the within document within twenty (20)
days after service hereof, or a default judgment may be entered against you.
David A. Fitzsimons, Esquire
Sup. Ct. I.D. #41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Defendant
Haubert Homes, Inc.
Date: March 12, 2002
GERALD A. BENNETT and
JACQUELINE SMITH BENNETT,
Plaintiffs
Vo
HAUBERT HOMES, INC.,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
:
NO. 02-739 CML TERM
:
: CML DMSION - LAW
:
: JURY TRIAL DEMANDED
DEFENDANT'S HAUBERT HOMES, INC.'S
PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT
Defendant Haubert Homes, Inc. ("Haubert Homes"), by and through its attorneys,
Mette, Evans and Woodside, hereby files the following Preliminary Objections to Plaintiffs'
Complaint:
I. This is an action arising from disputes between home owners and contractor
over the construction of a residence located at 1063 Country Club Road, Camp Hill,
Cumberland County, Pennsylvania 17011.
2. The home was substantially completed and certificate of occupancy granted
and the Plaintiffs had been resident in the home since 1998.
3. Plaintiffs, through their counsel, presented a list of demands relevant to
completion of the property, which list was substantially completed by the Defendant
during the 2001 calendar year.
4. Plaintiffs' Complaint, as phrased against Haubert Homes, contains three
Counts. Count I - breach of contract; Count II - breach of warranty; and Count III - under
the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa.C.S. §201 et
seq.
5. Plaintiffs' Complaint, on its face, describes a dispute between owner and
builder and in no respect properly adduces a claim under the Consumer Protection law.
DEMURRER
(Pa.R.C.P. t1028(a)(4))
6. The averments of the preceding paragraphs are reincorporated by reference
as if fully set forth.
7. Plaintiffs' Complaint claims that paragraphs 1 through 22 of the Complaint
establish a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection
law.
8. Pa.R.C.P. 1019(a) requires the Plaintiff to state the material facts upon which
a cause of action is based.
9. Plaintiffs have failed to allege material facts that establish egregious,
unconscionable or outrageous behavior of the type contemplated under the aforesaid
statute and therefore have failed to state a cause of action for which the requested relief
can be granted.
WHEREFORE, Defendant prays that this Honorable Court will dismiss Count III. of
Plaintiffs' Complaint.
MOTION FOR MORE SPECIFIC PLEADING
(Pa.R.C.P. 1028(a)(3)
1. Plaintiffs' Complaint recounts in summary fashion lists of alleged defects
without pleading with required specificity the specific defects the areas of the property in
which Plaintiffs' claim defects exist.
2
2. While under normal pleading expectations, such use of lists might arguably
be excusable, because Plaintiffs and Defendant negotiated and Defendant performed a
considerable amount of work in the home prior to the commencement of suit, Defendant is
unable to adduce from the Complaint whether Plaintiffs' allege certain defects are:
a. Those identified and allegedly never fixed by Defendant;
b. Whether areas that Defendant did attempt to address were allegedly
improperly addressed, or
c. Whether, in fact, Plaintiffs have now identified entirely new defects
which had not been raised with Defendant as late as the 2001 calendar
year.
WHEREFORE, Defendant requests that the Court will direct Plaintiffs to file a
pleading .with the appropriate level of detail, or alternatively, strike all vague, insufficiently
detailed allegations and dismiss any count which fails upon the striking of the pertinent
allegata.
Respectfully submitted,
By:
METTE, EVANS & WOODSIDE
David A. Fitzsimons, Esquire
Sup. Ct. I.D. #41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Defendant
Haubert Homes, Inc.
Date: March 12, 2002
289256
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing document upon
the person(s) and in the manner indicated below, which service satisfies the requirements
of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United
States Mail, Harrisburg, Pennsylvania, First Class Mail, postage prepaid, as follows:
Ron Turo, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
METTE, EVANS & WOODSIDE
David A. Fitzsimons, Esquire
Sup. Ct. I.D. #41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Defendant
Haubert Homes, Inc.
Date: March 12, 2002
289256
Gerald A. Bennett and
Jacqueline Smith Bennett
Plaintiffs
VS.
Haubert Homes, Inc.
Defendant
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY
CIVIL DIVISION - LAW
:
: NO. 02-739 CIVIL TERM
PRAECIPE FOR LISTING CASE FOR ARGUMENT
2 o
State matter to be argued (i.e., plaintiff's motion for new trial,
defendant's demurrer to complaint, etc.):
Defendant's Preliminary Objections to Plaintiff's Complaint.
Identify counsel who will
(a) for plaintiff:
Address:
argue case:
Carol L. Cingranelli,
Turo Law Offices
28 South Pitt St.
Carlisle, PA 17013
Esquire
(b) for defendant:
Address:
David A. Fitzsimons, Esquire
Metre, Evans & Woodside
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
I will notify all parties in writing within two days
has been listed for argument.
that this case
4 o
Argument Court Date:
May 22, 2002
Dated:
GERALD A. BENNE'Fr AND
jACQUELINE SMITH BENNETT,
PLAINTIFFS
· THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
HAUBERT HOMES, INC.,
DEFENDANT
AND NOW, this _
· 02-0739 CIVIL TERM
ORDER OF COUR'r
I_~. day of June, 2002, the preliminary objections
of defendant to plaintiffs' complaint, ARE DISMISSED.
Carol L. Cingranelli, Esquire
For Plaintiffs
David A. Fitzsimons, Esquire
For Defendant
:saa
GERALD A. BENNETT and
JACQUELINE SMITH BENNETT,
Plaintiffs
HAUBERT HOMES, INC.,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-739 CIVIL TERM
CIVIL DIVISION - LAW
JURY TRIAL DEMANDED
ANSWER WITH NEW MATTER
AND NOW COMES, the Defendant Haubert Homes, Inc. by its attorneys, METTE,
EVANS & WOODSIDE and makes the following responses to the Plaintiff's Complaint:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted in part and denied in part. It is admitted only that on or about July 8,
1997, the parties entered into a construction agreement a copy of which is attached
to the Complaint as Exhibit A. It is denied that a schedule of agreed upon options
was included with the contract attached as Exhibit A.
Denied. The averments of Paragraph 6 constitute Conclusions of Law to which
no responsive pleading is required by the Pa. R.C.P. To the extent a response is
deemed required, it is denied that the Plaintiffs have fulfilled all the provisions of
the agreement on their part. To the contrary, Plaintiffs caused entirely, or
contributed materially to, the difficulties of which they complain in their
Complaint. Plaintiffs were consistently, and throughout the course of the project,
indecisive and late with decisions regarding selection of products and materials
and, as of their occupancy of the property, had not made selections of certain
items for which they now claim damages.
Admitted.
Denied. The contract as an instrument in writing speaks for itself. To the extent
the averments of Paragraph 8 are inconsistent therewith they are denied with strict
proof demanded at trial.
Denied. The averments of Paragraph 9 constitute Conclusions of Law to which
no responsive pleading is required by the Pa.R.C.P. To the extent a response is
deemed required, Defendant attempted at all times to complete the provisions of
the agreement on its part. These efforts included agreeing to address a list of
items identified by the Plaintiffs and transmitted by their counsel. Even upon
completion of that list, the Plaintiffs failed to complete negotiations on any
outstanding items but instead, identified and forwarded more, previously
unidentified, alleged issues that they wished to have the Defendant address.
Despite all of Defendant's efforts to accommodate the Plaintiff's demands,
Plaintiffs filed suit.
10. Denied. The averments of Paragraph 10 constitute Conclusions of Law to which
no responsive pleading is required by the PaR.C.P. To the extent a response is deemed required,
the specific items enumerated in sub-paragraphs 10 (a)-(k) appear to be items of complaint
enumerated for the first time on September 6, 2001, and therefore untimely in accordance with
Paragraph 5.9 of the contract attached to the Complaint. By way of further response:
bo
C°
do
go
A knee light is installed on the front brick work steps leading from
the house entryway. Upon infonnation and belief, the knee light
may have been installed or relocated at the direction of Plaintiffs
by a third party.
Bathroom light was not installed at the time of settlement because
the Plaintiffs had repeatedly failed to select a light for installation.
Subsequent offers by the Defendant to provide an installation were
not accepted by the Plaintiffs during the course of negotiations.
It is admitted that decorative brick on the comers of the front
facade of the building were not installed. This occurred partly
because of the Plaintiffs consistent failure during the course of
construction to select in a timely fashion a brick for the installation.
When the masonry subcontractor performed the masonry work,
these decorative elements were overlooked. The Defendant had
offered to credit the Plaintiffs the cost for the brick that was not
installed because saw-cutting the existing Dryvit finish and
inserting the decorative brick members would be unreasonably
expensive and unnecessary under the circumstances.
Soundproofing of walls, i.e. the installation of fiberglass bats in
interior walls, did in fact occur.
All cathedral ceilings reflected in the plans and agreed upon
between the parties are installed.
The microwave specified in the construction of the kitchen is
vented interior.
The four foot extension to the great room, was incorporated and
built pursuant to a change order before the development of the final
plan.
h. To the knowledge of the Defendant all molding called for in the
contract was installed.
jo
ko
It is not known from the description in the Complaint what is
meant by a "basement stoop" but, to the knowledge of the
Defendant, all appropriate construction elements were installed.
Upon reasonable investigation, Defendant is unaware of a failure to
install a toilet. To the Defendant's knowledge all toilets were
installed in all powder rooms.
The heat system for the house was not contracted to be a zoned
system.
11. Denied. The averments of Paragraph 11 constitute conclusions of law to
which no responsive pleading is required by the Pa.R.C.P. To the extent a
response is deemed required, the items in Paragraph 11 (l)-(t) appear to be
all items which were examined and, where appropriate, remedied by the
Defendant during the course of the punch list and other corrective work
conducted under the supervision of the Haubert Homes project manager
and with the involvement of the Plaintiffs' counsel between May, 2001
and July, 2001. Any item that was not specifically addressed at that time
period was not addressed because, upon the investigation of the contractor
and its representatives, it was determined that there was no defect. These
comments were conveyed to Plaintiffs
12. Denied. The avemlents of Paragraph 12 constitute conclusions of law to
which no responsive pleading is required by the Pa.R.C.P. To the extent a
response is deemed required, it is specifically denied that the Defendant
has repeatedly failed, repeatedly refused, or still refuses to cure breeches
despite Plaintiffs repeated demands. To the contrary, the Plaintiff's
13.
14.
demands and allegations relating to the construction of the home
demonstrate a clear documentable pattern of escalating and increasing
repair estimates, despite efforts by the Defendant to address the Bennett's
concerns. These efforts culminated in Hanbert perforating an agreed upon
list of repairs, some of which were not even the result of any improper
workmanship or material failure, but were'performed in a good faith effort
to resolve the Plaintiffs' concerns. Despite those efforts, the Plaintiffs'
alleged concerns and allegations of defects have multiplied and have
resulted in this litigation.
Denied. The averments of Paragraph 13 constitute conclusions of law to
which no responsive pleading is required by the Pa.R.C.P. To the extent a
response is deemed required, it is tree that certain items cannot or should
not be completed. For example, the installation of the omitted decorative
brick'work can not b,e completed because to perform such work is
unnecessary and would result in economic waste and could even cause
currently unforeseen problems for the Plaintiffs.
Admitted in part and denied in part. It is admitted only that th~ Defendant
is aware that, during the course of the steadily escalating claims and
allegations, Plaintiffs have obtained estimates from contractors.
Defendant believes and avers that those estimates include costs of repair
far in excess of any reasonable claim for damages. It is further specifically
denied that any incompletion or alleged need for repair are the result of
actions or inactions of the Defendant. On the contrary, the greater balance
of the items complained of by the Plaintiffs have either already been
addressed by Defendant, are untimely raised and/or unrelated to any
performance issue involving Defendant.
15. Denied. The avemients in Paragraph 15 constitute conclusions of law to
which no responsive pleading is required by the PaR.C.P. To the extent a
response is deemed required, it is specifically denied that the so-called
breaches in fact occurred, or that a reasonable cost of remedying the items
enumerated by the Plaintiffs, if such costs were the result of any breech, is
$60,000.
16. Denied. The avemients in Paragraph 16 constitute conclusions of law to
which no responsive pleading is required by the PaR. C.P. To the extent a
response is deemed required, it is specifically denied that the Defendant
breached its contract with the Plaintiffs or that the Plaintiffs have been
damaged in an amount in excess $60,000.
17. Admitted in part and denied in part. It is admitted only that during design
meetings the Plaintiffs would have been assured that the heating system
was among the best in the business and that there should not be any
problems with the heating system. It is specifically denied that the single
zone heating system is a "problem". It is also specifically denied that the
heating system was poorly installed and that temperatures cannot be
properly controlled. On the contrary, the system contracted for is a single
zone system, is properly installed and controlled by thermostat.
18. Denied. The avem~ents in Paragraph 18 constitute conclusions of law to
which no responsive pleading is required by the PaR.C.P. To the extent a
response is deemed required, the Plaintiffs' home is a custom design
19.
20.
which included not only the integration of two floor plans, but also the
integration of the extension to the great room and other changes that were
agreed upon between Defendant and Plaintiffs during the custom design of
the home. With regard to the allegation that the Plaintiffs were informed
of a deficit involving the cathedral ceiling height after the house was fully
framed, wiring completed and drywall partially placed; upon reasonable
investigation, Defendant is without knowledge sufficient to form a belief
as to truth of this averment which is denied with proof thereof demanded
at trial.
Admitted in part and denied in part. It is admitted that during the custom
design portion of the project the Plaintiffs signed a change order to add an
additional four (4) feet to the great room. It is denied that the Plaintiffs did
not receive the addition requested. The addition was incorporated as per
the change order.
Denied. The avem~ents in Paragraph 18 constitute conclusions of law to
which no responsive pleading is required by the PaR.C.P. To the extent a
response is deemed required, the design of the house was a custom design
done with the cooperation, input and direction of the Plaintiffs. Bedrooms
and bathrooms were indeed placed with consideration for noise conduction
near the main living areas of the home. However, the Plaintiffs also
insisted upon and received two (2) story height cathedral ceilings in the
family and great rooms which open to bedroom hallways on the second
floor. Plaintiffs also selected hardwood flooring and various other non-
absorbent finish materials and have decorated their home in a manner
which may allow for the conduction of sound. It is specifically denied that
the Defendant contracted to "soundproof" the house. Batting was
installed in interior walls where appropriate and necessary to reduce
conduction of sound between walls. It is further denied that the house
actually enhances and conducts sound.
21. Admitted in part and denied in part. It is admitted that numerous
discussions occurred between Plaintiff and Defendant concerning the
installation of brick exterior. Many of those discussions involved the
Defendant's repeated requests that the Plaintiffs would make final and
timely decisions on the brick. A timely decision was not made. Partly as
a result of the late decision making by the Plaintiffs, there was an
oversight by the sub-contractor installing the brick work on the property
and the decorative quions on the front facade of the Dryvit exterior of the
house were not installed. Defendant has deteri~ained and advised the
Plaintiffs; and for some time period during negotiations Plaintiffs had
agreed, that to saw-cut the Dryvit to install the brick was an unnecessarily
expensive remedy and Defendant had offered to plaintiffs to credit
Plaintiffs for the brick that was indeed ordered and never utilized on the
decorative quoins. Plaintiffs' response to that offer was this lawsuit.
22. Admitted in part and denied in part. It is specifically denied that the
Defendant holds itself out as a "sophisticated expert in home
construction". However, it is admitted that the Defendant does consider
itself to be a builder of superior homes. It is denied that the Plaintiffs'
reliance upon statements, recommendations and suggestions from the
23.
Defendant ultimately led to alleged losses claimed by Plaintiffs. To the
contrary, in many instances Plaintiffs' failure to follow the
recommendations and suggestions of the Defendant, their failure to make
timely selection or appropriate selection of products and finishes and their
unreasonable position and expectations created the problems of which they
now complain.
Denied. The averments in Paragraph 23 constitute conclusions of law to
which no responsive pleading is required by the Pa.R.C.P. To the extent a
response is deemed required, the contract attached to the Plaintiffs'
Complaint as Exhibit A and, in particular, Section 4.3 of the contract are
referenced in response thereto.
WHEREFORE, Defendant, respectfully requests that this Court dismiss Plaintiffs'
Complaint with prejudice and enter judgment in its favor and against the Plaintiffs, together with
an award of such costs, interest and other relief as the Court deems just and reasonable.
COUNT I
BREACH OF CONTRACT
24. The averments of the preceding paragraphs are incorporated by reference as if
fully set forth herein.
25. Denied. The averments of Paragraph 25 constitute conclusions of law to which no
responsive pleading is required by the Pa.R.C.P.
26.
27.
28.
Denied. The averments of Paragraph 26 constitute conclusions of law to which no
responsive pleading is required by the Pa.R.C.P.
Denied. The avem~ents of Paragraph 27 constitute conclusions of law to which no
responsive pleading is required by the Pa,R.C.P.
Denied. The averments of Paragraph 28 constitute conclusions of law to which no
responsive pleading is required by the Pa.R.C.P. To the extent a response is
required, it is specifically denied that the Defendant by any action or inaction has
caused damage to the Plaintiffs, and if the Plaintiffs have suffered any damage, it
is as a result of their own inaction or unreasonable expectations, and in any event,
in no respect do the damages of the Plaintiffs reasonably approximate $60,000.
WHEREFORE, Defendant respectfully requests that this Court dismiss Plaintiffs'
Complaint with prejudice and enter judgment in its favor and against the Plaintiffs, together with
an award of such costs, interest and other relief as the Court deems just and reasonable.
COUNT II
BREACH OF WARRANTY
29. The averments of the preceding paragraphs are incorporated by reference as if
fully set forth herein.
30. Denied. The averments of Paragraph 30 are denied to the extent that they seek to
quote the contract which, being an instrument in writing speaks for itself. To the
extent that the averment of Paragraph 30 is inconsistent therewith, it is denied. By
31.
way of further response, Paragraph 4.3 of the contract was complied with by the
Defendant both during the course main construction and during subsequent
negotiated efforts to remedy and resolve concerns of the Plaintiffs.
Denied. The averments of Paragraph 31 constitute conclusions of law to which no
responsive pleading is required by the Pa.R.C.P.
WHEREFORE, Defendant, respectfully requests that this Court dismiss Plaintiffs'
Complaint with prejudice and enter judgment in its favor and against the Plaintiff, together with
an award of such costs, interest and other relief as the Court deems just and reasonable.
COUNT III
VIOLATION OF UNFAIR TRADE PRACTICES ACT
32. The avcn,ents of the preceding paragraph are incorporated by reference as if fully
set forth herein.
33. Denied. The avem~ents of Paragraph 33 constitute conclusions of law to which no
responsive pleading is required by the Pa.R.C.P. To the extent a response is
required, the Pennsylvania Unfair Trade Practices and Consumer Protection Law,
being a statute presented in writing, speaks for itself and to the extent that the
Plaintiffs' selective quotation from that statute is inaccurate or taken out of
context, its application is denied with strict proof demanded at trial.
34. Denied. The averments of Paragraph 34 constitute conclusionS of law to which no
responsive pleading is required by the Pa~R.C.P.
35.
36.
Denied. The averments of Paragraph 36 constitute conclusions of law to which no
responsive pleading is required by the Pa.R.C.P.
Denied. The averments of Paragraph 36 constitute conclusions of law to which no
responsive pleading is required by the Pa.R.C.P. To the extent a response is
required, it is specifically denied that the Plaintiffs would be entitled to treble
damages under the Unfair Trade Practices and Consumer Protection Law given
that none of the prerequisite pleading elements or allegations for such a claim are
included in the Plaintiffs' Complaint or exist in the relationship between Plaintiffs
and Defendant.
WHEREFORE, Defendant respectfully requests that this Court dismiss Plaintiffs'
Complaint with prejudice and enter judgment in its favor and against the Plaintiffs, together with
an award of such costs, interest and other relief as the Court deems just and reasonable.
NEW MATTER
37. The averments of the preceding paragraphs of this Answer with New Matter are
incorporated herein by reference as if fully set forth.
38. Completion of construction of the Plaintiffs' home was delayed by Plaintiffs'
failures and inability to make final and timely decisions on materials, features and
products to be incorporated into the residence.
39. The Bennetts were resident in the house and settlement occurred prior to actual
completion because the Plaintiffs had to move into the home on or around the
scheduled completion date which was delayed as referenced in the preceding
paragraph.
40. A Certificate of Occupancy for the residence was provided by the township on
December 30, 1998.
41. Completion of some punch list items was delayed or made difficult by the fact
that the Plaintiffs were resident in the house at a point in the completion process
earlier than is normally anticipated.
42. On or about July, 1999, the Plaintiffs and Defendant corresponded with items of
concern to the Plaintiffs and a Response and Action Plan was delivered. At that
time, several of the items on the list were pending while the Plaintiffs finalized
designs or supplied fixtures that they had requested.
43. On July 29, 1999, the Plaintiffs raised as the issues remaining (1) the brick issue;
(2) safety of the deck; and (3) whether or not the one (1) year warranty would be
extended for brick, dry wall and interior and exterior painting, all of which were
actually completed after settlement and residence.
44. On September 30, 1999, the Bennetts through their then counsel demanded
payment in the amount of $9,582.00 for repair and touch-up work, cleaning
allegedly not completed, brick facing installation and kitchen repairs.
45. No other concerns were listed in September of 1999.
46. On May 3, 2002, through their current counsel, the Bennetts demanded payment
in the amount of $17,600.00 based upon a Tuckey Restoration Services estimate
dated April 13, 2000.
47. On December 18, 2000, the Bennetts demanded payment in the amount of
$31,000.00 based upon a second Tuckey Restoration, Inc. estimate dated October
23, 2000.
48. The December 18, 2000 demand gave no explanation as to why the Tuckey
estimate doubled within six (6) months.
49. On May 31, 2001, the Bennetts through their counsel supplied Defendant's
counsel with a list of outstanding items allegedly in need of repair or replacement
as well as a list of items in contention.
50. Haubert proceeded to address all items that could be addressed to the mutual
agreement of the parties.
51. On July 19, 2001, Haubert informed the Plaintiffs that the agreed upon items had
been completed and forwarded a release to the Plaintiffs.
52. On September 6, 2001, the Plaintiffs acknowledged completion of the
aforementioned work but sent another list of items which they alleged were
"previously contracted for, paid for, but not accomplished" totaling over
$60,000.00
53. From July 19, 1999, through September, 2001, the Bennetts' demands
consistently increased in both nature and amount.
54. During that same time frame, Haubert addressed many, if not all, of the concerns
raised by the Bennetts which lend themselves to actual remedy.
55. As of July 19, 2001, Haubert had in good faith completed remedy of all items
listed by the Plaintiffs May 31, 2001, correspondence listed as items in need of
repair or replacement.
56. Defendant, Haubert Homes, also offered to compromise with a payment of funds
for the outstanding items that the Bennetts claimed and for which Haubert was
unable to provide a remedy, or for which a repair remedy is not suitable or is
economically unfeasible.
57. Most of the items raised in the Plaintiffs' Complaint and particularly all of those
items at Paragraph 11 of the Complaint were raised in excess of one (1) year after
occupancy and the issuance of the Occupancy Permit on the property.
58. Many, if not all, of the Plaintiffs' claims are unrecoverable under the principle of
Waiver.
59. Many, if not all, of the Plaintiffs' claims are rendered unrecoverable under the
principle of Estopple.
60. Many, if not all, of the Plaintiffs' claims are rendered unrecoverable under the
principle of Laches.
61. All complaints and allegations raised by the Plaintiff after issuance of the
Occupancy Permit, settlement on the property and the Plaintiffs' residence in the
property are waived in accordance with the agreed upon terms of the construction
contract.
62. All items raised by the Plaintiffs in excess of one (1) year after their residency in
the property are waived according to the terms of the contract.
63. The Complaint fails to state a claim upon which relief can be granted.
64. Plaintiffs' recovery under the Complaint is barred by the applicable Statute of
Limitations.
65.
Plaintiffs' recovery under the Complaint are prohibited and/or barred and/or
reduced pursuant to the doctrines of contributory or comparative negligence as the
case may be.
Respectfully submitted,
DATED: July~, 2002
METTE, EVANS & WOODSIDE
DAVID A. FITZS1MONS, ESQUIRE
Supreme Court I.D. ~41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Defendant
:301271 _1
VERIFICATION
I, Bradly E. Haubert, am authorized to sign this verification, have read the foregoing
document and to the extent that it contains infoaixation and facts supplied by me, they are true
and correct to the best of my personal knowledge, information and belief.
I make this Verification subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn
falsification to authorities.
Bradley E~Iaubert ~-~
:301360_1
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing document upon the
person(s) and in the manner indicated below, which service satisfies the requirements of the
Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail,
Harrisburg, Pennsylvania, First Class Mail, postage prepaid, as follows:
Carol L. Cingranelli, Esquire
28 South Pitt Street
Carlisle, PA 17013
Date:
July 31, 2002
METTE, EVANS & WOODSIDE
awd A F~tzs~mons, Esquire
Sup. Ct. I.D. g41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Defendant
Haubert Homes, Inc.
:301543_1 2
GERALD A. BENNETT and
JACQUELINE SMITH BENNETT,
Plaintiffs
HAUBERT HOMES, INC.,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-739 CIVIL TERM
CIVIL DIVISION - LAW
JURY TRIAL DEMANDED
PRAECIPE TO ATTACH VERIFICATION
TO THE PROTHONOTARY:
Please docket this Pmecipe for attachment of the enclosed Verification which shall
replace the Verification on the filed Answer with New Matter dated July 31, 2002 in the above
referenced matter.
Respectfully submitted,
DATED: August 2, 2002
DAVID A. FITZSIMONS, ESQUIRE
Supreme Court I.D. ~41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Defendant
:301747 _1
CER TIFICA TE OF SER VICE
I hereby certify that I am this day serving a copy of the foregoing document upon the
person(s) and in the manner indicated below, which service satisfies the requirements of the
Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail,
Harrisburg, Pennsylvania, First Class Mail, postage prepaid, as follows:
Carol L. Cingranelli, Esquire
28 South Pitt Street
Carlisle, PA 17013
Date:
August 2, 2002
METTE, EVANS & WOODSIDE
David A. Fitzsimons, Esquire
Sup. Ct. I.D.//41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attomeys for Defendant
Haubert Homes, Inc.
:301543 _1
VERIFICATION
I, Bradly E. Haubert, am authorized to sign this verification, have read the foregoing
document and to the extent that it contains information and facts supplied by me, they are true
and correct to the best of my personal knowledge, information and belief.
I make this Verification subject to the penalties of 18 Pa.C.S. §4904 relating to unswom
falsification to authorities.
:301360_1
Gerald A. Bennett and
Jacqueline Smith Bennett
Plaintiffs
VS.
Haubert Homes, Inc.
Defendant
· IN THE COURT OF COMMON PLEAS
· OF CUMBERLAND COUNTY
· CIVIL DIVISION - LAW
· NO. 02-739 CIVILTERM
· JURY TRIAL DEMANDED
ANSWER TO NEW MATTER
38. Denied. By way of further response Plaintiffs were in regular contact with
Mark Cummins, Haubert Homes' foreman on this construction project. Mr.
Cummins repeatedly assured Plaintiffs that he would advise them if there
were any problems with the need for making decisions on materials to be
utilized in the construction of the residence.
39. Denied.
40. Admitted.
41. Denied. By way of further response it is averred that completion of punch-list
items was delayed largely due to the fact that Defendant, Haubert Homes, did
not return phone calls in a timely manner, and also did not show up for
appointments scheduled to complete certain tasks.
42. Denied. Strict proof demanded·
43. Denied in part and admitted in part. It is specifically denied that all the listed
items have been completed.
44. Admitted.
45. Admitted.
46. Admitted.
47. Admitted.
48. Denied.
49. Admitted.
50. Admitted in part and denied in part. Although Defendant Haubert, proceeded
to address certain repairs that both parties had agreed upon, the Bennetts still
had outstanding repairs and concerns which the Defendant would not agree to
address.
51. Admitted in part and denied in apart. See answer to paragraph #50 above.
52. Admitted.
53. Admitted in part. Throughout the construction project the Bennetts complained
orally to the project manager regarding their concerns on all problems as soon
as they were noted. By way of further answer, the Bennetts were repeatedly
told that they did not need to worry about certain complaints because their
concerns would ultimately be addressed. It was only once Haubert Homes
neglected to address their orally expressed concerns that the Bennetts found it
necessary to increase their wdtten demands to Haubert Homes.
54. Admitted in part and denied in part. It is admitted that Haubert Homes
addressed a number of the concerns raised by the Bennetts. It is denied that
Haubert Homes addressed all concerns. By way of further answer, it is averred
that Haubert Homes specifically addressed only those complaints which were of
little cost to it. Haubert Homes did not address the more significant issues, such
as failure to build a master bedroom with a cathedral ceiling.
55. Admitted in part and denied in part. It is denied that Haubert Homes has acted
in good faith during this construction project. It is admitted that Haubert Homes
completed a number of items listed in the May 31, 2001 correspondence,
however it is denied that this list was conclusive of all outstanding construction
issues.
56. Denied. It is denied that Defendant Haubert Homes has offered to settle the
outstanding dispute by way of any reasonable compromise. Moreover, Haubert
Homes' settlement offers are irrelevant to this proceeding.
57. Denied.
58. The averments in paragraphs #58 constitute conclusions of law to which no
responsive pleading is required. To the extent a response is deemed required,
said averments are denied.
59.
60.
61.
62.
63.
64.
65.
The averments in paragraphs #59 constitute conclusions of law to which no
responsive pleading ~s required. To the extent a response ~s deemed required,
said averments are denied.
The averments in paragraphs #60 constitute conclusions of law to which no
responsive pleading is required. To the extent a response ~s deemed required,
said averments are denied.
The averments in paragraphs #61 constitute conclusions of law to which no
responsive pleading is required. To the extent a response ~s deemed required,
said averments are denied.
The averments in paragraphs #62 constitute conclusions of law to which no
responsive pleading ~s required. To the extent a response is deemed required,
said averments are denied.
The averments in paragraphs #63 constitute conclusions of law to which no
responsive pleading ~s required. To the extent a response is deemed required,
said averments are denied.
The averments in paragraphs #64 constitute conclusions of law to which no
responsive pleading ~s required. To the extent a response is deemed required,
said averments are denied.
The averments in paragraphs #65 constitute conclusions of law to which no
responsive pleading is required. To the extent a response is deemed required,
said averments are denied.
Respectfully Submitted,
D'~'te(/ '
"Carol L. Cingranelli~Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
(717) 245-9688
VERIFICATION
I, Carol L. Cingranelli, Esquire, attorney for the Plaintiffs herein, have sufficient
knowledge of the facts contained in this Answer to New Matter and verify that the
statements made in the foregoing Answer to New Matter are true and correct to the best
of my knowledge, based upon information received from the Plaintiffs. I understand that
false statements herein made are subject to the penalties of 18 Pa. C.S.A. {}4904
relating to unsworn falsification to authorities.
Dat~/ /
Carol L. Cingranelli, Esci~'re
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of the foregoing document
by depositing same in the Un[ted States Mail, first class, postage pre-paid on the
//~.,~._day of .~~5~, 2002, from Carlisle, Pennsylvania, addressed as
follows:
David A. Fitzsimons, Esquire
Mette, Evans & Woodside
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
TURO LAW OFFICES
~'~ar:ol'L. cingranelli, Es~/d'ire
28 South Pitt Street
Carlisle, PA 17013
(717) 245-9688
Attorney for Plaintiffs
PRAECIPE FOR LISTING CASE FOR TRIAl,
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case:
(Check one) ( x ) for JURY trial at the next term of civil court.
( ) for trial without a ury.
CAPTION OF CASE
(entire caption must be stated in full) (check one)
Gerald & Jacqueline Bennett
(x) Assumpsit
( ) Trespass
VS~
Hauber t Homes,
vs.
INC
Trespass (Motor Vehicle)
(Plaintiff) (other)
(Defendant)
The trial list will be called onSept 28, 2004
and
Trials Commence onOctober 25, 2004
Pretrials will be held on OCtober 6, 2004
(Briefs are due 5 days before pretrials.)
(The party' listing this case for trial shall provide
forthwith a copy of the praecipe to all COunsel,
pursuant lo Focal Rule 214-1.)
No. Civil02-0739
Indicatetheattorneywhowillt~ caseforthepartywhofilesthispraecipe:
ROD Turo
Indicate trial counsel for other parties if known:_
Date:
Jennifer Yankanich
This case is ready for trial.
9/3/04
Signed: ,/~ _.~
Print Nam~O~ Turo- .... " ' ....
Attorney for: .......... p~ai~if, fs_ ........
c~ ~ o
GERALD & jACQLIELINE
BENNETT,
PLAINTIFF
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND cOUNTY, PENNSYLVANIA
HAUBERT HOMES, INC.,
DEFENDANT
: 02-0739 CIVIL TERM
2004, following a pretrial
AND NOW, this ~day of October, in Courtroom Number
conference, IT IS ORDERED that a bench trial wilt be conducted
2, Cumberland County Courthouse, Pennsylvania on Friday, December 3, 2004, at 9:00
B~y the C~/~~
Edgar B. Bayley, J.
~Ron Turo, Esquire
For plaintiffs
v~ennifer Yankanich, Esquire
or Defendant
Court Administrator
:sat
Gerald A. Bennett and
Jacqueline Smith Bennett
Plaintiffs
VS.
Haubert Homes, Inc.
Defendant
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY
:CIVIL DIVISION -LAW
: NO. 02.-739 CIVIL TERM
PRAECIPE
TO THE PROTHONOTARY:
Please settle, withdraw and discontinue the above-captioned matter on behalf of
the Plaintiff.
Respectfully Submitted
TUR(:~AW OFFICES .
45,on 'l'~ro, Esquire
28 South Pitt Street
Carlisle, PA 17013
(717) 245-(,)688
Attorney for Plaintiff