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HomeMy WebLinkAbout13-0945F:\FILES\Clients\12627 Waidelich & Spirito\12627.3\12627.3.complaint Revised: 2/20/13 1:51 PM David A. Fitzsimons, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs KENNETH R. WAIDELICH and IN THE COURT OF COMMON PLEAS OF SABRINA A. SPIRITO, husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO. 2013- qµ5 l~ i v i 1 TP.rN~ CIVIL ACTION -LAW MADISON & SONS CONSTRUCTION, LLC, Defendant 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 Plaintiffs. 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 REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 ~103.'?5 Pp Aryl e~ al~7ya Q~ a~~yo KENNETH R. WAIDELICH and SABRINA A. SPIRITO, husband and wife, Plaintiffs v. MADISON & SONS CONSTRUCTION, LLC, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2013- : CIVIL ACTION -LAW COMPLAINT 1. Plaintiffs are Kenneth R. Waidelich and Sabrina A. Spirito, adult individuals, (hereinafter, "Homeowners") who reside at 340 West Old York Road, Carlisle, Cumberland County, Pennsylvania. 2. Defendant is Madison & Sons Construction, LLC, (hereinafter, "Madison") a Pennsylvania limited liability company with a principal place of business at 3147 Spring Road, Carlisle, Cumberland County, Pennsylvania. 3. Homeowners and Madison entered into a written contract for the construction of a residence at 340 West Old York Road, Carlisle, South Middleton Township, Cumberland County, Pennsylvania, (hereinafter, "Contract") a copy of which is incorporated by reference as if fully set forth and attached hereto and marked as Exhibit "A." 4. Construction commenced on or about O1 July 2006. 5. Pursuant to the terms of the Contract, Madison pledged to perform construction of the residence in a workmanlike manner in compliance with Building Codes. 6. Upon information and belief, Madison engaged with various subcontractors, material men and suppliers who provided materials, equipment and labor within the realm of their specific expertise. 7. At all times relevant to the construction of the residence, Madison was responsible for the supervision of all work on the site for correct phasing, construction methods and for the assurance that the construction was in conformance with the standards of good building practices, including but not limited to compliance with applicable building codes. 8. Upon occupancy of the residence and continuing through March 2011, Homeowners were at various times in contact with Madison relating to ongoing issues with construction, specifically: a. operation and installation of the geothermal heating and cooling system; b. infiltration of water into the basement of the home at an area adjacent on the northern exposure of the residence to a stamped concrete patio installed outside the master bedroom suite; c. penetrations of the roofing material discovered in April 2011 when mold was discovered in an interior ceiling and caused when employees of the stone facade installation subcontractor, Quality Stone, nailed two by fours to the finished roof to facilitate their installation of the stone facade which was performed out of phase after the finished roof was completed on the residence, leading to water infiltration; d. defects in the installation of the stone facade on the home have, within the past 18 months, become apparent, leading to water infiltration at numerous points on the home, causing deterioration of the facade, and damage to portions of the home; e. discovery, while conducting repair and replacement of damaged roofing and stone elements that insulation required by code was either never installed, or improperly installed, causing the home to require additional energy use for heating and cooling, and creating temperature zones which vary throughout the home in a manner which renders the heating/cooling system inoperable; f. failure to properly construct and underpin the chimney structure in the living room of the house, creating a hidden defect whereby the chimney was not properly supported and infiltration of cold air and rodents into the residence was effectuated through the construction defects; and g. failure to properly perform coordination and general contractor supervision of the construction site, leading to many of the defects described in (a) through (f) above in addition to further defects, such as the home foundation being poured to the incorrect dimension, resulting in the kitchen being three (3) feet narrower than designed, the front porch not being properly and in accordance with Code attached to the home, and the owners not receiving value for the contracted costs they undertook with Madison, despite agreeing to and undertaking additional costs beyond the contract price for completion of the home. Geo-Thermal Heating/Cooling System. 9. Madison was advised by Homeowners that they wished to retire to the residence and that they were interested in and required an energy efficient and top quality heating system. 10. Madison and its sub-contractor did not deliver a system that was able to perform as expected by the Homeowners, and engaged upon a scheme of misinformation and misrepresentations over several years to conceal from owners the fact that the system installed was not as promised, and was defectively installed. 11. The misrepresentations and defective construction/installation included the following: a. a single well system, rather than the promised double well system, was installed under the pretext that the water pressure from the initial well was sufficient, Homeowners have subsequently learned that such a system is considerably less expensive than the dual well system anticipated, and as installed, the geothermal system at the house suffered other inherent problems which were not identified or resolved until April 2011 when a qualified geothermal installer was retained by Plaintiffs; b. "Hammer Knock" has been a consistent issue with the discharge water on the open well system, which was finally redressed by a replacement contractor who was able to diagnose and remediate the issue at expense to the Homeowners; c. the initial geo-thermal unit installed at the house failed within two years of installation and Madison's agents advised Homeowners that a power surge caused by the power company (Metropolitan Edison) was the cause, and it has in fact been determined that Madison or its subcontractor had improperly rewired the installed unit, which was the actual cause of the failure; d. the rewiring was set up such that there was no circuit protection on the compressor (a fire hazard), and in such a way as to prevent the modulating valve from ever shutting off the flow of cooling water from the well. The well ran constantly which caused the rapid deterioration of components of the home's water supply system which were replaced at the owner's cost; e. utility costs for the geothermal system as installed by Madison were extremely high for more than four years, and Madison and its agents throughout that time frame blamed various causes, but never diagnosed the true cause for the extra costs, namely the negligent installation of the initial and replacement units and the insufficient ducting throughout the home; f. the replacement unit was discovered in April 2011 by a new contractor to be running full time because the unit had been improperly rewired, upon information and belief, in the same manner as the original unit (which had itself failed and been replaced by Madison), and that shipping blocks designed to preclude damage to the unit during shipping were left in place on the unit, resulting in an extremely noisy system and the likely need to replace that unit well within its expected lifetime; g. the ducting and design of air delivery for the home is inadequate, and not consistent with the standards to be expected in such a system and promised by Madison due to incorrectly installed supply ducts, lack of balancing baffles, improperly positioned return registers, and unsealed return ducts that are incapable of completing air flow back to the unit. 12. As a result of the multiple failures in specification and installation of the system, Homeowners have been required to pay excessive utility costs that have arisen since partial repair of the defective installation, for in excess of four years, and the costs for which and the replacement costs undertaken and anticipated are also sought. Water Infiltration at North Facing Patios. 13. The home features two stamped concrete patios at the northern elevation, one outside the master bedroom suite, and the other outside the kitchen. 14. Shortly after occupancy, Homeowners advised Madison that water was seeping in to the basement at the first floor joist/flooring level directly under the Master Bedroom on the northern end. 15. Dirk Madison, President of Madison, came to the property and on five occasions applied silicone caulk to rebar ends penetrating the basement space and advised Homeowners that the issue was resolved. 16. Mr. Madison also at one point blamed the homeowner for the seepage and said it was because the homeowner had not applied "Thompson's Water Seal" to the concrete patio and the stone facade on the patio. After the homeowner complied, the water continued to seep. 17. The builder came back again and replaced the stone veneer beneath the bedroom patio door. When the homeowner asked when to apply the water seal, the stone veneer installer said that the homeowner should never apply water seal to this type of stone because it is "designed to breathe." 18. The replacement of the stone veneer beneath the patio door did nothing to mitigate the seepage. The issue was not resolved, and upon inspection by a third party it was discovered that hidden water damage behind insulation had occurred to the structural joists and subfloor of the master bedroom, resulting in failure of a sliding patio door, and ongoing water damage to structural elements of the residence. 19. Upon investigation it was determined that the installation of the patio was neither in accordance with Code nor proper building practices, including a lack of flashing, improper penetration of the building envelope with structural rebar which was installed in plywood, which failed upon settlement of the fill under the patio. 20. The result of this failure was for the patio structure to settle with a negative slope towards the structure, resulting in pooling of water on the patio, and passage of water via the improperly installed rebar into the building, with subsequent damage to the interior structural elements. 21. When the fifth attempt at repairing the water intrusion failed, Mr. Madison simply abandoned efforts to find the solution to the problem. 22. The defective bedroom patio has been replaced, and the Code violations and poor construction practices documented, and claim for the costs is hereby made. 23. During the repair of the bedroom patio, the stone veneer wall around the patio perimeter, which was constructed by Madison at additional expense to the owner, was discovered to be rapidly decaying due to having been improperly built around a plywood supporting structure that had completely rotted and become infested with ants. This wall also needed to be removed and was replaced by wooden railings at the owner's expense. 24. The kitchen patio is, upon information and belief, constructed in the same defective manner as the bedroom patio, and is beginning to evidence symptoms of the same failures, although at a later time, since the kitchen patio, unlike the bedroom patio, is partly protected from weather by a porch/roof overhang. 25. Homeowners have been advised that the kitchen patio will need to be replaced at a point in the future, and claim for those estimated costs is hereby made. Roof Damage and Improper Phasing. 26. In April of 2011, Homeowners discovered mold patches in a powder room ceiling near the living room of the residence. 27. Investigation by a mold remediation company determined that nail holes penetrating through the roofing shingles, roofing felt and sub roofing had allowed rain to penetrate into the attic space, where it had eventually seeped through insulation, and into the ceiling of the powder room. 28. The water damage and mold were remediated and recovery of the costs thereof is demanded. 29. Also as a result of this investigation it was determined that the entire roof of the structure was penetrated in hundreds of spots by nail holes caused when Madison's stone installers nailed two x fours to the finished roof in order to move across the roof to install the facade stone. 30. Actual replacement of the roof was undertaken through the Homeowners' homeowners' insurance coverage, when it was determined by the Homeowners' insurance company, that subsequent hail damage warranted replacement independent of the penetration of the roof by multiple nail holes. Defective Stone Facade Installation and Improper Phasing. 31. Installation of the stone facade on the home was performed after the finished roof installation, siding and window cladding installation. 32. As a result of this improper phasing, installation of the replacement roof required removal of at least one course of stone facade. 33. There was no correctly installed flashing on the transition from the stone facade to the roof where the stone extended beyond the roofline. 34. "J" Channels around windows and siding were rendered ineffective in channeling water away from the structure because of the improper phasing of installation. 35. Mortar in the joints between stones on the facade was showing signs of failure in the summer of 2012. Specifically, cracks are occurring every few inches along the mortar on most of the stone facade. This is partially due to inadequate spacing between stones, and partially due to inadequate pointing of the mortar which was squirted and painted into place, but not fully seated ("pointed") into the joints. 36. The end gable truss on the western second floor gable is inadequately braced to support the wind loads that come from the west. The stone in this area is of specific concern because pushing on the wall from the outside causes the entire wall to give way slightly back and forth. 37. This repetitive back and forth motion is similar to the daily wind loading and is causing the mortar to rapidly deteriorate on this wall. 38. Upon removal of courses of stone necessary to properly install the replacement roof, it was discovered that the stone facade base was installed using inadequate mechanical fixtures, inadequate or non-existent flashing and improper mechanical water barriers and that subsequent failure was allowing water to penetrate behind the stone and into the structure. 39. Costs for installing flashing that was missing or improperly installed from the original construction are hereby demanded. 40. Homeowners have been advised that replacement of the entire facade is necessary, and claim therefore is hereby made. 41. Madison's stone subcontractor, at Owner's request, reviewed the work with the Homeowners and their engineer, inspector, and replacement contractor, and declared the work "beautiful" and has not followed up on evidently defective work. Madison did not attend the inspection. Defective and Missing Insulation. 42. In conducting replacement of the roof damaged by the stone installers, it was discovered that areas of the roof around framing for ceiling sky light windows were not insulated. 43. Once it had been determined that the geothermal system was improperly installed, further investigation determined that there are significant voids in the building envelope where insulation was never installed. 44. The fireplace chimney for the living room was not supported by any footer or foundation, and was instead "suspended" on the wall structure of the home. 45. Because the entire chimney is clad in stone, the structure was inadequately supported. 46. In addition, the living room was continually cold, and rodents were heard constantly moving around in the walls close to the fireplace, and mice were removed from the overhead insulation in the basement. 47. When asked to address this issue, Madison assured the Homeowners that the room was adequately insulated, and that rodents were a natural consequence of country living. 48. Madison also opined that the number of windows in the living room was the cause of "cold spots." 49. The living room wall surfaces are predominantly drywall finished. 50. Homeowners purchased and installed a pellet stove at their own expense as a replacement to the fireplace installed by Madison in order to address the consistently cold living room, which only partly addressed the problem. 51. Upon installation of a block footer support for the chimney, a significant uninsulated void was discovered behind the fireplace, which was also the entry point for rodents. 52. With the chimney safely supported, and the void insulated and closed, along with installation of missing insulation where possible, and the replacement of the fireplace with a pellet stove, the Homeowners' complaints about the temperature in the room are addressed. 53. A claim for the expense in remediating these significant construct defects is hereby made. Improper Phasing and Defective Supervision. 54. Madison as general contractor is responsible for the quality of construction performed by its own forces and those of subcontractors and their agents. 55. As general contractor, Madison directed the phasing, or order of installation of the elements of the construction. 56. Any defects in workmanship and/or order of installation are the responsibility of Madison. 57. Retaining Walls on the Western elevation of the home, at the daylight basement entrance are not installed to Code, or good construction practices, resulting in the infiltration of ground and storm water to the structural members of interior walls, which have been replaced at a cost to the Homeowners of $2,650.00, and claim therefore is made. 58. During the process of replacing the roof, it was discovered that there was no proper vent for the kitchen range hood. 59. The large propane gas range requires a specific range hood that was installed for fire protection. The stove pipe for this hood requires an 8 inch diameter sheet metal vent to be extended through the roof. 60. It was determined upon further investigation that Madison had incorrectly installed the vent by reducing the 8 inch sheet metal stove pipe to a 6 inch sheet metal pipe, then again to a 4 inch PVC plastic pipe before actually penetrating the roof. All of the reduction connections were accomplished using duct tape. 61. This major fire hazard could have resulted in the loss of the entire home in the event of a stove fire which would have melted the PVC pipe and spread the fire rapidly throughout the attic. The inadequate stove pipe was replaced at the homeowners' expense. 62. Prior to occupancy and during the initial power application to the home, a major power surge occurred that caused damage to the well head, the septic pump, and was blamed for subsequent damage to other systems. 63. The builder's HVAC subcontractor suggested this was the cause of the failure of the first geothermal unit. 64. At the time of the surge, Met Ed stated the cause was due to the fact that the builder's excavator refilled the power line trench with the limestone that was excavated for the line. One of the stones damaged and shorted the line. 65. The builder blamed the problem on a faulty installation by Met Ed. A second trench was dug and a new line was installed. Neither line was ever encased in a conduit or suitable protection. Met Ed claimed that it was the builder's job and the builder said that is not required for him to provide a conduit. 66. Aseptic pump was replaced at the two year point at the Homeowners' expense possibly due to this power surge. COUNT I BREACH OF CONTRACT 67. The averments of paragraphs 1 through 66 are incorporated and reasserted by reference as if fully set forth. 68. The failures of the construction at the residence are largely the result of latent (hidden) defects which did not become apparent until, in most instances, the summer of 2011 when Homeowners engaged third parties to investigate the conditions described after Madison abandoned any efforts to remediate. As the repairs progressed, further hidden defects were uncovered. 69. The defects involving the construction of the North facing patios were consistently the subject of repair attempts by Madison but were never resolved by Madison. 70. In addition, Madison concealed the actual cause of the problems, because as a builder, he knows that rebar supporting an exterior patio should not be installed where it penetrates the building envelope structure, causing water to infiltrate the structure. 71. The failures and defects in construction by Madison and its agents constitute breaches of contract, and claim for repairs undertaken, and for repairs which have yet to be undertaken is hereby made. WHEREFORE, Plaintiffs KENNETH R. WAIDELICH and SABRINA A. SPIRITO, husband and wife, pray that this Honorable Court will enter Judgment in their favor and against Defendant MADISON & SONS CONSTRUCTION, LLC for an amount in excess of Fifty Thousand Dollars ($50,000.00) which is in excess of the amount requiring compulsory arbitration, in addition to costs and interest and such other relief as the court deems just and reasonable. COUNT II NEGLIGENCE 72. The averments of paragraphs 1 through 71 are incorporated and reasserted as if fully set forth. 73. The failures of the construction at the residence are largely the result of latent (hidden) defects which did not become apparent until in most instances the summer of 2011 when Homeowners engaged third parties to investigate the conditions described. 74. The defects involving the construction of the North facing patios were consistently the subject of repair attempts by Madison, but were never resolved by Madison. 75. In addition, Madison concealed the actual cause of the problems, because as a builder he knows that rebar supporting an exterior patio should not be installed where it penetrates the building structure, causing water to infiltrate the structure. 76. The failures and defects in construction by Madison and its agents described in the preceding paragraphs 1 through 75, constitute negligence, and claim for repairs undertaken, and for repairs which have yet to be undertaken is hereby made. WHEREFORE, Plaintiffs KENNETH R. WAIDELICH and SABRINA A. SPIRITO, husband and wife, pray that this Honorable Court will enter Judgment in their favor and against Defendant MADISON & SONS CONSTRUCTION LLC for an amount in excess of Fifty Thousand Dollars ($50,000.00) which is in excess of the amount requiring compulsory arbitration, in addition to costs and interest and such other relief as the court deems just and reasonable. COUNT III FRAUD 77. The averments of paragraphs 1 through 76 are incorporated and reasserted as if fully set forth. 78. The actions of Madison & Sons Construction, LLC, described in the preceding averments were undertaken with the full knowledge and expectation that significant injury would occur to the Homeowners through the construction practices used to install the north facing patios, out of phase construction of the roof, stone facade, siding and window j-channels. 79. The actions of Madison & Sons Construction, LLC, described in the preceding averments with regard to the Geothermal system were undertaken with the full knowledge and expectation that significant injury would occur to the Homeowners through the actions of Madison and its agents. 80. Madison & Sons Construction, LLC, embarked upon these damaging courses of action regardless of the obvious and apparent damage that would be caused the Homeowners. 81. The damage has caused considerable loss of value and expense to the Homeowners in remediating the damage, and additional costs must be expended to remediate the remaining unrepaired damage. 82. Demand is hereby made for recovery of all such costs, in addition to costs, attorney's fees and punitive damages. WHEREFORE, Plaintiffs KENNETH R. WAIDELICH and SABRINA A. SPIRITO, husband and wife, pray that this Honorable Court will enter Judgment in their favor and against Defendant MADISON & SONS CONSTRUCTION LLC for an amount in excess of Fifty Thousand Dollars ($50,000.00) which is in excess of the amount requiring compulsory arbitration, in addition to costs and interest and such other relief as the court deems just and reasonable. COUNT IV UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 73 P.S. Sections 201-1 through 201-9.2 83. The averments of the preceding paragraphs 1 through 82 of this Complaint are incorporated by references as fully set forth herein. 84. The actions of Madison & Sons Construction, LLC, described in the preceding averments constitute a willful and deliberate refusal and/or failure to perform in the manner in which Madison & Sons Construction, LLC, holds itself out to the general public. These actions constitute unfair trade practices. 85. Madison & Sons Construction, LLC's actions and inactions as detailed in the preceding averments are inconsistent with specific promises and representations made to the Homeowners and were willfully false and the failure to fulfill those promises was willful and undertaken while knowingly appreciating that damage and loss would be caused to the Homeowners. These actions constitute unfair trade practices. 86. Because of the willful and knowing damage to the Homeowners caused by the failures and failings of Madison & Sons Construction, LLC, detailed in the preceding averments, the Homeowners are entitled to compensatory damages, treble damages and counsel fees as a result of Madison & Sons Construction, LLC's unfair trade practices and claim is made therefore. WHEREFORE, Plaintiffs KENNETH R. WAIDELICH and SABRINA A. SPIRITO, husband and wife, pray that this Honorable Court will enter Judgment in their favor and against Defendant MADISON & SONS CONSTRUCTION LLC for an amount in excess of Fifty Thousand Dollars ($50,000.00) which is in excess of the amount requiring compulsory arbitration, in addition to costs and interest and such other relief as the court deems just and reasonable MARTSON LAW OFFICES ~~~ ~~ ~ ~ ~ _ _~~ David A. Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: 2 ~ .~ l ~1 ~ Attorneys for Plaintiffs EXHIBTT "A" M~1DI~ON 8~ O~ISTRl~C110N U.C. 3145 Spring Road ~ Carlisle, Pennsylvania 17013 Telephone: (717) 512-4599 Fax: (717) ?,43-9333 `We Make Your Dreams A Realit}~' • Due to the intrinsic nature of corrcr'ete, minimal cracking can occur. • contractor cannot verify soil or ground type; therefore, cost estimates c:an only be figured on fair digging. ff your excavator encourrters rods or other hard material, you could incur extra cost. • All additions or changes must be discussed and approved through the job superintendent. Field employees and sub-oontracxors do not have the ~.rthority and do not have permission to take responsibility to make d,enges on site. • Flat paint is not washable but is easily retouched. • Contractor will keep all building grounds as dean as possible at all times. • After home is completed, the struchu a will be broom cleaned aid free ofi debris. • All selections must be made before c:onstrtx~ion commences. • Completion date will be scl~reduled before construction oommerx;es. • A final "walk through' with home purchaser will be scheduled before ocxupency. • Final settlemenrt is required prior to occupancy of new home. Keys and garage door openers will be given th homeowners at final settlement. • All extra materials delivered to job site are property of Madison & Sons Construction, LLC. Example -extra stone or brick will be taken to job site to ensure that enough material of same die lot is on stock to complete work. The remainder will be returned to supplier. • tr is weed that Madison & Sons Construction, LLC is not responsible for damage caused by fire, lightning, windstorm, theft, and other such perils during the course of construction. Buyer should p~chase a Homeowners or Builders Risk Policy at their own expense from their personal agent, We propose to furnish material and labor in accordance with the above speafications, plus or minus options or altercations as extras, for the sum of: Five hundred forty two tltot~nd, seven hundrod sixty dogs and zero . To be paid in five (5) stages throu~out the construction process: Draw 1 2096 $108,552.00 Permits/staking, e~ccavation/bt prep,, footthg foundations, well, drath tfie, waterproofing basement Draw 2 2596 $135,690.00 Framing, joist, sub floors, c~cterior sheetlng, ~, ~dows, and exterior doors Draw 3 2596 $135,690.00 Exterior brick, siding, rough electric, plumbthg, herstlng system instaNed, drywall and insulation Draw 4 2096 $108,552.00 WaNcs, stoops, driveway, fireplaces, finish floor/tlle, interior doors, trim, hardware, kitchen cabinets and tops Draw 5 1096 $54,276.00 Outside pairrt/stain, interior decorations, finish electric, heating. phrmbing, septic, air conditioning, 9, dotivnspouts, finish grading, sod/seed and landscapkg. Fully completed and ready fior occupancy. TOTAL 10086 $542,760.00 Signature of aooeptanoe: Builder Date ~ -dG Date Date ~', f o C Date S',~~-at ~~ P~ 4~ 9~ for 45 days from beginnth9 of contract. After 10% deposit, price w~l remain in effect for 6 months. Maci~.son ~ Sons Construction LLC 3145 Spring Rd. Carlisle, PA ~ 7013 717-512-4599 /Fax 717-243-9333 "We Mahe Youx Dreams a Reality" 'Z'o : Anthony L. Damore American Home Bank RE: Waidelich 5% Deposit From :Dirk J.1Vxadison -President Date: May 17, 2006 Dear Anthony, Please be advised that eve as a builder requYre a 5a/o.deposit, where as the price and the order in which your house is built is kept. 'hank you for choosing our company we look forward to working for you. Dirk~,Nladjs-~n- Pre~ident.Madison ~ Soms Construction LLC We propose to famish material and labor in acc:ordanoe with the above speafications, plus or minus options or alterc.•ations as extras, for the sum of: Five huncJred forty two tl~ousand, seven hxrndrod sixty doNars ~d zero tints. To be paid in five (5) stages throughout the canon process: Draw I 20% $108,552.00 Perrnit~/g, excanratk~r~/lot PreP•. foo'tln9 tottndatlons, w~, drain tNe, waterproofing basement Draw 2 25% $135,690.00 ~ Framing, joist, sub floor's, exterior sheeting, roof, wincbws, and exterior doors Draw 3 25% $131,690.00 Exterior brick, siding, rough elec,~tric, P~mb~'r9, g sys~bern instaAed, drywaN and insulation Draw 4 20% $100,552.00 WaNcs, stoops, ~, firepiaoes, flnlstt floor/tile, interior doors, trim, hardware, kitchen cabinets and hops Draw 5 1096 $50,276.00 Outside pairrt/stain, interbr deooratkxts, flnisft - ~~g. P~9, septic, air oonditlOnirlg, gutters, ~- ~~ 9~9, sod/seed and landscaping. FuYy completed and r'eadY for occupancy. TOTAL 10096 $526,761.110 Signature of Aooepla~noe ~ ~ ~ Date S 1 ~ -~~ Date ~ . ~. ~~ Date 5 IG-oL, ._- 1Mitness: 'rf - - -% ~- ~ Date f` ` - ~~ p~ 4~ ~d for 45 days from begmnin9 of contract. After 1096 depot, price wiH remain in effect for 6 months. ~~-i~~ ~ ~ ~~~~~ ~k~ ~~~ 3143 Sprite Road Carliisie, Pennsylvania 17013 Telephone; X717) 5124599 1=ax; (717) 243-9333 CONTRACT SIGNATURE PAGE This agreement is made between Madison and Sons Construction, LLC (General Corrtractor) and Ken Waidlich and Sabrina Spirito (husband and wi#e, homeowners). Madison and Sons agrees to do the work detailed in the estimated proposal f+or an approximate 3,500 square foot house as per plans provided by homeowners. Madison and Sons Con~ruc~ion, LLC agrees to build all items on above said proposal if the homeotivners ascertain all necessary governmental and financial approvals to allow the project to proceed. Madison and Sons will help in the process by providing inFormation, lists, and personal advroe. This contract is an estimated proposal with allowances on specific items. Any changes made to the oorrtract after finer approval of plans could result in a fluctuafion of ~r'i~.-Jh~fir-af be the plan at~'s approved by the township for oonsh^~x~ion_ LLC Thank you from Madison and Sons Construction, LLC. Victor J. Madison -CEO 512-4233 Dirk J. Madison - Presiden# 512-4599 Anthony Grimes -Vice-Presiden# 514-5470 Stacey Grimes -Treasurer 5145473 Babette L. Madison - 3eaetarY/Attorney 512-4525 Date S~ o~ Date Da#~ ~ t- d.6 Date 3145 Spring Road Carlisle, Psnr~sylvarda 17013 Telephone: (717} 512-4699 Fax: (717} Z43-9333 PROPOSAVFINAL DRAFT Date: Mav 8.2006 Name: Ken Waidelich and Sabrina Spirito Address: 826 Bumt House Rd.. Carlisle. PA 17013 Home Phone: (717) 609-2143 The propose is for. 3500 sa. ft. house: full walkout basement: 3 car aaraae Basement: 9' high poured corxx'ete foundation with walkout 4' concrete floor French drain with 26 stones Pressure treated sills Steel support beams where needed 1 fbor drain 2 windows with scxeens French door and 2 windows (36'x48") with screens Radon piping Fr•- Flooring W/ Basement Yx12' joist '/." OSB T & G floor decking Interior Walls 2'x4' interior 16' OC 2'x6' plumbing chase wall Exterior Walls 2'x6" exterior studs, 16° OC 7/16' OSB sheathing, nailed 9' ceilings Roof 'r~' OSB sheathing with H dips Arch self-sealing shingles (30 year warranty), High Profile Full shingled ridge vent 12" over hang with 6" fascia and fully vented soffit Truss system Insulation R-38 blown ceiling R-19 exterior walls '""" Basement = R-19 in floor .~ Geo-Thermal Heat Pump Extra $8,1300.00) Dual zone heat 1 and floors Oil boning Gas/natural or propane Electric 200 amp main service w/circuit breaker protection; 40 breaker panel 2 exterior flood light (side) 4 recessed front pouch lights 4 exterior receptacles 8 exterior light fixhxes (soffit) 6 TV 1; 6 P~'~ 1; 6 smoke detectors; 4 carbon monoxide detectors 1 #2 bathroom faMight/vent - ModeilType: 1 #3 bathroom faMight/vent - ModeUi'ype: 1 master bath f~llight/vent - ModeUfype: 2 recessed spots above whirlpool 1 recessed spot above shower Bar lights above master and #2 bathroom minors Modeustyre: 1 padcte fan, master bedroom - ModeuType: Bedrooms and laundry room have recessed lights with switch 1 paddle fan in family room - ModeuType: Dining area hanging light Recessed eyeball light in family room over fireplace 4 recessed lights in hallway 2 recessed foyer lights 6 recessed kitchen lights 1 hanging light over sink in kitdien - ModeUType: 1 hanging light in foyer - ModeuType: Ceiling lights in all closets on switd~ - ModeVType: "Lighting allowance Plums Maniblodc System 80 gal. energy saver hot water heater (depending on heating system) Delta faucets (or equivalent) PVC waste lines Shut off valves on a!I fixhn-es 3 hose bibs Basement will be pre-plumbed for toilet and shower Paneled steel insulated fi-ortt door, 36'x6'8' -Color. MakeJMode: Full view French door Wtdien door in rear 36'x6'8" MakeJModel: Full view steel French door, master bedroom, 36-x6'g- MakelModel: Double hung tilt vinyl windows with low E glass (internal grids optional) Make/tiAodel: Seals around windows Seam~ss gutter and down spouts -Color: 4/4 ship-lap vinyl siding -Color/Style: Stone veneer as per owner's choice of style and color TypeJStyle: Shutters for front of house - ColoNStyie: Painting of front door included (all other doors can be painted at an extra cost) Color/Style: Front porch is oorxxete Shlage locks on all doors, keyed the same Patio in rear is starrtped c:ortcxete (16'x20') Retaining wall -see allowance Patio wall -see ~lowanoe I~tsrior F1n~sh: 'r~' finished drywall walls -painted Colonial casing and base mounting Type/StyleJHeight: Rounded comers 2 paneled interior doors -painted Privacy locks on baths and all bedrooms - Schlage locks Type: Brass Chrome Nickel Door stops Type: Brass Chrome Nickel White Verrtilated vinyl-dad metal closet shelving, custom closet up to allowance Direct Vent fireplace with stone veneer in living room (Stone Real fireplace with flew - Great room) - Style/AAake/Model: Ceramic file - 6° file master bath, bathroom #2, #3, and ,,~ bath) Color/Item #/Located at: Cen~nic file -1 r tile, kitdien Colorlltem #/Located at: Ceramic file -Laundry room Color/Item #ILocated at: Hardwood in the entire house Style/Cokx/item #/Located at: Ki hen: ($20,000.00 alkwance) Quality custom c~binet8 (Kohl's, Lawe's, Home Depot, S1Nertz Supply, Myers ~~) • Raised paneled doors • Self-dosing hinges and rawer guides Sink with faucet and sprayer *Appliance allowance Designed By: Phone #: Bath: at Quality custom vanities (Kohl's, l.owe's, Home Depot, Slaartz SuPPIY, Lumber) Plate glass mirror in master bath and bath #3 ( to fr~ned mirrors) Corinne countertops, 2 formed lavatory bowls in master and #2 1.6 galkxt water saver toilets (4 allowance, $800.00) 60' fiber~ass tubJshower in bath #2 and bath #3 ($400.00 allowance) 36' fiberglass shower with pivot door in master bath ($625.00 allowance) Whirlpool in master bath ($1,800.00 aflowance) AAaster Bath Sinks - ModeUType: Master Bath Shower - ModeUType: Master Bath Garden Tub/Jet Tub Bath #1 Sink - Modeurype: Shower Tub - ModeUType: Bath #2 Sink - ModeUType: ShoMrerlTub - ModeUType: 'r~ Bath Sink - Modellfype: Toilets Master Bath - ModeUType/Color. Bath #1 - ModeUType/Color: Bath #2 - ModeUType/Cdor. '~ Bath - ModellType/Color. Designed By: at Phone #: G. 2'x4" exterior studs, 16" OC with double plate 7/16" OSB sheathing, nailed 4" concrete floor 2 floor drains 2 windows 3 8'x9' paneled exterior steel garage door, insulated Garage is drywalled, finished, and painted Pull doom steps in garage NOTE: ff costs are more than allowances, owner is responsible. tf costs are under, AAadison and Sons, LLC will charge only the amount used. (Conduit for electric, N, phone are r~ inducted and are extra) Excavation (Limestone) WelVpump (2 wells, 2 pumps) sand mounds $18,000.00 Lawn seed' shnibs $ 1 ~.~ ~~ Black t R and frnal cyst w/ to 1800 .feet 311,500.00 ~.,~.~ Sidewalks (Contracxor will supply 1 sidewalk from front of $ house to driveway not exceeding 25 feet {additional footage .~..~.,» IOt & sub vision Insurance Power dig in cost Lighting fixture allowance Plumbing facture allowance allowance -Hardwood alloMranoe -Tile system -Dual zone, gE wall on walk-out (bloc Patio wall Closet allowance 3 wn of homeowner $ wll ~ 52.00 i 2,700.00 2,800.00 1,900.00 20,000.00 25,000.00 _8,500.00 26,300.00 10,800.00 3,900.00 5,000.00 '"'''Will vary with each speaf~c job. Basement will cost more in excavation; so will well and septic, rather than water and sewer. ""'' ROCK CLAUSE -Any blasting/drilling is not inducted in bid and will cost homeowner additional funds. Homeowner will be contacted prior to any blasting. ""'""'WELL DRILLING CLAUSE - In drilling, any well depth will vary and quality of water will vary. We do not expect not to hit water, but it may take more than one well (at homeowner's expense) to meet the household needs. CHANGE ORDERS -Prior to construction, all cthanges will be materials and labor only; during construction, it will be $250.00 plus materials and labor. VERIFICATION I, Kenneth R. Waidelich, hereby verify that I have reviewed the foregoing document and state that to the extent that the foregoing Complaint contains facts supplied by or known to me, they are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. ,~ - ,. _,~ ~~~ C , C~~~~~c. ,- Kenneth R. Waidelich I Date: ? ~I'"i Z~t3 VERIFICATION I, Sabrina A. Spirito, hereby verify that I have reviewed the foregoing document and state that to the extent that the foregoing Complaint contains facts supplied by or known to me, they are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of I8 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. .-~ .. .... ,- S " " A. Spirito Date: ~- ; t ~} ~Loi 3 QOM ULAKIS ?013 APB-4 pH 2, Jason P Kutulakis I t squire ' Attorncv I.D.#: 80411 MB Lauren E.I lokamp,Esquire //' i [ ) Attornev I.D.# 314398 YL VA ty j A W. 'r h Marton,I;squire Attomey I.D.# 94759 2 West Iligh Street Carlisle,PA 17013 (717)249-0900 KENNETH R. WAIDELICH and IN THE COURT OF COMMON PLEAS SABRINA A. SPIRITO,husband and wife, OF CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. NO. 2013-945 MADISON & SONS CONSTRUCTION, CIVIL ACTION —LAW LLC, Defendant PRAECIPE FOR ENTRY OF APPEARANCE Please enter our appearance on behalf of the Defendant, Madison & Sons Construction, LLC, in the above-captioned matter. Respectfully Submitted, "A OM & KUTULAKIS, L.L.P. ai Date Ja n P. sge preme Court I.D. 80411 2 West High Street Carlisle, PA 17013 (717) 249-0900 Date Lauren E. Hokamp,Esquire Supreme Court I.D. 314398 2 West High Street Carlisle,PA 17013 (717) 249-0900 , /i Date W. Creig Martson, Esquire Supreme Court I.D. 94759 2 West High Street Carlisle, PA 17013 (717) 249-0900 CERTIFICATE OF SERVICE AND NOW, this 4`" day of April, 2013, I, Shannon Freeman, of Abom& Kutulakis, L.L.P., hereby certify that I did serve or cause to be served a true and correct copy of the foregoing ENTRY OF APPEARANCE via first class mail upon the following: David A. Fitzsimons, Esq. Martson Law Offices 10 East High Street Carlisle,PA 17013 SI&on Freeman T�: &U ULAKIS 2313AP Jason P.Kurulakis,Esquire -4 pi� 'o.: Attomey I.D.#: 80411 2 West I ligh Strect cc Carlisle,PA 17013 P (717)249-0900 KENNETH R. WAIDELICH and IN THE COURT OF COMMON PLEAS SABRINA A. SPIRITO,husband and wife, OF CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. NO. 2013-945 MADISON & SONS CONSTRUCTION, CIVIL ACTION —LAW LLC, Defendant NOTICE TO PLEAD TO: David A. Fitzsimons, Esq. Martson Law Offices 10 East High Street Carlisle, PA 17013 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT WITHIN TWENTY (20) DAYS OF THE DATE OF SERVICE OF THIS PLEADING. Respectfully Submitted, ABOM & KUTULAKIS,L.L.P. Dap e Jason P. Xutulakis, Esquire Supreme Court I.D. 80411 2 West High Street Carlisle, PA 17013 (717) 249-0900 KUTOI LILAKIS Jason P.Kutulakis,Esquire Attorney I.D.#: 80411 2 West I Ggh Streit Carlisle,PA 17013 (717)249-0900 KENNETH R. WAIDELICH and IN THE COURT OF COMMON PLEAS SABRINA A. SPIRITO, husband and wife, OF CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. NO. 2013-945 MADISON & SONS CONSTRUCTION, CIVIL ACTION—LAW LLC, Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT AND NOW, this 4`" day of April, 2013, comes the Defendant, Madison & Sons Construction, L.L.C., by and through its counsel,Jason P. Kutulakis, Esquire, of ABOM & KUTUL.AKIS, L.L.P., and brings the following Preliminary Objections to Plaintiff's Complaint, and in support thereof, respectfully avers as follows: 1. On or about February 21, 2013, Plaintiffs, Kenneth R. Waidelich and Sabrina A. Spirito, brought this cause of action against Defendant by filing a Complaint in the Court of Common Pleas of Cumberland County,Pennsylvania. Defendant's First Preliminary Objection—Count II Pa. R.C.P. 1028(a)(4) Demurrer 2. Paragraphs 1 through 5 are incorporated by reference as if set forth fully herein. 3. Where tort claims are intertwined with breach of contract claims and the duties allegedly breached are created and grounded in the contract itself, the gist of the action is breach of contract and not in the tort claim. 4. Claims of negligence in the performance of the contract are barred under the gist of the action doctrine. Hart t Arnold, 2005 Pa. Super. 328, 884 A.2d 316. 2 5. More specifically, "the gist of the action doctrine bars tort claims that: (1) arise solely from a contract between the parties; (2) where the duties allegedly breached were created from a contract between the parties; (3) where the liability stems from a contract; or (4) where the tort essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of the contract." Price v. Freese &Frititi, Inc., 11 Pa.D.&C. 5`h 486, 491-92 (Pa.Com.Pl. 2009)(citing, eToll Inc. P. EliaslSavion Advertising Inc., 811 A.2d 10, 19 (Pa. Super. 2002)). 6. Plaintiffs' Complaint attempts to claim tort damages for alleged negligence in the performance of a construction contract. 7. However, Plaintiffs' counts for breach of contract and negligence arise out of a common set of facts and circumstances. 8. More specifically, Plaintiffs' allegations relating to negligence rely upon the same facts as those relating to Defendant's performance of a construction contract. 9. Therefore, Plaintiffs' claims of negligence in Counts II is barred under the gist of the action doctrine because of the existence of the Contract between the Plaintiff and the Defendant and should be dismissed as legally insufficient. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Preliminary Objection as to Count II and dismiss said Count for legal insufficiency. Defendant's Second Preliminary Objection—Count III Pa. R.C.P. 1028(a)(4) Demurrer 10. Paragraphs 1 through 9 are incorporated by reference as if set forth fully herein. 11. Where tort claims are intertwined with breach of contract claims and the duties allegedly breached are created and grounded in the contract itself, the gist of the action is breach of contract and not in the tort action. 3 12. Claims of fraud in the performance of the contract are barred under the gist of the action doctrine. Hart v.Arnold, 2005 Pa. Super. 328, 884 A.2d 316. 13. More specifically, "the gist of the action doctrine bars tort claims that: (1) arise solely from a contract between the parties; (2) where the duties allegedly breached were created from a contract between the parties; (3) where the liability stems from a contract; or (4) where the tort essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of the contract." Price v. Freese 6 Fri�ti, Inc., 11 Pa.D.&C. 5`" 486, 491-92 (Pa.Com.Pl. 2009)(citi% eToll Inc. P. Elias/Savion Advertising Inc., 811 A.2d 10, 19 (Pa. Super. 2002)). 14. Plaintiffs' Complaint attempts to claim tort damages for alleged fraud in the performance of a construction contract. 15. However, Plaintiffs' counts for breach of contract and fraud arise out of a common set of facts and circumstances. 16. More specifically, Plaintiffs' allegations relating to fraud rely upon the same facts as those relating to Defendant's performance of a construction contract. 17. Further, Plaintiffs fail to plead all the elements of fraud required when claiming fraud. 18. Therefore, Plaintiffs' claim of fraud in Count III is barred under the gist of the action doctrine because of the existence of the Contract between the Plaintiff and the Defendant and should be dismissed as legally insufficient. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Preliminary Objection as to Count III and dismiss said Count for legal insufficiency. Defendant's Third Preliminary Objection—Counts I Pa. R.C.P. 1028(a)(4) Demurrer 19. Paragraphs 1 through 17 are incorporated by references as if set forth fully herein. 20. In Count I, Plaintiffs allege that Defendant breached a contract. 4 21. However, Plaintiffs fail to allege in Count I how Defendant breached the contract. 22. Moreover, Plaintiffs fail to allege what provisions of the Contract were breached in Count 1. 23. Therefore, Plaintiffs' Complaint as it relates to Breach of Contract is legally insufficient. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Preliminary Objection as to the legal insufficiency of Count I and dismiss the Plaintiffs' Complaint. Defendant's Fourth Preliminary Objection— Pa.R.C.P. 1028(a)(3) —Insufficient Specificity 24. Paragraphs 1 through 23 are incorporated by reference as if set forth fully herein. 25. Plaintiff's Complaint alleges that Defendants violated a "building code" in paragraphs 8(e), 8(g), 19, 22, and 57. 26. However, Plaintiffs offer no citation to the building code violated throughout the entire Complaint. 27. Without knowing what building code was allegedly violated, Defendant has no way to properly prepare a defense to the instant matter. 28. As such, Plaintiffs Complaint is insufficiently specific regarding violation of the "building code." WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Fourth Preliminary Objection and dismiss the Plaintiff's Complaint for insufficient specificity. Defendant's Fifth Preliminary Objection— Pa.R.C.P. 1028(a)(3) —Insufficient Specificity 29. Paragraphs 1 through 28 are incorporated by reference as if set forth fully herein. 30. In Count 1, Plaintiffs allege that Defendant breached a contract. 31. However, Plaintiffs fail to allege specifically which provisions of the Contract were allegedly breached by the Defendant. 5 32. As such, Defendant has no way of knowing which provisions of the Contract Plaintiff is claiming Defendant breached and Defendant cannot adequately prepare a proper defense without that knowledge. WHEREFORE, Defendant respectfully requests this Honorable Court grant its Fifth Preliminary Objection and dismiss Plaintiffs' Count I Breach of Contract for lack of specificity. Defendant's Sixth Preliminary Objection— Pa.R.C.P. 1028(a)(3) —Insufficient Specificity 33. Paragraphs 1 through 32 are incorporated by reference as if set forth fully herein. 34. Throughout Plaintiffs Complaint, Plaintiffs allege that they have incurred damages. 35. Additionally, throughout the Complaint, Plaintiffs allege that they have undertaken remedial measures to fix alleged mistakes made by the Defendants. 36. However, the Complaint is entirely devoid of the amounts of expense they have incurred in undertaking remedial measures 37. Further, the Plaintiffs' Complaint is entirely devoid of the amount of damages they have incurred as a result of the Defendant's alleged conduct. 38. Furthermore, under Pa.R.C.P. 1019(fl, "items of special damage shall be specifically stated." See, General State Authority P. Lawrie and Green, 365 A.2d 851 (Pa. Cmwlth. 1976) (requiring Plaintiff to plead more specific than a lump sum of damages in an alleged breach of contract in the construction of a museum). 39. The Plaintiffs fail to state who completed these remedial measures and the cost associated with the remedial measures performed. 40. The Plaintiffs fail to state the amount of damages incurred as result of the Defendant's alleged conduct. 6 41. As such, Plaintiffs have not specifically stated their items of special damages because they have not pled the costs associated with their remedial measures or the amount of their damages. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Sixth Preliminary Objection and dismiss the Plaintiff's Complaint for insufficient specificity. Defendant's Seventh Preliminary Objection Pa.R.C.P. 1028(a)(3) —Insufficient Specificity 42. Paragraphs 1 through 41 are incorporated by reference as if set forth fully herein. 43. Pa.R.C.P 1019(b) requires that averments of fraud be pled with specificity. 44. Plaintiff avers throughout the Complaint and in Count III that Defendant committed Fraud in its action. 45. However, the Plaintiff does not plead with specificity all the elements of fraud as it would related to the Defendant's actions. 46. As such, the Plaintiff's Complaint is insufficiently specific as it relates to Fraud. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Seventh Preliminary Objection and dismiss the Plaintiffs Count III—Fraud due to insufficient specificity. Defendant's Eight Preliminary Objection— Pa.R.C.P. 1028(a)(2) — Failure to Conform to Rule of Court 47. Paragraphs 1 through 46 are incorporated by reference as if set forth fully herein. 48. Throughout Plaintiffs Complaint, Plaintiffs allege that they have incurred damages. 49. Additionally, throughout the Complaint, Plaintiffs allege that they have undertaken remedial measures to fix alleged mistakes made by the Defendants. 50. However, the Complaint is entirely devoid of the amounts of expense they have incurred in undertaking remedial measures or the amount of damages they have incurred as a result of the Defendant's alleged conduct. 51. Furthermore, under Pa.R.C.P. 1019(f), "items of special damage shall be specifically stated." 7 52. The Plaintiffs fail to state who completed these remedial measures and the cost associated with the remedial measures performed. 53. As such, Plaintiffs have not specifically stated their items of special damages because they have not pled the costs associated with their remedial measures or the amount of their damages,which does not conform to Pa.R.C.P. 1019(f. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Eight Preliminary Objection and dismiss the Plaintiffs Complaint for failing to Conform to Pa.R.C.P. 1019(0. Defendant's Ninth Preliminary Objection Pa.R.C.P. 1028(a)(2)—Failure to Conform to Rule of Court 54. Paragraphs 1 through 53 are incorporated by reference as if set forth fully herein. 55. Pa.R.C.P 1019(b) requires that averments of fraud be pled with specificity. 56. Plaintiff avers throughout the Complaint and in Count III that Defendant committed Fraud in its action. 57. However, the Plaintiff does not plead with specificity all the elements of fraud as it would related to the Defendant's actions. 58. As such, the Plaintiff's Complaint is insufficiently specific as it relates to Fraud and fails to conform to Pa.R.C.P. 1019(b). WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Ninth Preliminary Objection and dismiss the Plaintiff's Count III — Fraud due to failure to conform to Pa.R.C.P. 1019(b). Defendant's Tenth Preliminary Objection Pa.R.C.P. 1028(a)(4)—Demurrer 59. Paragraphs 1 through 58 are incorporated by reference as if set forth fully herein. 60. In Count III, Plaintiffs seek punitive damages as a form of relief in the instant matter. 61. However, the Plaintiffs do not offer any legal authority for claiming punitive damages. 8 62. Furthermore, in order for punitive damages to be awarded, "there must be acts of malice, vindictiveness and a wholly wanton disregard for the rights of others." Pittsburgb Live, Inc. v. Servov, 615 A.2d 438, 442 (Pa. Super. 1992). 63. Nowhere in Plaintiff's Complaint do they aver that Defendants acted with malice, vindictiveness, or with a wanton disregard for the rights of Plaintiffs. 64. As such, Plaintiffs' claim for punitive damages is legally insufficient. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Tenth Preliminary Objection and dismiss the Plaintiff's claim for punitive damages. Defendant's Eleventh Preliminary Objection Pa.R.C.P. 1028(a)(3) —Insufficient SpecificitX 65. Paragraphs 1 through 64 are incorporated by reference as if set forth fully herein. 66. In Count IV, Plaintiffs allege Defendant violated the Unfair Trade Practices and Consumer Protection Law. 67. However, Plaintiffs do not allege which sections of the Unfair Trade Practices and Consumer Protection Law were violated by the Defendant. 68. Defendant has no way to prepare a defense without knowing the exact violations of the Unfair"Trade Practices and Consumer Protection Law. 69. Therefore, Plaintiff's Count IV alleging violation of the Unfair Trade Practices and Consumer Protection Law are insufficiently specific. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Eleventh Preliminary Objection and dismiss Plaintiffs' Count IV due to insufficient specificity. Defendant's Twelfth Preliminary Objection Pa.R.C.P. 1028(a)(5) —Nonjoinder of a Necessary PaM 70. Paragraphs 1 through 49 are incorporated by reference as if set forth fully herein. 71. Throughout Plaintiffs' Complaint, Plaintiffs reference the work of subcontractors in constructing the Plaintiffs' home and alleged defects from that work. 9 72. However, the Plaintiffs have only instituted the instant litigation against the named Defendant for work that was not performed solely by the named Defendant. 73. Plaintiffs have failed to join the subcontractors who performed work on the Plaintiffs' home and for who may also be responsible for the alleged defects to the Plaintiffs' home. WHEREFORE, Defendant respectfully requests this Honorable Court grant its Twelfth Preliminary Objection and dismiss the Plaintiffs' Complaint entirely for failing to join a necessary party to the action. Respectfully submitted, ABOM&KUTULAKIS,LLP DATE L 1.) Jas o P. Kutulakis, Esquire ID o. 80411 2 W. High Street Carlisle,PA 17013 (717) 249-0900 Attorney for Defendant 10 CERTIFICATE OF SERVICE AND NOW, this 4`h day of April, 2013, I, Shannon Freeman, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve a true and correct copy of the foregoing Preliminary Objections to the Plaintiff via United States Mail First Class Mail, addressed as follows: David A. Fitzsimons, Esq. Martson Law Offices 10 East High Street Carlisle, PA 17013 S on Freeman 11 Co PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for thexU Argument Court.) -0= ZZ —-----—------- — -------------------------- -M Qu ;t,. :Z: CAPTION OF CASE :::0 --7 r- (entire caption must be stated in full) r- I Kenneth R. Waidelich and Sabrina A. Spirito, husband and wife 7,-z VS. C Madison & Sons Construction, LLC No. 2013-945 , Civil Term 1. State matter to be argued(i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiffs'Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: David A. Fitzsimons, Esq., 10 East High Street, Carlisle, PA 17013 (Name and Address) (b) for defendants: Jason P. Kutulakis, Esq., 2 West High Street, Carlisle, PA 17013 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: May 10,2013 14 ignature Jk5lff Print your name Defendant Date: April 4, 2013 Attorney for INSTRUCTIONS: 1.Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR(not the Prothonotary)before argument. 2.The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument, 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR(not the Prothonotary)after the case is relisted. 0 _UV 4;k\R r-1,V LL , vm C) David A. Fitzsimons, Esquire R. Christopher VanLandingharn MARTSON DEARDORFF WILLIAMS OTTO GILROY &FALLER r—= MARTSON LAW OFFICES I.D, Nos. 41722 and 307424 10 East High Street Carlisle, PA 17013 (717)243-3341 Attorneys for Plaintiffs KENNETH R. WAIDELICH and IN THE COURT OF COMMON PLEAS OF SABRINA A. SPIRITO, husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2013-945 CIVIL ACTION - LAW MADISON & SONS CONSTRUCTION, LLC, Defendant 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 Amended 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 Amended Complaint or for any other claim or relief requested by the Plaintiffs, 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 REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717)249-3166 KENNETH R. WAIDELICH and IN THE COURT OF COMMON PLEAS OF SABRINA A. SPIRITO, husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2013-94 CIVIL ACTION—LAW MADISON & SONS CONSTRUCTION, LLC, Defendant AMENDED COMPLAINT 1. Plaintiffs are Kenneth R. Waidelich and Sabrina A. Spirito, adult individuals, (hereinafter, "Homeowners") who reside at 340 West Old York Road, Carlisle, Cumberland County, Pennsylvania. 2. Defendant is Madison & Sons Construction, LLC, (hereinafter, "Madison") a Pennsylvania limited liability company with a principal place of business at 3147 Spring Road, Carlisle, Cumberland County, Pennsylvania. 3. Homeowners and Madison entered into a written contract for the construction of a residence at 340 West Old York Road, Carlisle, South Middleton Township, Cumberland County, Pennsylvania, (hereinafter, "Contract") a copy of which is incorporated by reference as if fully set forth and attached hereto and marked as Exhibit"A." 4. Construction commenced on or about 01 July 2006. 5. Pursuant to the terms of the Contract, Madison pledged to perform construction of the residence in a workmanlike manner in compliance with Building Codes. 6. Upon information and belief, Madison engaged with various subcontractors, material men and suppliers who provided materials, equipment and labor within the realm of their specific expertise. 7. At all times relevant to the construction of the residence, Madison was responsible for the supervision of all work on the site for correct phasing, construction methods and for the assurance that the construction was in conformance with the standards of sound building practices, including but not limited to compliance with applicable building codes. 8. Upon occupancy of the residence and continuing through March 2011, Homeowners were at various times in contact with Madison relating to ongoing issues with construction, specifically: a. operation and installation of the geothermal heating and cooling system; b. infiltration of water into the basement of the home at an area adjacent on the northern exposure of the residence to a stamped concrete patio installed outside the master bedroom suite; C. penetrations of the roofing material discovered in April 2011 when mold was discovered in an interior ceiling and caused when employees of the stone fagade installation subcontractor, Quality Stone, nailed two by fours to the finished roof to facilitate their installation of the stone fagade which was performed out of phase after the finished roof was completed on the residence, leading to water infiltration; d. defects in the installation of the stone fagade on the home have, within the past 18 months, become apparent, leading to water infiltration at numerous points on the home, causing deterioration of the fagade, and damage to portions of the home; e. discovery, while conducting repair and replacement of damaged roofing and stone elements that insulation required by code was either never installed, or improperly installed, causing the home to require additional energy use for heating and cooling, and creating temperature zones which vary throughout the home in a manner which renders the heating/cooling system inoperable; f. failure to properly construct and underpin the chimney structure in the living room of the house, creating a hidden defect whereby the chimney was not properly supported and infiltration of cold air and rodents into the residence was effectuated through the construction defects; and 9. failure to properly perform coordination and general contractor supervision of the construction site, leading to many of the defects described in (a)through(f) above in addition to further defects, such as the home foundation being poured to the incorrect dimension, resulting in the kitchen being three (3) feet narrower than designed, the front porch not being properly and in accordance with Code attached to the home, and the owners not receiving value for the contracted costs they undertook with Madison, despite agreeing to and undertaking additional costs beyond the contract price for completion of the home. Geo-Thermal Heating/Cooling System. 9. Madison was advised by Homeowners that they wished to retire to the residence and that they were interested in and required an energy efficient and top quality heating system. 10. Madison and its sub-contractor did not deliver a system that was able to perform as expected by the Homeowners, and engaged upon a scheme of misinformation and misrepresentations over several years to conceal from owners the fact that the system installed was not as promised, and was defectively installed. 11. The misrepresentations and defective construction/installation included the following: a. a single well system, rather than the promised double well system, was installed under the pretext that the water pressure from the initial well was sufficient, Homeowners have subsequently learned that such a system is considerably less expensive than the dual well system anticipated, and as installed, the geothermal system at the house suffered other inherent problems which were not identified or resolved until April 2011 when a qualified geothermal installer was retained by Plaintiffs; b. "Hammer Knock" has been a consistent issue with the discharge water on the open well system, which was finally redressed by a replacement contractor who was able to diagnose and remediate the issue at expense to the Homeowners; C. the initial geo-thermal unit installed at the house failed within two years of installation and Madison's agents advised Homeowners that a power surge caused by the power company (Metropolitan Edison) was the cause, and it has in fact been determined that Madison or its subcontractor had improperly rewired the installed unit, which was the actual cause of the failure; d. the rewiring was set up such that there was no circuit protection on the compressor (a fire hazard), and in such a way as to prevent the modulating valve from ever shutting off the flow of cooling water from the well. The well ran constantly which caused the rapid deterioration of components of the home's water supply system which were replaced at the owner's cost; e. utility costs for the geothermal system as installed by Madison were extremely high for more than four years, and Madison and its agents throughout that time frame blamed various causes, but never diagnosed the true cause for the extra costs, namely the negligent installation of the initial and replacement units and the insufficient ducting throughout the home; f. the replacement unit was discovered in April 2011 by a new contractor to be running full time because the unit had been improperly rewired, upon information and belief, in the same manner as the original unit(which had itself failed and been replaced by Madison), and that shipping blocks designed to preclude damage to the unit during shipping were left in place on the unit, resulting in an extremely noisy system and the likely need to replace that unit well within its expected lifetime; 9. the ducting and design of air delivery for the home is inadequate, and not consistent with the standards to be expected in such a system and promised by Madison due to incorrectly installed supply ducts, lack of balancing baffles, improperly positioned return registers, and unsealed return ducts that are incapable of completing air flow back to the unit. 12. As a result of the multiple failures in specification and installation of the system, Homeowners have been required to pay excessive utility costs that have arisen since partial repair of the defective installation, for in excess of four years, and the costs for which and the replacement costs undertaken and anticipated are also sought. Water Infiltration at North Facing Patios. 13. The home features two stamped concrete patios at the northern elevation, one outside the master bedroom suite, and the other outside the kitchen. 14. Shortly after occupancy, Homeowners advised Madison that water was seeping in to the basement at the first floor joist/flooring level directly under the Master Bedroom on the northern end. 15. Dirk Madison, President of Madison, came to the property and on five occasions applied silicone caulk to rebar ends penetrating the basement space and advised Homeowners that the issue was resolved. 16. Mr. Madison also at one point blamed the homeowner for the seepage and said it was because the homeowner had not applied "Thompson's Water Seal" to the concrete patio and the stone fagade on the patio. After the homeowner complied,the water continued to seep. 17. The builder came back again and replaced the stone veneer beneath the bedroom patio door. When the homeowner asked when to apply the water seal, the stone veneer installer said that the homeowner should never apply water seal to this type of stone because it is "designed to breathe." 18. The replacement of the stone veneer beneath the patio door did nothing to mitigate the seepage. The issue was not resolved, and upon inspection by a third party it was discovered that hidden water damage behind insulation had occurred to the structural joists and subfloor of the master bedroom, resulting in failure of a sliding patio door, and ongoing water damage to structural elements of the residence. 19. Upon investigation it was determined that the installation of the patio was neither in accordance with Code nor proper building practices, including a lack of flashing, improper penetration of the building envelope with structural rebar which was installed in plywood, which failed upon settlement of the fill under the patio. 20. The result of this failure was for the patio structure to settle with a negative slope towards the structure, resulting in pooling of water on the patio, and passage of water via the improperly installed rebar into the building, with subsequent damage to the interior structural elements. 21. When the fifth attempt at repairing the water intrusion failed, Mr. Madison simply abandoned efforts to find the solution to the problem. 22. The defective bedroom patio has been replaced, and the Code violations and poor construction practices documented, and claim for the costs is hereby made. 23. During the repair of the bedroom patio, the stone veneer wall around the patio perimeter, which was constructed by Madison at additional expense to the owner, was discovered to be rapidly decaying due to having been improperly built around a plywood supporting structure that had completely rotted and become infested with ants. This wall also needed to be removed and was replaced by wooden railings at the owner's expense. 24. The kitchen patio is, upon information and belief, constructed in the same defective manner as the bedroom patio, and is beginning to evidence symptoms of the same failures, although at a later time, since the kitchen patio, unlike the bedroom patio, is partly protected from weather by a porch/roof overhang. 25. Homeowners have been advised that the kitchen patio will need to be replaced at a point in the future, and claim for those estimated costs is hereby made. Roof Damage and Improper Phasing. 26. In April of 2011, Homeowners discovered mold patches in a powder room ceiling near the living room of the residence. 27. Investigation by a mold remediation company determined that nail holes penetrating through the roofing shingles, roofing felt and sub roofing had allowed rain to penetrate into the attic space, where it had eventually seeped through insulation, and into the ceiling of the powder room. 28. The water damage and mold were remediated and recovery of the costs thereof is demanded. 29. Also as a result of this investigation it was determined that the entire roof of the structure was penetrated in hundreds of spots by nail holes caused when Madison's stone installers nailed two x fours to the finished roof in order to move across the roof to install the fagade stone. 30. Actual replacement of the roof was undertaken through the Homeowners' homeowners' insurance coverage, when it was determined by the Homeowners' insurance company, that subsequent hail damage warranted replacement independent of the penetration of the roof by multiple nail holes. Defective Stone FaVade Installation and Improper Phasing. 31. Installation of the stone facade on the home was performed after the finished roof installation, siding and window cladding installation. 32. As a result of this improper phasing, installation of the replacement roof required removal of at least one course of stone facade. 33. There was no correctly installed flashing on the transition from the stone facade to the roof where the stone extended beyond the roofline. 34. "J" Channels around windows and siding were rendered ineffective in channeling water away from the structure because of the improper phasing of installation. 35. Mortar in the joints between stones on the facade was showing signs of failure in the summer of 2012. Specifically, cracks are occurring every few inches along the mortar on most of the stone facade. This is partially due to inadequate spacing between stones, and partially due to inadequate pointing of the mortar which was squirted and painted into place, but not fully seated ("pointed") into the joints. 36. The end gable truss on the western second floor gable is inadequately braced to support the wind loads that come from the west. The stone in this area is of specific concern because pushing on the wall from the outside causes the entire wall to give way slightly back and forth. 37. This repetitive back and forth motion is similar to the daily wind loading and is causing the mortar to rapidly deteriorate on this wall. 38. Upon removal of courses of stone necessary to properly install the replacement roof, it was discovered that the stone facade base was installed using inadequate mechanical fixtures, inadequate or non-existent flashing and improper mechanical water barriers and that subsequent failure was allowing water to penetrate behind the stone and into the structure. 39. Costs for installing flashing that was missing or improperly installed from the original construction are hereby demanded. 40. Homeowners have been advised that replacement of the entire facade is necessary, and claim therefore is hereby made. 41. Madison's stone subcontractor, at Owner's request, reviewed the work with the Homeowners and their engineer, inspector, and replacement contractor, and declared the work "beautiful" and has not followed up on evidently defective work. Madison did not attend the inspection. Defective and Missing Insulation. 42. In conducting replacement of the roof damaged by the stone installers, it was discovered that areas of the roof around framing for ceiling sky light windows were not insulated. 43. Once it had been determined that the geothermal system was improperly installed, further investigation determined that there are significant voids in the building envelope where insulation was never installed. 44. The fireplace chimney for the living room was not supported by any footer or foundation, and was instead"suspended"on the wall structure of the home. 45. Because the entire chimney is clad in stone, the structure was inadequately supported. 46. In addition, the living room was continually cold, and rodents were heard constantly moving around in the walls close to the fireplace, and mice were removed from the overhead insulation in the basement. 47. When asked to address this issue, Madison assured the Homeowners that the room was adequately insulated, and that rodents were a natural consequence of country living. 48. Madison also opined that the number of windows in the living room was the cause of"cold spots." 49. The living room wall surfaces are predominantly drywall finished. 50. Homeowners purchased and installed a pellet stove at their own expense as a replacement to the fireplace installed by Madison in order to address the consistently cold living room, which only partly addressed the problem. 51. Upon installation of a block footer support for the chimney, a significant uninsulated void was discovered behind the fireplace,which was also the entry point for rodents. 52. With the chimney safely supported, and the void insulated and closed, along with installation of missing insulation where possible, and the replacement of the fireplace with a pellet stove, the Homeowners' complaints about the temperature in the room are addressed. 53. A claim for the expense in remediating these significant construct defects is hereby made. Improper Phasing and Defective Supervision. 54. Madison as general contractor is responsible for the quality of construction performed by its own forces and those of subcontractors and their agents. 55. As general contractor, Madison directed the phasing, or order of installation of the elements of the construction. 56. Any defects in workmanship and/or order of installation are the responsibility of Madison. 57. Retaining Walls on the Western elevation of the home, at the daylight basement entrance are not installed to Code, or good construction practices, resulting in the infiltration of ground and storm water to the structural members of interior walls, which have been replaced at a cost to the Homeowners of$2,650.00, and claim therefore is made. 58. During the process of replacing the roof, it was discovered that there was no proper vent for the kitchen range hood. 59. The large propane gas range requires a specific range hood that was installed for fire protection. The stove pipe for this hood requires an 8 inch diameter sheet metal vent to be extended through the roof. 60. It was determined upon further investigation that Madison had incorrectly installed the vent by reducing the 8 inch sheet metal stove pipe to a 6 inch sheet metal pipe, then again to a 4 inch PVC plastic pipe before actually penetrating the roof. All of the reduction connections were accomplished using duct tape. 61. This major fire hazard could have resulted in the loss of the entire home in the event of a stove fire which would have melted the PVC pipe and spread the fire rapidly throughout the attic. The inadequate stove pipe was replaced at the homeowners' expense. 62. Prior to occupancy and during the initial power application to the home, a major power surge occurred that caused damage to the well head, the septic pump, and was blamed for subsequent damage to other systems. 63. The builder's HVAC subcontractor suggested this was the cause of the failure of the first geothermal unit_ 64. At the time of the surge, Met Ed stated the cause was due to the fact that the builder's excavator refilled the power line trench with the limestone that was excavated for the line. One of the stones damaged and shorted the line. 65. The builder blamed the problem on a faulty installation by Met Ed. A second trench was dug and a new line was installed. Neither line was ever encased in a conduit or suitable protection. Met Ed claimed that it was the builder's job and the builder said that is not required for him to provide a conduit. 66. A septic pump was replaced at the two year point at the Homeowners' expense possibly due to this power surge. COUNT I BREACH OF CONTRACT 67, The averments of paragraphs I through 66 are incorporated and reasserted by reference as if fully set forth. 68. The failures of the construction at the residence are largely the result of latent (hidden) defects which did not become apparent until, in most instances, the summer of 2011 when Homeowners engaged third parties to investigate the conditions described after Madison abandoned any efforts to remediate. As the repairs progressed, further hidden defects were 69. The defects involving the construction of the North facing patios were consistently the subject of repair attempts by Madison but were never resolved by Madison. 70. In addition, Madison concealed the actual cause of the problems, because as a builder, he knows that rebar supporting an exterior patio should not be installed where it penetrates the building envelope structure, causing water to infiltrate the structure. 71. The failures and defects in construction by Madison and its agents constitute breaches of contract, and claim for repairs undertaken, and for repairs which have yet to be undertaken is hereby made. A list of repairs made as of April 12, 2013, is attached hereto and incorporated herein as Exhibit"B." husband and wife, pray that this Honorable Court will enter Judgment in their favor and against Defendant MADISON & SONS CONSTRUCTION, LLC for an amount in excess of Fifty Thousand Dollars ($50,000.00) which is in excess of the amount requiring compulsory arbitration, in addition to costs and interest and such other relief as the court deems just and _ COUNT 11 NEGLIGENCE 72. The averments of paragraphs I through 71 are incorporated and reasserted as if fully set forth. 73. The failures of the construction at the residence are largely the result of latent (hidden) defects which did not become apparent until in most instances the summer of 2011 when Homeowners engaged third parties to investigate the conditions described. 74. The defects involving the construction of the North facing patios were consistently the subject of repair attempts by Madison, but were never resolved by Madison, because Madison performed the repairs in a negligent manner. 75. In addition, Madison concealed the actual cause of the problems, because as a builder he knows that rebar supporting an exterior patio should not be installed where it penetrates the building structure, causing water to infiltrate the structure. 76. The failures and defects in construction repair by Madison and its agents of the defects described in the preceding paragraphs I through 75, constitute negligence, and claim for repairs undertaken, and for repairs which have yet to be undertaken is hereby made. A list of repairs made as of April 12, 2013, is attached hereto and incorporated herein as Exhibit"B." 77. Madison's failures to properly perform supervision of its own and subcontractor forces, in addition to completely failing to properly phase construction operations, a responsibility implicit but not specifically identified in the contract, constitutes negligence on Madison's part which resulted in either specific additional losses enumerated herein, or the increased expense in remediating certain damages as detailed herein. WHEREFORE, Plaintiffs KENNETH R. WAIDELICH and SABRINA A. SPIRITO, husband and wife, pray that this Honorable Court will enter Judgment in their favor and against Defendant MADISON & SONS CONSTRUCTION LLC for an amount in excess of Fifty Thousand Dollars ($50,000.00) which is in excess of the amount requiring compulsory arbitration, in addition to costs and interest and such other relief as the court deems just and reasonable. COUNT HI FRAUD 78. The averments of paragraphs I through 77 are incorporated and reasserted as if fully set forth. 79. The actions of Madison & Sons Construction, LLC, described in the preceding averments were undertaken with the full knowledge and expectation that significant injury would occur to the Homeowners through the construction practices used to install the north facing patios, out of phase construction of the roof, stone faqade, siding and window j-channels. 80. The actions of Madison & Sons Construction, LLC, and its agents, described in the preceding averments with regard to the Geothermal system, including improper installation of a non-conforming system and subsequent knowing misrepresentation as to cause and remediation of facilities were undertaken with the full knowledge and expectation that significant injury would occur to the Homeowners through the actions of Madison and its agents. 81. Madison & Sons Construction, LLC, embarked upon these damaging courses of action regardless of the obvious and apparent damage that would be caused the Homeowners and engaged in fraudulent and deceptive conduct which created a likelihood of confusion or misunderstanding that Homeowners relied on to their detriment 82. The damage has caused considerable loss of value and expense to the Homeowners in remediating the damage, and additional costs must be expended to remediate the remaining unrepaired damage. A list of repairs made as of April 12, 2013, is attached hereto and incorporated herein as Exhibit"B." 83. Demand is hereby made for recovery of all such costs, repairs required but not yet made, in addition to costs, attorney's fees and punitive damages. WHEREFORE, Plaintiffs KENNETH R. WAIDELICH and SABRINA A. SPIRITO, husband and wife, pray that this Honorable Court will enter Judgment in their favor and against Defendant MADISON & SONS CONSTRUCTION LLC for an amount in excess of Fifty Thousand Dollars ($50,000.00) which is in excess of the amount requiring compulsory arbitration, in addition to costs and interest and such other relief as the court deems just and reasonable. COUNT IV UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 73 P.S. Sections 201-1 through 201-9.2 84. The averments of the preceding paragraphs 1 through 83 of this Complaint are incorporated by references as fully set forth herein. 85. The actions of Madison & Sons Construction, LLC, described in the preceding averments constitute a willful and deliberate refusal and/or failure to perform in the manner in which Madison & Sons Construction, LLC, holds itself out to the general public. These actions constitute unfair trade practices under 73 P.S. 201-2(4)(vii), (xiv), (xv), and (xvi). 86. Madison & Sons Construction, LLC's actions and inactions as detailed in the preceding averments are inconsistent with specific promises and representations made to the Homeowners and were willfully false and the failure to fulfill those promises was willful and undertaken while knowingly appreciating that damage and loss would be caused to the Homeowners. These actions constitute unfair trade practices under 73 P.S. 201-2(4)(vii), (xiv), (xv), and (xvi). 87. Because of the willful and knowing damage to the Homeowners caused by the failures and failings of Madison & Sons Construction, LLC, detailed in the preceding averments, the Homeowners are entitled to compensatory damages, treble damages and counsel fees as a result of Madison & Sons Construction, LLC's unfair trade practices and claim is made therefore. WHEREFORE, Plaintiffs KENNETH R. WAIDELICH and SABRINA A. SPIRITO, husband and wife, pray that this Honorable Court will enter Judgment in their favor and against Defendant MADISON & SONS CONSTRUCTION LLC for an amount in excess of Fifty Thousand Dollars ($50,000.00) which is in excess of the amount requiring compulsory arbitration, in addition to costs and interest and such other relief as the court deems just and reasonable. MARTSON LAW OFFIC S David A. Fitzsimons, Esquire R. Christopher VanLandingham, Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: ��a 4�do�3 Attorneys for Plaintiffs EXHIBIT `A' MADISON & SONS CONSTRUCTION, I.I.C. 3145 Spring Road Carlisle, Pennsylvania 17013 Telephone: (717)812-4589 Fax:(717)243-9333 We Make Your Dreams A Reality'" • Due to the intrinsic nature of concrete, minimal cracking can occur. • Contractor cannot verify soil or ground type; therefore, cost estimates can only be figured on fair digging. If your excavator encounters rock or other hard material, you could incur extra cost. • All additions or changes must be discussed and approved through the job superintendent Field employees and sub-contractors do not have the authority and do not have permission to take responsibility to make changes on site. • Flat paint is not washable but is easily retouched. • Contractor will keep all building grounds as dean as possible at all times. • After home is completed, the structure will be broom cleaned and free of debris. • All selections must be made before construction commences. • Completion date will be scheduled before construction commences. • A final"walk through'with home purchaser will be scheduled before occupancy. • Final settlement is required prior to occupancy of new home. Keys and garage door openers will be given to homeowners at final settlement. • All extra materials delivered to job site are property of Madison & Sons Constriction, LLC. Example — extra stone or brick will be taken to job site to ensure that enough material of same die lot is on stock to complete work The remainder will be retuned to supplier. • It is agreed that Madison & Sons Construction, LLC is not responsible for damage caused by fire, lightning, windstorm, theft, and other such perils during the course of construction. Buyer should purchase a Homeowners or Builders Risk Policy at their own expense from their personal agent. We propose to furnish material and labor in accordance with the above specifications, plus or minus options or altercations as extras, for the sum of Five hundred forty two thousand, seven hundred sixty dollars and zero cents. To be paid in five(5)stages throughout the construction process: Draw 1 20% $108,552.00 Permits/staking, motion/lot prep., footing foundations, well, drain tile, waterproofing basement Draw 2 25% $1351,690.00 Framing,joist, sub floors, exterior sheeting, roof, windows, and exterior doors Draw 3 25% $135,690.00 Exterior brick, siding, rough electric,, plumbing, heating system installed, drywall and Insulation Draw 4 20% $108,552.00 Walks, stoops, driveway, fireplaces, finish floor/tile, interior doors, trim, hardware, Mbchen cabinets and tops Draw 5 10% $ 54,276.00 Outside paint/staln, interior decorations, finish elecbic, heating, Plumbing, septic, air conditioning,, gutiv5, downspouts, finish grading, sod/seed and landscaping. Fully completed and ready fnr occupancy. TOTAL 100% $542,760.00 Signature of Acceptance: pate - -dG Witness: Date Bulkier Sig N Date Wftrmw: Date W*act price quote good for 45 days from beginning of contract. After 10% deposit; price will remain In effect for 6 months. Madison & Sons Construction LLC 3145 Spring Rd. Carlisle, PA 17013 717-5124599 / Fax 717-243-9333 "We Make Your Dreams a Reality" To : Anthony L. Damore American Home Bank RE: Waidelich 5% Deposit From : Dirk I Madison—President Date: May 17,2006 Dear Anthony, Please be advised that we as a builder require a 5%4)t i where as the price and the order in which your house is built is kept. Thank you for choosing our company we look forward to working for you. Dirk ad' n-Pre ident.Madison Sons Construction LLC We propose to furnish material and labor in accordance with the above specifications, plus or minus options or altercations as extras, for the sum of: Five hundred forty two thousand, seven hundred sixty dollars and zero cents. To be paid In five(5)stages throughout the construction process: Draw 1 20% $108,552.00 Rerrmmb/staMV, excavation/lot prep., footing foundations, well, drain tile, waberW ng basement Draw 2 25% $135,690.00 framing,join, sub floors, exterior sheeting, roof, w1ndows, and exterior doors Draw 3 25% $131,690.00 Uterlor bride, siding, rough elecM plumbing, heating system Installed, drywall and Insulation Draw 4 20% $100,552.00 Walks, stoops, driveway, fireplaces, finish floor/tile, Interior doors, trim, hardware, kit hen cabinets and hops Draw 5 10% $ 50,276.00 Outside paint/staln, interior decorations, flnish electric, healing, plumbing, septic, air conditioning, gum, downspouts, flnish grading, sod/seed and landscaping. Fully completed and ready for occupancy. TOTAL 100% $526,761.00 Signature of Aooeptanae vL� Date Witness: pate Builder Sig re: Date Witness: �/ Date Contrail price quote good for 45 days from beginning of eonbacL After 10% deposit, price will remain In effect for 6 months. MADISON & SONS CONSTRUCTION, LLQ 3145 Spring Road Carlisle, Pennsylvania 17813 Telephone: (717)5124599 Fax: (717)243-83" CONTRACT SIGNATURE PAGE This agreement is made between Madison and Sons Construction, LLC (General Contractor) and Ken Waidlich and Sabrina Spirito (husband and wife, homeowners). Madison and Sons agrees to do the work detailed in the estimated proposal for an approximate 3,500 square foot house as per plans provided by homeowners. Madison and Sons Construction, LLC agrees to build all items on above said proposal if the homeowners ascertain all necessary governmental and financial approvals to allow the project to proceed. Madison and Sons will help in the process by providing information, lists, and personal advice. This contract is an estimated proposal with allowances on specific items. Any changes made to the contract after final approval of plans could result in a fluctuation of r' final "e tt a p an 's approved by the township for construction. M 'on, I+L.G Date ome Date Ho D84 Witness Date Thank you from Madison and Sons Construction. I.I.C. Victor J. Madison--CEO 512-4233 Dirac J. Madison—President 512-4599 Army Grimes—Vice-President 514.5470 Stacey Grimes—Treasurer 514-5473 Babette L.. Madison—Secretary/Attorney 512-4525 MADISON & SONS CONSMU ON, LLC. 3145 Spring Road Cadisie, M I isylvarda 17013 Telephone: (717)512 4589 Fax: (717)243-8333 PROPOSALJFINAL. DRAFT Date: May 8. 2006 Name: Ken Waidelich and SabrinllSairito Address: 6 ftyaA House sR_d . Carlisle, PA 17013 Nome Phone: (7171 609-21 The proposal Is for: g.,1 house:full walkout basement 3 car garage H9USE PROPOSAL INCLUDED: Basement: 9"high poured concrete foundation with walkout 4"concrete floor French drain with 20 stones Pressure treated sills Steel support beams where needed 1 Hoar drain 2 windows with screens French door and 2 windows(36'x48')with screens Radon piping FMdUge Flooring W/Basement 2'x12'joist s/4 OSS T& G floor decking Interior walls 2'x4' interior 16' OC 2"xfr plumbing chase wall Exterior Walls 2')6'exterior studs, I W OC 7116" OSS sheathing, nailed 9 ceilings Roof W OSB sheathing with H dips Arch self-sealing shingles(30 year warranty), High Profile Full shingled ridge vent 12' over hang with W fascia and fully vented soffit Truss system Insulation R-38 blovm ceiling R-19 exterior walls Basement = R-19 in floor Hea Geo-Thermal Heat Pump (Extra$8,800.00) Dual zone heat 1'c and 2"°floors Oil burning Gas/natural or propane Electric 200 amp main service w/circuit breaker protection; 40 breaker panel 2 exterior flood lights(side) 4 recessed front pore lights 4 exterior receptacles 8 exterior light fixtures (soffit) 6 TV jacks; 6 phone jacks; 6 smoke detectors; 4 carbon monoxide detectors 1 #2 bathroom fans ight/vent—ModeVTypw. 1 #3 bathroom fanAight/vent—Model/Type: 1 master bath fWAightfvent—ModeVType: 2 recessed spots above whirlpool 1 recessed spot above shower Bar lights above master and#2 bathroom mirrors Model/Style: 1 paddle fan, master bedroom—Model/Type: . Bedrooms and laundry room have recessed lights with switch 1 paddle fan in family room—ModeVType: Dining area hanging light Recessed eyeball light in family room over fireplace 4 recessed lights in hallway 2 recessed foyer lights 6 recessed kitchen lights 1 hanging light over sink in kitchen—Model/Type: 1 hanging light in foyer- Model/Type: Ceiling lights in all closets on switch—ModeVrype: *Lighting allowance Plumbing: Maniblock System 80 gal. energy saver hot water heater(depending on heating system) Delta faucets(or equivalent) PVC waste lines Shut off valves on all factures 3 hose bibs Basement will be pre-plumbed for toilet and shower error Flnkh-: Paneled steel insulated front door, 36°x6'8' -Color: Make/Mode: Full view French door kitchen door in rear 36'x6'8" Make/Model: Full view steel French door, master bedroom, 36"x6'8• Make/Model: Double hung OR vinyl windows with low E glass(internal grids optional) Make/Model: Seals around windows Seamless gutter and down spouts—Color: 4/4 ship4ap vinyl siding—Color/Style: Stone veneer as per owner's choice of style and color Type/Style: Shutters for front of house—Color/Style: Painting of front door included (all other doors can be painted at an extra cost) Color/Style: Front pore is concrete Shlage locks on all doors, keyed the same Patio in rear is stamped concrete(16'x2(Y) Retaining wall—see allowance Patio wall—see allowance Interior Finish: W finished drywall walls—painted Colonial casing and base mounting Type/Style/Height: Rounded comers 2 paneled Interior doors—painted Privacy locks on baths and all bedrooms—Schlage locks Type: Brass Chrome Nickel Door stops Type: Brass Chrome Nickel White Ventilated vinyl-dad metal closet shelving, custom closet up to allowance Direct Vent fireplace with stone veneer in living room (Stone Real fireplace with flew- Great room)—Style/Make/Model: Ceramic file—W file master bath, bathroom#2, #3, and bath) Color/Item#/Located at Ceramic file—12' tile, kitchen Color/Item#/Located at Ceramic tile—Laundry room Color/Item#/Located at: Hardwood in the entire house Style/Color/Item#/Located at Kl ($20,000.00 allowance) Quality custom cabinets(Kohl's, Lowe's, Home Depot,Swartz Supply, Myers Lumber) • Raised paneled doors • Self-losing hinges and drawer guides Sink with faucet and sprayer 'Appliance allowance Designed By: at Phone#: Beth: Quality custom vanities(Kohl's, Lnwe's, Home Depot,Swartz Supply, Myers Lumber) Plate glass mirror in master bath and bath#3(upgrade to framed mirrors) Corinne countertops, 2 formed lavatory bowls in master and#2 1.6 gallon water saver toilets (4 allowance, $800.00) Ur fiberglass tuWdxmer in Math#2 and bath#3($400.00 allowance) 3W fiberglass shower with pivot door in master bath($625.00 allowance) Whirlpool in master bath ($1,800.00 allowance) Master Bath Sinks—ModeVType: Master Bath Shower—ModeVType: Master Bath Garden Tub/Jet Tub : Bath#1 Sink—Model)Type: Shower Tub-ModellType: Bath 02 Sink—ModeVType: ShowerlTub—ModeVType: 'A Bath Sink—Model/Type: Toilets Master Bath—Model/Type/Color. Bath#1 —ModeVrype/Color. Bath#2—Model/Type/Color. %Bath—Model/Type/Color. Designed By: at Phone#: Ga e: 2'x4'exterior studs, 16' OC with double plate 7116' 058 sheathing, nailed 4' concrete floor 2 floor wins 2 windows 3 8'x9' paneled exterior steel garage door, insulated Garage is drywalled, finished, and painted Pull down steps in garage Allowances: NOTE: If costs are more than allowances, owner is responsible. If oasts are under, Madison and Sons, LLC will charge only the amount used. (Conduit for electric, N, phone are not Included and are extra) Excavation Limestone $18,000.00 WelVpump (2 wells, 2 pumps) $14,500.00{aaL)"* 90—Wel"NO — Septic system 2 sand mounds $24 000.00 Grath (landscape) $ 3,600.00 (a.) Lawn seedi #wbs $ 1400.00 «r Black t oping(RoL Vh and final cost w/parking,up to 1800 sq.feet $11 500.00{mac Sidewalks(Contactor will supply 1 sidewalk from front of $ house to driveway not exceeding 25 feet(additional footage extra Building lot $N/A Building its$subdivision 'bil` of homeowner $ Will est s3scw.00 isals $ 275.00 Insurance $ 52.00 per quarter Power dig in cost $2.700.00 Lighting fixture allowance $2,800.00 Plumbing fixture allowance $ 1,900.00 Ochen allowance $20,000.00 Flooring allowance-Hardwood $25000'00 Flooring allowance-Tile $ 8 500.00 Heati —Dual zone eothermal $26,300.00 Retaining wall on walk-out block/labor $10,800.00 Appliance allowance $ 3900.00 Patio wall $ 5.000.00 Closet allowance $ 2,600.00 "*"Will vary with each specific job. Basement will cost more in excavation; so will well and septic, rather than water and sewer. **** ROCK CLAUSE — Any blasting/drilling is not included in bid and will cost homeowner additional funds. Homeowner will be contacted prior to any blasting. "*''"WELL DRILLING CLAUSE — In drilling, any well depth will vary and quality of water will vary. We do not expect not to hit water, but it may take more than one well (at homeowner's expense)to meet the household needs. CHANGE ORDERS—Prior to construction, all changes will be materials and labor only; during construction, it will be $250.00 plus materials and labor. EXHIBIT `B' Inventory of Damages - As of 12 Apr 2013 Damage Description Remarks Complete? Cost. Date Billed Install Pellet Stove Address the Cold Temps in Family Room Yes $7,431.10 12/17/10 Replace Water Valve Geothermal Unit. Return Duct, Water Hammer, et al. Yes $1,678.79 11/14/11 Mold Remediation Hallway Bathroom Below Leaky Roof Yes $819.30 01/06/12 Replace Leaky Roof Hundreds of nail holes, faulty stove pipe installation, et al. Yes $31,500.00 06/27/12 Reattach Front Porch Front Porch Roof Found Not Attached. Yes $1,169.51 07/04/12 Master BR Porch Leak Caused by Poor Patio Construction. Yes $14,408.83 07/26/12 Move Geothermal Line Repair Broken Sewer Lines to Address Water Hammer Yes $4,251.57 08/06/12 Engineer Review Drawings, requirements for Roof, Fireplace, Porch Repair Yes $3,188.00 08/07/12 Replace Stone Wall Railings to replace Rotting MBR Patio Wall Yes $8,400.00 08/20/12 Site Inspection Engineer - Yes . $107.50 08/22/12 Repair Drains Under round Downspout Drains. Yes $223.76 10/07/12 Retaining Wall Area Replaced Rotting OSB w/Cinder Block. Yes $2,650.00 11/04/12 _ M �, P $75!82836 �� _ .� � PaidtS;.Far � _ Heating Sys. Proposal Estimate to Repair/Replace Heating to Proper Performance No $22,292.00 02/23/12 Replace Kitchen Patio Estimate for Similar Problem to Lanai. No $10,850.00 08/04/12 Replace MBR Patio Wall Price to Repair Wall w/Stone. No $5,525.00 08/04/12 Replace Stone Fa ade Awaiting Formal Estimate. No $75,000.00 Excess Heating Costs Ongoing Costs Due to Poorly Configured Geothermal Unit. No ? Insulation Approximate Cost of Repairs to Insulation Envelope of House No $6,000.00 T;ota1 lraclude's1EstiMates !$i1.95!495�36 VERIFICATION I, Kenneth R. Waidelich, hereby verify that I have reviewed the foregoing document and state that to the extent that the foregoing Amended Complaint contains facts supplied by or known to me,they are true and correct to the best of my knowledge, information and belief I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904, relating to unworn falsification to authorities. e"Kenneth R. Waidelich A4 °�09 Date: ' VERIFICATION I, Sabrina A. Spirito, hereby verify that I have reviewed the foregoing document and state that to the extent that the foregoing Amended Complaint contains facts supplied by or known to me,they are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Sabripa irito Date: �� °2 0/3 CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy& Faller, hereby certify that a copy of the foregoing Amended Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Jason P. Kutulakis, Esquire Abom & Kutulakis 2 West High Street Carlisle, PA 17013 MARTSON LAW OFFICES By icia . Eckenro d Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: April 24, 2013 c. � : FILE D-0F F 10E Alom CAL 0;E i HE r R0Tl'i0h`C A5�' �& ULAKIS Jason P.Kutulakis,Esquire Attorney I.D.#: 80411 CUMBERLAND COUNTY 2 West I PA I,p Street PENNSYLVANIA Carlisle,PA 17013 i" t�'� (717)249-0900 KENNETH R. WAIDELICH and IN THE COURT OF COMMON PLEAS SABRINA A. SPIRITO,husband and wife, OF CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. NO. 2013-945 MADISON & SONS CONSTRUCTION, CIVIL ACTION—LAW LLC, Defendant NOTICE TO PLEAD TO: Kenneth R.Waidelich and Sabrina A. Spirito David A. Fitzsimons, Esq. Martson Law Offices 10 East High Street Carlisle, PA 1701.3 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT WITHIN TWENTY (20) DAYS OF THE DATE OF SERVICE OF THIS PLEADING Respectfully Submitted, ABOM & KUTULAKIS,L.L.P. Date / J son P. utulakis,Esquire preme ourt I.D. 80411 2 West High Street Carlisle, PA 17013 (717) 249-0900 AOM ` Nu ULAKIS Jason P.Kutulakis,Esquire Attorney J.D.#: 80411 2 West High'Street Carlisle,PA 17013 (717)249-0900 KENNETH R. WAIDELICH and IN THE COURT OF COMMON PLEAS SABRINA A. SPIRITO,husband and wife, OF CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. NO. 2013-945 MADISON & SONS CONSTRUCTION, CIVIL ACTION-LAW LLC' Defendant DEFV N-T-1-s-PRE-L—M—NARY OBJEC IONS US TO--P-L A UN-1-1 OF-FS-' AMENDED COMPLAINT AND NOW, this — day of May, 2013, comes the Defendant, Madison & Sons Construction, L.L.C., by and through its counsel,Jason P. Kutulakis, Esquire, of ABOM & KUTULAKIS, L.L.P., and brings the following Preliminary Objections to Plaintiff's Amended Complaint, and in support thereof,respectfully avers as follows: 1. On or about February 21, 2013, Plaintiffs, Kenneth R. Waidelich and Sabrina A. Spirito, brought this cause of action against Defendant by filing a Complaint in the Court of Common Pleas of Cumberland County, Pennsylvania. 2. On April 4, 2013, Defendant, Madison & Sons Construction, LLC, filed Preliminary to the Plaintiffs'Complaint. 3. Thereafter, on April 24, 2013, the Plaintiffs filed an Amended Complaint, Defendant's First Prefitninaxv Objection-Count H Pa. R.C.P. 1028(a)L44 Demurrer 4. Paragraphs 1 through 3 are incorporated by reference as if set forth fully herein. 2 5. Where tort claims are intertwined with breach of contract claims and the duties allegedly breached are created and grounded in the contract itself, the gist of the action is breach of contract and not in the tort claim. 6. Claims of negligence in the performance of the contract are barred under the gist of the action doctrine. Hart a Arnold, 2005 Pa. Super. 328, 884 A.2d 316. 7. More specifically, "the gist of the action doctrine bars tort claims that: (1) arise solely from a contract between the parties; (2) where the duties allegedly breached were created from a contract between the parties; (3) where the liability stems from a contract; or (4) where the tort essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of the contract." Price P. Free.Ze &FriZZ, Inc., 11 Pa.D.&C. 5t" 486, 491-92 (Pa.Com.Pl. 2009)(cifing, eToll Inc. v. Elias/Saviors Advertising Inc., 811 A.2d 10, 19 (Pa. Super. 2002)). 8. Plaintiffs' Complaint attempts to claim. tort damages for alleged negligence in the performance of a construction contract. 9. However, Plaintiffs' counts for breach of contract and negligence arise out of a conunon set of facts and circumstances. 10. More specifically, Plaintiffs' allegations relating to negligence rely upon the same facts as those relating to Defendant's performance of a construction contract. 11. Furthermore, the Plaintiffs' Amended Complaint at Paragraph 77 alleges that the Defendants failure to "properly phase construction operations" is a responsibility "implicit but not specifically identified in the contract." 12. However, the "implicit" responsibility still arises and was created by the existence of a contract between the parties. 3 13. Therefore, Plaintiffs' claim of negligence in Count II is barred under the gist of the action doctrine because of the existence of the Contract between the Plaintiff and the Defendant and should be dismissed as legally insufficient. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Preliminary Objection as to Count 11 and dismiss said Count for legal insufficiency. Defendant's Second Preliminary Q iection—Count III Pa. R.C.P. 1028(a)C4) Demurrer 14. Paragraphs 1 through 13 are incorporated by reference as if set forth fully herein. 15. Where tort claims are intertwined with breach of contract claims and the dudes allegedly breached are created and grounded in the contract itself, the gist of the action is breach of contract and not in the tort action. 16. Claims of fraud in the performance of the contract are barred under the gist of the action doctrine. Hart v.Arnold,2005 Pa. Super. 328, 884 A.2d 316. 17. More specifically, "the gist of the action doctrine bars tort claims that: (1) arise solely from a contract between the parties; (2) where the dudes allegedly breached were created from a contract between the parties; (3) where the liability stems from a contract; or (4) where the tort essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of the contract." Price v. Freepe &Fii�Z, Inc., 11 Pa.D.&C. 5", 486, 491-92 (Pa.Com.Pl. 2009)(d ing, eToII Inc. v. EfiaslSavion Advertising Inc., 811 A.2d 10, 19 (Pa. Super. 2002)). 18. Plaintiffs' Complaint attempts to claim tort damages for alleged fraud in the performance of a construction contract. 19. However, Plaintiffs' counts for breach of contract and fraud arise out of a common set of facts and circumstances. 4 20. More specifically, Plaintiffs' allegations relating to fraud rely upon the same facts as those relating to Defendant's performance of a construction contract. 21. Further, Plaintiffs fail to plead all the elements of fraud required when claiming fraud. 22. Therefore, Plaintiffs' claim of fraud in Count III is barred under the gist of the action doctrine because of the existence of the Contract between the Plaintiff and the Defendant and should be dismissed as legally insufficient. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Preliminary Objection as to Count III and dismiss said Count for legal insufficiency. Defendant's Third Preliminary Objection—. - Pa.R.C.P. 1028(a)(3) —Insufficient Specificity 23. Paragraphs 1 through 22 are incorporated by reference as if set forth fully herein, 24. Plaintiffs Complaint alleges that Defendants violated a "building code" in paragraphs 8(e), 8(g), 19, 22, and 57. 25.However, Plaintiffs offer no citation to the building code violated throughout the entire Complaint. 26. Without knowing what building code was allegedly violated, Defendant has no way to properly prepare a defense to the instant matter. 27. As such, Plaintiff's Complaint is insufficiently specific regarding violation of the "building code." WHEREFORE, Defendant respectfiilly requests that this Honorable Court grant its Third Preliminary Objection and dismiss the Plaintiff's Complaint for insufficient specificity. Defendant's Fourth Preliminary Objection— Pa.R.C.P. 1028(a)(4)—Demurrer 28. Paragraphs-1 through 27 are incorporated by reference as if set forth fully herein. 29. In Count IV of Plaintiffs' Complaint, Plaintiffs allege that the Defendant violated the Unfair Trade Practices and Consumer Protection Law, 73 P.S. 201-2(4)(Vii), (xiv), (xv),and (xvi). 5 30. 73 P.S. 201-2(4)(vii) states that a violation of the Unfair Trade Practices and Consumer Protection Law occurs when a person "[represents] that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another." 31. However, the Plaintiffs' fail to allege that the Defendants represented to them that the Defendant's goods or services were of a particular standard, quality or grade than what was installed. 32. Additionally, 73 P.S. 201-2(4)(xiv) states that a violation occurs when a contractor "[fails] to comply with the terms of any written guarantee or warranty given to the buyer at,prior to or after a contract for the purchase of goods or services is made." 33. However, the Plaintiffs fail to allege what written guarantee or warranty the Defendant has allegedly failed to comply with in order to be in violation of 73 P.S. 201-2(4)(xiv). 34. Further, 73 P.S. 201-2(4)(xv) states that a violation of the Unfair Trade Practices and Consumer Protection Law occurs when a person "knowingly [misrepresents] that services, replacements or repairs are needed if they are not needed." 35. However, the Plaintiffs do not allege in their Amended Complaint that the Defendant knowingly misrepresented that the services, replacements or repairs were needed when they were not needed. 36. In fact, the Plaintiffs even state themselves that the Defendant came to the site many months after construction was completed specifically at the Plaintiffs request for repairs. 37. Finally, 73 P.S. 201-2(4)(xvi) states that a violation of the Unfair Trade Practices and Consumer Protection Law occurs when a person "[makes] repairs, improvements, or replacements on tangible, 'real or personal property, of a nature or quality inferior to or below the standard of that agreed to in writing." 6 38. However, the Plaintiffs fail to allege what the standard agreed to in writing was for the repairs, improvements, or replacements at the property'in order to successfully maintain a cause of action under 73 P.S. 201-2(4)(xvi). WHEREFORE, Defendant respectfully requests this Honorable Court grant its Fourth Preliminary Objection and dismiss Plaintiffs' Claim for violation of the Unfair Trade Practices and Consumer Protection Law'due to the legal insufficiency of the Plaintiffs' claim. Defendant's Fifth Prefiminagy Objection Pa.R.C.P. 1028(a)(4) —Demurrer 39. Paragraphs 1 through 38 are incorporated by reference as if set forth fully herein. 40. In Count 111,Plaintiffs seek punitive damages as a form of relief in the instant matter. 41. However, the Plaintiffs do not offer any legal authority for claiming punitive damages. 42. Furthermore, in order for punitive damages to be awarded, "there must be acts of malice, vindictiveness and a wholly wanton disregard for the rights of others." Pi&sbar ,gb Live, Inc. z,. Servop, 615 A.2d 438,442 (Pa. Super. 1992). 43. Nowhere in Plaintiffs Complaint do they aver that Defendants acted with malice, vindictiveness, or with a wanton disregard for the rights of Plaintiffs. 44. As such,Plaintiffs' claim for punitive damages is legally insufficient. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Fifth Preliminary Objection and dismiss the Plaintiffs claim for punitive damages. Respectfully submitted, om&KuTuLAKis,LLP DATE J so on P,.Kutul re 7� Na. 80411 2 W.High Street Carlisle,PA 17013 (717)249-0900 Attorney for Defendant 7 CERTIFICATE OF SERVICE AND NOW, this 1"day of May, 2013, I, Shannon Freeman, of ABOM& KUTULAKIS, LLP, hereby certify that I did serve a true and correct copy of the foregoing Preliminary Objections to the Plaintiff via United States Mail First Class Mail, addressed as follows: David A. Fitzsimons, Esq. Martson Law Offices 10 East High Street Carlisle, PA 17013 annon Freem 8 C:.. i -IDa 12627.3.Response to Defendants PO to Plaintiffs Amended Complaint rn Cu David A. Fitzsimons, Esquires` --Prr; R. Christopher VanLandingharn — r1a MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES = ? I.D. Nos. 41722 and 307424 > Ejo c�'t.-" 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs KENNETH R. WAIDELICH and IN THE COURT OF COMMON PLEAS OF SABRINA A. SPIRITO, husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2013-945 CIVIL ACTION - LAW MADISON & SONS CONSTRUCTION, LLC, Defendant PLAINTIFFS' RESPONSE TO DEFENDANT'S PRELMINARY OBJECTIONS TO PLAINTIFFS' AMENDED COMPLAINT AND NOW, comes the Plaintiffs, Kenneth R. Waidelich and Sabrina A. Spirito, by and through their attorneys, MARTSON LAW OFFICES, and files this response: 1. Admitted. 2. Admitted. 3. Admitted. Defendant's First Preliminary Obiection–Count II Pa. R.C.P. 1028 (a)(4) Demurrer 4. Paragraphs 1 through 3 are incorporated herein by reference as if fully set forth below. 5-7. Denied. The averments in this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required, said averments are denied. 8. Denied. The averments in this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required, said averments are denied. By way of further response, Plaintiffs' Amended Complaint differentiates the claims for damages for tort and claims for damages for breach of contract. 9. Denied. The averments in this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required, said averments are denied. 10. Denied. To the contrary, Plaintiffs' Amended Complaint differentiates the claims for damages for tort and claims for damages for breach of contract. 11. Denied as the Amended Complaint speaks for itself. 12-13. Denied. The averments in this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required, said averments are denied. WHEREFORE, Plaintiffs respectfully request this Honorable Court dismiss Defendant's Preliminary Objections and Order Defendant to file an Answer to Plaintiffs' Amended Complaint within twenty days. Defendant's Second Preliminary Obiection—Count III Pa. R.C.P. 1028 (a)(4) Demurrer 14. Paragraphs 1 through 13 are incorporated herein by reference as if fully set forth below. 15-18. Denied. The averments in this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required, said averments are denied. 19. Denied. To the contrary, Plaintiffs' Amended Complaint differentiates the claims for damages for tort and claims for damages and breach of contract. 20. Denied. To the contrary, Plaintiffs' Amended Complaint differentiates the claims for damages for tort and claims for damages and breach of contract. 21-22. Denied. The averments in this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required, said averments are denied. WHEREFORE, Plaintiffs respectfully request this Honorable Court dismiss Defendant's Preliminary Objections and Order Defendant to file an Answer to Plaintiffs' Amended Complaint within twenty days. Defendant's Third Preliminary Obiection— Pa. R.C.P. 1028 (a)(3)—Insufficient Specificity 23. Paragraphs 1 through 22 are incorporated herein by reference as if fully set forth below. 24-25. Denied as the Amended Complaint speaks for itself. 26. Denied. The averments in this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required, said averments are denied. 27. Denied. The averments in this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required, said averments are denied. WHEREFORE, Plaintiffs respectfully request this Honorable Court dismiss Defendant's Preliminary Objections and Order Defendant to file an Answer to Plaintiffs' Amended Complaint within twenty days. Defendant's Fourth Preliminary Obiection— Pa. R.C.P. 1028 (a)(4)—Demurrer 28. Paragraphs 1 through 27 are incorporated herein by reference as if fully set forth below. 29. Denied as the Amended Complaint speaks for itself. 30. Denied. The averments in this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required, said averments are denied. 31. Denied as the Amended Complaint speaks for itself. 32. Denied. The averments in this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required, said averments are denied. 33. Denied as the Amended Complaint speaks for itself. 34. Denied. The averments in this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required, said averments are denied. 35. Denied as the Amended Complaint speaks for itself. 36. Denied as the Amended Complaint speaks for itself. 37-38. Denied. The averments in this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required, said averments are denied. WHEREFORE, Plaintiffs respectfully request this Honorable Court dismiss Defendant's Preliminary Objections and Order Defendant to file an Answer to Plaintiffs' Amended Complaint within twenty days. Defendant's Fifth Preliminary Obiection— Pa. R.C.P. 1028 (a)(4)—Demurrer 39. Paragraphs 1 through 38 are incorporated herein by reference as if fully set forth below. 40. Admitted. 41. Denied as the Amended Complaint speaks for itself. 42. Denied. The averments in this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required, said averments are denied. 43. Denied as the Amended Complaint speaks for itself. 44. Denied. The averments in this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required, said averments are denied. WHEREFORE, Plaintiffs respectfully request this Honorable Court dismiss Defendant's Preliminary Objections and Order Defendant to file an Answer to Plaintiffs' Amended Complaint within twenty days MARTSON LAW OFFICES David A. Fitzsimons, Esquire R. Christopher VanLandingham, Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: s_ _ i Z Attorneys for Plaintiffs CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Plaintiffs' Response to Defendant's Preliminary Objections to Plaintiffs' Amended Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Jason P. Kutulakis, Esquire Abom & Kutulakis 2 West High Street Carlisle, PA 17013 MARTSON LAW OFFICES CrByycia D4Ec�kf�road Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated:S/jZ//�3 6 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) -------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) KENNETH R. WAIDELICH and SABRINA A. SPIRITO vs. MADISON & SONS CONSTRUCTION, INC No. .2013-945 CIVIL Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer�to r,a �. complaint, etc.): c Defendant's Preliminary Objections to Plaintiffs'Complaint. -n:ax M CD z rri rTi _. 2. Identify all counsel who will argue cases: x--7j -tam r (a) for plaintiffs: -<> David A. Fitzsimons, Esquire 1< =f CD (Name and Address) I> 10 E. High Street, Carlisle, PA 17013 (b) for defendants: Jason P. Kutulakis, Esquire (Name and Address) 2 West High Street, Carlisle, PA 17013 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: August 9,2013 MARTSON LAW OFFICES ignatur Print your name David A. Fitzsimons, Esq. Date: Attorney for �� INSTRUCTIONS: 1.Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR(not the Prothonotary) before argument. 2.The moving party shall file and serve their brief 14 days prior to argument. 3.The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT PV ADMINISTRATOR(not the Prothonotary) after the case is relisted. W. ys� KENNETH R. WAIDELICH and IN THE COURT OF COMMON PLEAS SABRINA A. SPIRITO, husband OF CUMBERLAND COUNTY, and wife, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW MADISON & SONS CONSTRUCTION, LLC, Defendant No. 13-0945 Civil Term IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' AMENDED COMPLAINT BEFORE GUIDO, J., EBERT, J., and PECK, J. ORDER OF COURT S� AND NOW this day of August, 2013, after consideration of Defendant's Preliminary Objections, the briefs filed by the parties, and after oral argument held on Friday, August 9, 2013; IT IS HEREBY ORDERED AND DIRECTED that Defendant's Preliminary Objections to Plaintiffs' Amended Complaint are OVERRULED. Defendant is instructed to file an Answer to Plaintiffs' Amended Complaint. By the Court, ,%A M. L. Ebert, Jr., J. PIS David A. Fitzsimons, Esq. .- Attorney for Plaintiffs C / r-5. --+c* ✓✓ Jason P. Kutulakis, Esq. Attorney for Defendant . CO'3 es Ad.l Lek OM �,a THE PRO IClNO��t K TULAKIS L ' r ? 20 Ph 3: 21 Jason P.Kutulakis,Esquire Attorney J.D.#: 80411 C U M G I R L A N U COUNTY Lauren L Flokamp,Esquire D E N N s Y Lvi-1 1 A Ill No.314398 i W.Creigh Martson,F,squire Ill.No.94759 2 West High Street Carlisle,PA 17013 (717)249-0900 KENNETH R. WAIDELICH and IN THE COURT OF COMMON PLEAS SABRINA A. SPIRITO, husband and wife, OF CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. NO. 2013-945 MADISON & SONS CONSTRUCTION, CIVIL ACTION —LAW LLC, Defendant NOTICE TO PLEAD TO: Kenneth R. Waidelich and Sabrina A. Spirito c/o David A. Fitzsimons, Esquire Martson Law Offices 10 East High Street Carlisle,PA 17013 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 Answer with New Matter 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. Pennsylvania Bar Association Lawyer Referral Service 1-800-692-7375 (PA ONLY) or 717-238-6715 Respectfully submitted, ABOM&KUTum"s,LLP DATE Cy F ° I Jason P. Kutulakis,Esquire ID No. 80411 Lauren E. Hokamp,Esquire ID No. 314398 W. Creigh Martson,Esquire ID. No. 94759 .2 W. High Street Carlisle,PA 17013 (717) 249-0900 Attorneys for Defendant 2 &UTOM & LILAKIS Jason P.Kutulakis,Esquire Attorney I.D.#: 80411 Lauren E.Hokamp,Esquire ID No.314398 W.Creigh Manson,Esquire ID.No.94759 2 west Fligh Street Carlisle,PA 17013 (717)249-0900 KENNETH R. WAIDELICH and IN THE COURT OF COMMON PLEAS SABRINA A. SPIRITO, husband and wife, OF CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. NO. 2013-945 MADISON & SONS CONSTRUCTION, CIVIL ACTION —LAW LLC, Defendant ANSWER TO PLAINTIFF'S AMENDED COMPLAINT WITH NEW MATTER AND NOW, this 20th day of September, 2013, comes the Defendant, Madison & Sons Construction, L.L.C., by and through its counsel, Jason P. Kutulakis, Esquire, of ABOM & KUTULAKIS, L.L.P., and files the following Answer to Plaintiff's Amended Complaint, and in support thereof,respectfully avers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. It is specifically denied that pursuant to the terms of the Contract, Madison pledged to perform construction of the residence in a workmanlike manner in compliance with building codes. 6. Admitted. 7. Admitted. S. Admitted in part and denied in part. It is admitted that the Homeowners contacted Madison with regards to potential concerns with construction in the Spring 2007; however, it is specifically denied that upon occupancy of the residence and continuing throughout March 2011 Homeowners were in contact with Madison relating to ongoing issues with construction. By way of further answer, each time 1 Madison was contacted concerning an issue he visited the Homeowners property and remedied the issue to the Homeowners' satisfaction. a. Denied. It is denied that the Homeowners were in contact with Madison relating to ongoing issues with operation and installation of the geothermal heating and cooling system. By way of further answer, the only complaint Homeowners made to Madison regarding the operation and installation of the geothermal heating and cooling system was that the electric bill was higher than they anticipated. By way of further answer, the home passed all necessary inspections before occupancy of the residence. b. Denied. It is specifically denied that the Homeowners were in contact with Madison relating to ongoing issues with the infiltration of water into the basement of the home at an area adjacent to the northern exposure of the residence to a stamped concrete patio installed outside of the master bedroom suite. By way of further answer, Madison returned to the property on three (3) occasions and re-stoned the entire facade at issue, after which Homeowners failed to make any further complaints to Madison with regards to this issue. By way of further answer, the home passed all necessary inspections before occupancy of the residence. C. Denied. It is specifically denied that the Homeowners were in contact with Madison relating to ongoing issues with penetration of the roofing material discovered in April 2011 when mold was discovered in an interior ceiling and caused when employees of stone facade installation subcontractor, Quality Stone,nailed 2x4's to the finished roof to facilitate their installation of the stone facade, which was performed out of phase after the finished roof was completed on the residence, leading to water infiltration. By way of further answer, the stone facade installer, Quality Stone, returned to the property at the request of the Homeowner and said that there were no issues with the installation of the facade. By way of further answer, the home passed all necessary inspections before occupancy of the residence. d. Denied. It is specifically denied that the Homeowners were in contact with Madison relating to the issues with the effects and installation of the stone facade in the home have, within the past eighteen (18) months, become apparent, leading to water infiltration at numerous points on the home causing deterioration of the facade and portions of the home. By way of further answer, the home passed all necessary inspections before occupancy of the residence. e. Denied. It is specifically denied that the Homeowners were in contact with Madison relating to ongoing issues with discovery, while conducting repair and replacement of damaged roofing and stone elements that installation, required by code, was .either never installed or properly installed, causing the home to require additional energy use for heating 2 and cooling and creating temperature zones which vary throughout the home in a manner which renders the heating and cooling system inoperable throughout the home. By way of further answer, the home passed all necessary inspections before occupancy of the residence. f. Denied. It is specifically denied that the Homeowners were in contact with Madison relating to ongoing issues involving failure to properly construct and underpin the chimney structure in the living room of the house, creating a hidden defect whereby the chimney was not properly supported and infiltration of cold air and rodents into the residence was effectuated through the construction defects. By way of further answer, the home passed all necessary inspections before occupancy of the residence. g. Denied. It is specifically denied that the Homeowners were in contact with Madison relating to ongoing issues with the failure to properly perform coordination and general contractor supervision of the construction site, leading to many of the defects described in a— f above, in addition to further defects such as the home foundation being poured to the incorrect dimension resulting in the kitchen being 3' narrower than designed, the front porch not being properly constructed and in accordance with code attached to the home and the owners not receiving value for the contracted cost they undertook with Madison despite agreeing to and undertaking additional costs beyond the contract price for completion of the home. By way of further answer, the home passed all necessary inspections before occupancy of the residence. 9.. Admitted. 10. Denied. It is specifically denied that Madison and its subcontractors did not deliver a system that was able to perform as expected by the Homeowners and engaged upon a scheme of misinformation and misrepresentation over several years to conceal from owners the fact that the system installed was not promised and was defectively installed. 11. Denied. It is specifically denied that the misrepresentations and defective construction/installation included the following: a. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. Should an answer be deemed necessary, Defendant specifically denies this averment. By way of further answer, Defendant never agreed to install a double wall system and instead, agreed to an open loop pump and dump system at the encouragement of the Homeowner. b. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. Should 3 an answer be deemed necessary, Defendant specifically denies this averment. C. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. Should an answer be deemed necessary, Defendant specifically denies this averment. d. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. Should an answer be deemed necessary, Defendant specifically denies this averment. e. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. Should an answer be deemed necessary, Defendant specifically denies this averment. f. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. Should an answer be deemed necessary, Defendant specifically denies this averment. g. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. Should an answer be deemed necessary, Defendant specifically denies this averment. 12. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. Should an answer be deemed necessary,Defendant specifically denies this averment. 13. Admitted. 14. Admitted. By way of further answer, as soon as Madison was alerted of the issue, he returned to the property at every request of the Homeowner and remedied the leak. 15. Admitted. By way of further answer, as soon as Madison was alerted of the issue, he returned to the property at every request of the Homeowner and remedied the leak. 16. Denied. It is specifically denied that Madison at one point blamed the Homeowner for the seepage and said it was because the Homeowner had not applied Thompson's Water Seal to the concrete patio and the stone facade on the patio. 17. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. Should an answer be deemed necessary, Defendant specifically denies this averment. 4 18. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. Should an answer be deemed necessary, Defendant specifically denies this averment. 19. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. Should an answer be deemed necessary, Defendant specifically denies this averment. By way of further answer, the home passed all necessary inspections before occupancy of the residence. 20. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. 21. Denied. It is specifically denied that when a fifth attempt at repairing the water installation failed, Mr. Madison simply abandoned efforts to find a solution to the problem. 22. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. 23. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. 24. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. 25. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. 26. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. 27. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. 28. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. 29. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. 30. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. By way of further answer, it is believed and therefore averred that when the roof was subsequently repaired by another company, they removed the flashing and this was the cause of the stone facade issues. 5 31. Denied. It is specifically denied that the installation of the stone facade on the home was performed after the finished roof installation, siding and windows cladding installation. 32. Denied. It is denied that as a result of improper phasing, installation of the replacement roof of the roof required removal of at least one course of stone facade. 33. Denied. It is specifically denied that there was no correct way to install flashing on the transition from the stone facade to the roof where the stone extended beyond the roofline. 34. Denied. It is specifically denied "J" channels around windows and siding were rendered ineffective in channeling water away from the structure because of improper phasing of installation. 35. Denied. It is specifically denied that mortar in the joints between the stones on the facade were showing signs of failure in the summer of 2012. Further,it is specifically denied that cracks are occurring every few inches along the mortar on most of the stone facade. By way of further answer, it is specifically denied that this is particularly due to inadequate spacing between stones and due partially to inadequate pointing of the mortar which was squirted and painted into place, but not fully sealed into the joints. 36. It is specifically denied that the end gable truss on the western second floor gable is inadequately braced to support the wind loads that come from the west. It is further denied that stone in this area is of specific concern pushing on the wall from the outside causing the entire wall to give way slightly back and forth. 37. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. 38. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. By way of further answer, it is believed and therefore averred that when the roof was subsequently repaired by another company, they removed the flashing and this was the cause of the stone facade issues. 39. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. By way of further answer, it is believed and therefore averred that when the roof was subsequently repaired by another company, they removed the flashing and this was the cause of the stone facade issues. 40. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. By way of further answer, it is believed and therefore averred that when the roof was subsequently repaired by another company, they removed the flashing and this was the cause of the stone facade issues. 6 41. Admitted. 42. Denied. It is specifically denied that in conducting replacement of the roof damaged by the stone installers, it was discovered that areas of the roof around framing for ceiling sky light windows were not insulated. By way of further answer, the property was properly inspected prior to the Homeowners occupancy and passed every inspection as well as was found to be up to code. 43. Denied. It is specifically denied that once it had been determined that the geothermal system was improperly installed, further investigation determined that there are significant voids in the building envelope where insulation was never installed. By way of further answer, the property was properly inspected prior to the Homeowners occupancy and passed every inspection as well as was found to be up to code. 44. Denied. It is specifically denied that the fireplace chimney for the living room was not supported by any footer of foundation, and was instead "suspended" on the wall structure of the home. By way of further answer, the property was properly inspected prior to the Homeowners occupancy and passed every inspection as well as was found to be up to code. 45. Admitted in part and denied in part. It is admitted that the entire chimney is clad in stone. However, it is specifically denied that the structure was inadequately supported. By way of further answer, the property was properly inspected prior to the Homeowners occupancy and passed every inspection as well as was found to be up to code. 46. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. 47. Denied. It is specifically denied that when asked to address this issue, Madison assured the Homeowners that that rooms were adequately insulated, and that rodents were a natural consequence of country living. 48. Denied. It is specifically denied that Madison opined that the number of windows in the living room was the cause of"cold spots." 49. Admitted in part and denied in part. It is admitted that the living room wall surfaces have drywall finished. However, it is specifically denied that the living room wall surfaces are predominantly drywall finished. 50. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. 51. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. 7 52. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. 53. No response is required. Should an answer be deemed necessary, this averment is specifically denied. 54. No response is required as this averment is a conclusion of law. 55. Admitted. By way of further answer, Madison directed the phasing correctly on the Homeowners property. 56. No response is required as this averment is a conclusion of law. 57. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. By way of further answer, Homeowners never brought this issue to Defendants attention. 58. Denied. It is specifically denied that during the process of replacing the roof, it was discovered that there was no proper vent for the kitchen range hood. 59. No response is required as this averment is a conclusion of law. 60. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. 61. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. 62. Denied. It is specifically denied that prior to occupancy and during the initial power application to the home, a major power surge occurred that caused damage to the well head, the septic pump, and was blamed for subsequent damage to other systems. 63. Denied. It is specifically denied the builder's HVAC subcontractor suggested this was the cause of the failure of the first geothermal unit. 64. Admitted in part and denied in part. It is admitted that a stone damaged and shortened the power line at issue. However, the remainder of the averment is specifically denied. 65. Admitted in part and denied in part. It is admitted that a second trench was was dug and a new line was installed. Further, it is admitted that neither line was encased in conduit. However, it is specifically denied that the builder blamed the problem on the faulty installation by Med Ed and it is further denied that Med Ed claimed it was the builder's job and the builder said that it is not required for him to provide conduit. By way of further answer, the Homeowners stated that they did not want the extra expense associated with providing conduit. 8 66. Upon reasonable investigation, Defendant is without sufficient information and belief to formulate an answer to this averment. 67. No response is required. 68. Denied as a conclusion of law. To the extent that a reply may be appropriate,.the allegations of this averment are specifically denied. 69. Denied as a conclusion of law. To the extent that a reply may be appropriate, the allegations of this averment are specifically denied. 70. Denied as a conclusion of law. To the extent that a reply may be appropriate, the allegations of this averment are specifically denied. 71. Denied as a conclusion of law. To the extent that a reply may be appropriate, the allegations of this averment are specifically denied. 72. No response is required. 73. Denied as a conclusion of law. To the extent that a reply may be appropriate, the allegations of this averment are specifically denied. 74. Denied as a conclusion of law. To the extent that a reply may be appropriate, the allegations of this averment are specifically denied. 75. Denied as a conclusion of law. To the extent that a reply"may be appropriate, the allegations of this averment are specifically denied. 76. Denied as a conclusion of law. To the extent that a reply may be appropriate, the allegations of this averment are specifically denied. 77. Denied as a conclusion of law. To the extent that a reply may be appropriate, the allegations of this averment are specifically denied. 78. No response is required. 79. Denied as a conclusion of law. To the extent that a reply may be appropriate, the allegations of this averment are specifically denied. 80. Denied as a conclusion of law. To the extent that a reply may be appropriate, the allegations of this averment are specifically denied. 81. Denied as a conclusion of law. To the extent that a reply may be appropriate, the allegations of this averment are specifically denied. 82. Denied as a conclusion of law. To the extent that a reply may be appropriate, the allegations of this averment are specifically denied. 9 83. Denied as a conclusion of law. To the extent that a reply may be appropriate, the allegations of this averment are specifically denied. 84. No response is required. 85. Denied as a conclusion of law. To the extent that a reply may be appropriate, the allegations of this averment are specifically denied. 86. Denied as a conclusion of law. To the extent that a reply may be appropriate, the allegations of this averment are specifically denied. 87. Denied as a conclusion of law. To the extent that a reply may be appropriate, the allegations of this averment are specifically denied. NEW MATTER 88. Plaintiffs had the roof replaced in 2011, due to hail damage. 89. Any and all damages relating to the roof are a direct consequence of the repairs made by the company who replaced the roof. 90. Two (2) years after the homeowners began occupying the property, they had the entire heating and cooling system replaced by Wes's Heating and Air. 91. Any and all damages relating to the heating and cooling system are a direct consequence of the repairs made by Wes's Heating and Air. 92. Construction on the property was completed in December 2006. Madison and Sons Construction,LLC,provides homeowners with a one (1) year warranty. 93. Any and all damages, arguendo, occurred after expiration of the homeowners warranty. 94. Plaintiffs claim and ability to recover is barred by Plaintiffs failure to mitigate their damages. 95. Plaintiffs claim and ability to recover is barred by Plaintiffs failure to provide appropriate notice to Defendant. 96. Plaintiffs claim and ability to recover is barred by Plaintiffs failure to properly maintain the property. 97. Any and all damages, arguendo, are as a result of normal wear and tear on the property. 98. Plaintiffs claim and ability to recover is barred by Plaintiffs spoliation of any evidence of defect. 10 99. Plaintiffs claim and ability to recover is barred by Plaintiff's failure to permit Defendant the opportunity to inspect the subject property. 100. Plaintiffs claim and ability to recover is barred by Plaintiffs failure to permit Defendant the opportunity to correct the alleged defects. 101. Plaintiffs claim and ability to recover is barred by the defense of lathes. 102. Plaintiffs claim and ability to recover is barred by the statute of limitation. 103. Plaintiff's claim and ability to recover is barred by the defense of accord and satisfaction. 104. Plaintiff's claim and ability to recover is barred by the defense of estoppel. 105. Plaintiffs claim and ability to recover is barred by the defense of failure of consideration. 106. Plaintiff's claim and ability to recover is barred by the defense of fraud. 107. _ Plaintiffs claim and ability to recover is barred by the defense of impossibility 108. Plaintiffs claim and ability to recover is barred by the defense of legality. 109. Plaintiffs claim and ability to recover is barred by the defense of justification. WHEREFORE, Defendant Wagner respectfully demands judgment in his favor and against Plaintiff, along with costs, fees and other damages the Court deems appropriate Respectfully submitted, �j ABOM&KUTULA"s,LLP DATE 1 �• Jason P.Kutulakis,Esquire ID No. 80411 Lauren E. Hokamp,Esquire ID No. 314398 W. Creigh Martson,Esquire ID. No. 94759 2 W. High Street Carlisle, PA 17013 (717) 249-0900 Attorneys for Defendant 11 CERTIFICATE OF SERVICE AND NOW, this 20`h day of September, 2013, I, Shannon Freeman, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve a true and correct copy of the foregoing Answer to Plaintiff's First Amended Complaint via United States Mail First Class Mail, addressed as follows: David A. Fitzsimons, Esq. Mattson Law Offices 10 East High Street Carlisle, PA 17013 rI R A Ill IK kA-0- annon Freema 12 9 HE PRO F�ij &U ULAKIS 20 Jason P.Kutulakis,Esquire Attornevl.D.#: 80411 CUMBERLAND CoilP1�,,, Lauren L 1 lokamp,Esquire PENNSYLVANIA ID No.314398 W.Creigh Martson,Esquire ID.No.94759 2 West High Street Carlisle,PA 17013 (717)249-0900 KENNETH R.WAIDELICH and IN THE COURT OF COMMON PLEAS SABRINA A. SPIRITO,husband and wife, OF CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. NO. 2013-945 MADISON & SONS CONSTRUCTION, CIVIL ACTION —LAW LLC, Defendant PRAECIPE TO ATTACH VERIFICATION Kindly attach the Verification, attached hereto, to the Answer with New Matter filed on September 20, 2013,in the above-captioned matter. Respectfully submitted, ABom&KuTUL,4"s,LLP DATE C-` � Jason P. Kutulakis,Esquire ID No. 80411 Lauren E. Hokamp,Esquire ID No. 314398 W. Creigh Martson,Esquire ID. No. 94759 2 W. High Street Carlisle,PA 17013 (717) 249-0900 Attorneys for Defendant 1 ,y VERIFICATION I, DIRK J. MADISON, verif T that the statements made in this Answer to Plaintiff's.Amended Complaint, New Matter and Counterclaim are true and correct to the best of my knowledge,information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. X4904 relating to unsworn falsification to authorities. Date DIRK J. MADI N CERTIFICATE OF SERVICE AND NOW, this 27`" day of September, 2013, I, Shannon Freeman, of ABOM & KUTULAKIS,LLP, hereby certif T that I did serve a true and correct copy of the foregoing Praecipe to Attach Verification via United States Mail First Class Mail, addressed as follows: David A. Fitzsimons, Esq. Martson Law Offices 10 East High Street Carlisle, PA 17013 Shonon Freeman 2 12627.3.answer to new matter I E3 OCi -g P112: David A. Fitzsimons, Esquire R. Christopher VanLandingham ;' B L ;Ni t)MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER PENNSYLVµ MARTSON LAW OFFICES I.D. Nos. 41722 and 307424 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs KENNETH R. WAIDELICH and : IN THE COURT OF COMMON PLEAS OF SABRINA A. SPIRITO, husband and wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : NO. 2013-945 : CIVIL ACTION - LAW MADISON & SONS CONSTRUCTION, LLC, • Defendant • PLAINTIFFS' ANSWER TO DEFNDANT'S NEW MATTER AND NOW, comes the Plaintiffs, Kenneth R. Waidelich and Sabrina A. Spirito, by and through their attorneys, MARTSON LAW OFFICES, and files this Answer to Defendant's New Matter: 88. Admitted. 89. Denied. It is denied that any damages relating to the roof are a direct consequence of the repairs made by the company that replaced the roof. To the contrary, the water damage and mold were due to nail holes caused by Defendant and/or its subcontractors which penetrated the roof 90. Admitted in part and denied in part. Any inference that the need for replacement is for other than a breach by the Defendant and/or its agent is denied. By way of further response, Plaintiffs were forced to replace their entire heating and cooling system due to the fact that Defendant and/or its subcontractor had rewired the installed unit which caused the failure of the heating and cooling unit. 91. Denied. It is denied that any and all damages relating to the heating and cooling system are a direct consequence of the repairs made by Wes' Heating and Air. To the contrary, the damages relating to the heating and cooling system are due to the negligence of Defendant. 92. Admitted. 93. Denied. It is denied that any and all damages, arguendo, occurred after the expiration of the homeowners' warranty. To the contrary, the damages began to occur immediately upon the negligent and faulty construction performed by Defendant. 94-96. The averments of Paragraphs 94-96 are conclusions of law to which no response is required. To the extent a response is deemed required, said averments are hereby denied. 97. Denied. It is denied that any and all damages, arguendo, are as a result of normal wear and tear on the property. The damages complained of in Plaintiffs' Amended Complaint are the result of negligent and faulty construction performed by Defendant and its' subcontractors. 98-109. The averments of Paragraphs 98-109 are conclusions of law to which no response is required. To the extent a response is deemed required, said averments are hereby denied. WHEREFORE, Plaintiffs KENNETH R. WAIDELICH and SABRINA A. SPIRITO, husband and wife, pray that this Honorable Court will enter Judgment in their favor and against Defendant MADISON & SONS CONSTRUCTION LLC for an amount in excess of Fifty Thousand Dollars ($50,000.00) which is in excess of the amount requiring compulsory arbitration, in addition to costs and interest and such other relief as the court deems just and reasonable. Respectfully submitted, MARTSON LAW OFFICES B \ Y• David A. Fitzsimons, Esquire R. Christopher VanLandingham, Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: �O�� Attorneys for Plaintiffs 2 VERIFICATION I, Kenneth R. Waidelich, hereby verify that I have reviewed the foregoing document and state that to the extent that the foregoing Answer contains facts supplied by or known to me, they are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904, relating to unworn falsification to authorities. aa,t-cti-t Kenneth R. Waidelich Date: 3 VERIFICATION I, Sabrina A. Spirito, hereby verify that I have reviewed the foregoing document and state that to the extent that the foregoing Answer contains facts supplied by or known to me, they are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904, relating to unworn falsification to authorities. Sab ;pirio Date: 4 CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Answer was served this date, by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Jason P. Kutulakis, Esquire Abom & Kutulakis 2 West High Street Carlisle, PA 17013 MARTSON LAW OFFICES Tricia . Ecke(road Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: kiglo 5 F:\FILES\Clients\12627 Waidelich & Spirito\12627.3\I 2627.3.motion status conference.wpd Revised: 8/26/14 10:46AM David A. Fitzsimons, Esquire MARTSON DEARDORFF WILLIAMS MARTSON LAW OFFICES I.D. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs OTTO GILROY & FALLER I HE. PRO T! -I O: C. 11,R Zak AUG 26 PM ii. 35 CUMBERLAND COUNTY PENNSYLVANIA KENNETH R. WAIDELICH and : IN THE COURT OF COMMON PLEAS OF SABRINA A. SPIRITO, husband and wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. : NO. 2013-945 : CIVIL ACTION - LAW MADISON & SONS CONSTRUCTION, LLC, Defendant PLAINTIFFS' MOTION FOR A STATUS CONFERENCE AND NOW, comes Plaintiffs, Kenneth R. Waidelich and Sabrina A. Spirito, by and through their attorneys, MARTSON LAW OFFICES, and in support of their Motion for a Status Conference aver as follows: 1. A Complaint was filed by the Plaintiffs on February 21, 2013. 2. Defendant is Madison & Sons Construction, LLC, (hereinafter, "Madison") a Pennsylvania limited liability company. 3. The allegations of the Complaint are that Defendant began construction on the primary residence of the Plaintiffs on July 1, 2006; and in the years that have followed, significant defects in the construction have cost the Plaintiffs thousands of dollars in repairs and Plaintiffs are still discovering defects in the construction to this date. 4. At this time, upon disposition of the Preliminary Objections, the Amended Complaint has been answered by Defendant on September 20, 2013. 5. Oral argument on Preliminary Objections was held before a Panel of the Honorable Guido, Honorable Edward E. Guido, Christylee L. Peck and the Honorable M.L. Ebert, Jr. Judge Ebert issued the Order with regard to the Preliminary Objections 6. There has been some discovery by Plaintiff in the form of Interrogatories and Request for Production of Documents which have been answered. 7. Defendant has been invited to examine the property, but to date has declined. 8. Plaintiffs are ready to try the case which will be a Bench Trial; neither party having requested a jury trial. 9. Plaintiffs respectfully request in accordance with Local Rule that this Honorable Court schedule a status conference to have a case management order entered. 10. Counsel for Defendant has been notified of the filing of this Motion and his concurrence is assumed. WHEREFORE, Plaintiffs pray Your Honorable Court to schedule a Status Conference. MARTSON LAW OFFICES By •\ David A. Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Date: August 26, 2014 CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Motion was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Jason P. Kutulakis, Esquire Abom & Kutulakis 2 West High Street Carlisle, PA 17013 MARTSON LAW OFFICES Tr cia D. E•I enroad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: August 26, 2014 1 s KENNETH R. WAIDELICH and : IN THE COURT OF COMMON PLEAS OF SABRINA A. SPIRITO, husband and wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. : NO. 2013-945 : CIVIL ACTION - LAW MADISON & SONS CONSTRUCTION, : LLC, ORDER AND NOW, this day of �,�� / , 2014, upon consideration of Plaintiffs' Motion for a Status Conference, said Status Conference is scheduled for /10 140-0.2,- /3 , 2014, at JJ O, A.m., in Courtroom No. 4=1- of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, cc: vid A. Fitzsimons, Esquire - Attorney for Plaintiffs Jason P. Kutulakis, Esquire - Attorney for Defendant W I 9/1/11/ CD C C..) r, cry cji ;=T, --- z 7J —; t, rrr ,LTi N i .y C. (("90110 KENNETH R. WAIDELICH AND SABRINA A. SPIRIT° Husband and wife PLAINTIFFS V. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA MADISON & SONS CONSTRUCTION, LLC DEFENDANT : NO. 13-945 CIVIL 1:=1 St) c_n N) IN RE: SCHEDULING CONFERENCE ORDER OF COURT AND NOW, this 13th day November, 2014, after status conference with counsel; IT IS HEREBY ORDERED AND DIRECTED that: 1. All discovery in this matter shall be completed on or before April 30, 2015. 2. Plaintiff's expert reports shall be filed on or before June 5, 2015. Defendant's expert reports responding to the Plaintiff's expert reports shall be filed on or before July 10, 2015. Any Plaintiff rebuttal expert report shall be filed on or before July 31, 2015. 3. Any dispositive motions, if applicable, shall be filed on or before August 29, 2015. These motions will be set down for argument on or before September 18, 2015. Argument on the motions will be held during the October 9, 2015, Argument Court. 4. The case will be set down for trial on or before October 19, 2015. Pre-trial Conference in the case will be held on November 25, 2015. Trial in the matter will be held beginning December 7, 2015. By the Court, A. Fitzsimons, Esquire Counsel for Plaintiff P. Kutulakis, Esquire Counsel for Defendant bas