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HomeMy WebLinkAbout04-5530f COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. 04-5530 Civil Terr NOTICE OF APPEAL NOTICE OF APPEAL FROM Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. NAME OF APPELLANT Alkr?? 0ovA So I, ADDRESS OF PPEL T r' DATE OF JUDGMENT IN THE-CASE 4F (Pt ,tn DOCKET /0J `iii I G VSh, rn -h D M o. 77 CV -- 000 0 Z 9?? OY MAG. DIST. NO. of - 1 _ 0 J koolks NAME OF D.J. f CL1ct r b is CI e v e n STAT ZIP CODE This block will be signed ONLY when this notation is required under Pa. R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. (Defendant)' VS ?' 6LV I ? -h n p(,) ,.f SIG T RE OF APPELLANT R ATTORNEY O AGENT If appellant was Claimant (see Pa. R.C..D.J. No. 1001(6) in action before a District Justice, A COMPLAINT MUST BE FILED within twenty (20) days after filing the NOTICE of APPEAL. Signature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon CV*V, ? o R© rnS C am] ? - appellee(s), to file a complaint in this appeal 111 Name of appellee(s) ` 1 111 (Common Pleas No. 04-5530 Cvi.l Term ) within twenty (20) days a service of rule or suffer entry of judgment of non pros. 4 _ A 5 j"t Signature of appellant or ap6mey or agent RULE: To appellee(s) 11L- Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. ?. Date: Nov. 2 20 03 Signature f rotho a D uty YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 COURT FILE TO BE FILED WITH PROTHONOTARY ? i PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served a copy of the Notice of Appeal, Common Pleas No. , upon the District Justice designated therein an (date of service) 20 [] by personal service ? by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) on 20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. .. . . (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF 20 Signature ofafrant Signature of official before whom affidavit was made Title of ofricial My commission expires on 20 C C rrtr q 73 ? . N C C•' ~r? a,t AOPC 312A - 02 ':OMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag. Dist. No.: 09-1-01 DJ Name: Hon. CHARLES A. CLEMENT, Address: 400 BRIDGE STREET OLDE TOWNE COMMONS NEW CUMBERLAND, PA Telephone: (717 ) 774 - 59 89 MARY THOMPSON 1127 SOUTH HARRISBURG STREET OBERLIN, PA 17113 v TR1S IS TO NOTIFY YOU THAT: Judgment: NOTICE OF JUDGMENT/TRANSCRIF PLAINTIFF: CIVIL CASE NAME and ADDRESS FCUSTOM PATIO ROOMS OF CENTRAL PA 4609 GETTYSBURG ROAD MECHANICSBURG, PA 17055 L VS. DEFENDANT: NAME and ADDRESS FTHOMPSON, MARY 1127 SOUTH HARRISBURG STREET LOBERLIN, PA 17113 Docket No.: CV-0000297-04 Date Filed: 6/22/04 FOR PT•ATNTTFF 0 Judgment was entered for: (Name) CUSTOM PATTn ROnMS OF C`RNTRAT. 0 Judgment was entered against: (Name) THnMPSnN, MARY in the amount of $ 8,117.00 on: (Date of Judgment) 1 n/04/04 0 Defendants are jointly and severally liable. Damages will be assessed on: This case dismissed without prejudice. Amount of Judgment Subject to El Attachment/42 Pa.C.S. § 8127 $ Portion of Judgment for physical damages arising out of residential lease $ (Date & Time) Amount of Judgment $ 6,528.00 Judgment Costs $ 117.00 Interest on Judgment $ 472.00 Attorney Fees $ 1,000.00 Total $ 8,117.00 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTERTHE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR DISTRICT JUSTICES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE DISTRICT JUSTICE. , UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE DISTRICT JUSTICE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. 4, `^ 4 V ..? 0 C T _ 2004 Date .w District Justice- I certify that this is a true and correct copy of the record of the proceedings containing `the judgment. Date District Justice My commission expires first Monday of January, 2008. SEAL AOPC 315-03 DATE PRINTED: 10/05/04 2:16:27 PM JR. -SUITE 3 17070 U? C? C? ?V ?v r?a C;) +Y? y? V i q c? v G s C] ^hi ".)ffu? i1J aeL' ?- W 3 ? ?L r nos`- t_ :. ra --"?•S 'G9 d yos k in certified a3 w, (p o X1.75' at z i C3 Retum RecieP F ae , C (Endorsement Regr rr.d) f t _ ?1U.t117 ,? C3 peslriotedentjReQ1 i nsd) e -D (Endorse k r T-9 Total Postage 8 Fees ?? __- ••--'~s1 f? ------------------ O ent zb - p ?th YNl_ T? Sheet, APz'No• I 1 t?' ?? (b A e.-- ........- 0 -Tx` G F PROOF OF SERVICE OF NOTICE OF APPEAL RUt.F -O ' --*` CO" "11 (This proct of sorvice MUST BE FILED Wl THIN TEN (10) DA YS AF7 "- ; COMMONWEALTH OF PENNSYLVANIA COUNTY OF Cumberland : ss AFFIDAVIT: i hereby (swear) (affirm) that I served 1? ^J n1 7+ N rp r C? a cop?r of the Notice of Appeal. Common Pleas No. 04-5530 1 , €.J,strict Justice ? .1 (date of service) Nov., 6 2004 t J X] by sender's receipt attached ; and upon the apt,-.+.-e (r-"d) John DeLrorenzo, Esq. Nov. 6 20 04 t _ _mai service } by?certi}ie(registered) mail, sender s receipt attacht (S191tvFtN) (A_ZIRME 7) AND SUBSCRIBED BEFORE E fQ ? yn - , 200 THIS DAY OF /L,?Y Signature ofp #1Cr t belorc who atfttlavit was made Titre of o rcrai My commiss;on expires cr 20 g . COMMONWEALTH OF PENNSYLVANIA NclM Sod Robinderla Y. Straimw Notary PW* Cky Of Hartidm% C?auphin Courrdyy My CorrtstdaWm Explras Aug. 24, 2008 Member. Pennsylvania Association Of Notaries v ;?JE?r7?z! IY p? ?t7i?ni ADPC 312A - 02 CUSTOM PATIO ROOMS OF : IN THE COURT OF COMMON PLEAS CENTRAL PA, INC. : CUMBERLAND COUNTY, PENNSYLVANIA Counter Defendant _ CIVIL ACTION - LAW NO. 04-5530 MARY THOMPSON, Counter Plaintiff JURY TRIAL DEMANDED NOTICE TO PLEAD 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 New Matter and Counterclaim 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 Counterclaim or for any other claims or relief requested by the Counter-Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 CUSTOM PATIO ROOMS OF : IN THE COURT OF COMMON PLEAS CENTRAL PA, INC. : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : CIVIL ACTION - LAW : NO. 04-5530 MARY THOMPSON, Defendant : JURY TRIAL DEMANDED Defendant's Answer with New Matter and Counterclaim 1. Admitted 2. Admitted. 3. Admitted. By way of further answer, Defendant avers that the original site for the room changed after the Sales Agreement was executed. The documentation concerning the site change covers several months including January 2003 through May 2003. Therefore although the terms in the Sales Agreement speak for itself, standing alone the terms do not provide the full and complete record and context of the entire transaction between Plaintiff and Defendant. It would be inappropriate not to look towards supplemental documents of the Sales Agreement to understand the context in which the parties understood the transaction. (See Exhibit "C") 4. Admitted in part. Denied in part. It is admitted there was an Agreement between Plaintiff and Defendant. It is denied that the Sales Agreement serves as an effective disclaimer of the implied warranties as to fitness for use and/or the implied warranty of reasonable workmanship. 5. Denied. Defendant denies that Plaintiff performed all services, provided all goods required , satisfied fully all of its contractual obligations under the Contract. By way of further answer, Defendant avers that the -4bafomization" of the product and services contracted never occurred, since the Patio room work is not finished to suit Defendant it is unfinished and incomplete. Further, Defendant avers that the result of Plaintiff s services performed is a room whose functionality is substantially impaired and whose use is diminished as to the fundamental purposes for which it was intended, namely habitability and keeping out the elements. 6. Admitted in part. Denied in part It is admitted that the assembly of the walls, doors and ceiling and some other components occurred on or about June 17, 2003. However it is denied that, by implication the June 17, 2003 date is the date that Plaintiff fulfilled all obligations under the contract. The full and satisfactory performance of the contracted obligations in accordance with the lawful terms require that the resultant product or service be free from defects and defective functionality. 7. Denied. It is denied that Defendant has failed to adequately pay, pursuant to the Contract, for goods and services rendered by Plaintiff. Byway of further answer, by December 2003, Defendant had, in fact, in a timely manner and with good faith, paid to Plaintiff over $12,000.00 for a project whose total amended bill was over $17,000.00. Defendant denies receiving any benefit as a result of Plaintiff's performance, but rather Defendant is in fact, continuously experiencing the ongoing and continuous defects and non-conformities that impair the functionality of the room as a whole. 8. Denied. By way of further answer, Defendant denies being indebted to Plaintiff without Plaintiffs full performance. Furthermore, Defendant has not waived any contractual requirements, express or implied (See New Matter) and believes that Plaintiff s full performance includes fulfilling the duty to render professional quality work and Page 2 of 14 workmanship that results in a product that 4t-Wally is sufficient for its intended use. Plaintiffs failure to perform in a manner that satisfies that duty is a material breach of the contract and such non-performance goes to the essence of the basis of the contractual relationship. 9. Admitted. 10. Admitted in part. Denied in part. Defendant avers that she has never categorically refused to pay Plaintiff, but has insisted upon the Plaintiff's fulfilling its obligations in a legal and complete manner. Since June 2003, Defendant's has communicated this fact to Plaintiff orally and in writing. 11. Admitted in part. Denied in Part. By way of further answer, Defendant has repeatedly-demanded that Plaintiff fulfill its obligation and repair or correct the defects in the patio room and Defendant has allowed Plaintiff whatever time and access necessary to complete their task. 12. Admitted. 13. Admitted. 14. Denied. The allegations contained in paragraph 14 of Plaintiff's Complaint are denied, since the allegations are legal conclusions to which no response of pleading is required. 15. No answer required. 16. Admitted in part. Denied in part. (See Exhibit "A") It is admitted that Section 6 of the contract provides that venue is Cumberland County, but only for Custom Patio. It is denied in that for this contract of adhesion, under Section 3. Arbitration the Defendant is relegated to settle for arbitration under Construction Industry Arbitration Rules or Better Page 3 of 14 Business Bureau rules with Harrisburg as the venue of the hearing, and only Custom Patio being entitled to all costs, attomey fees, etc.; if Custom prevails. No mention of costs, attomey fees if Defendant prevails. COUNTI BREACH OF CONTRACT 17. No further response is deemed necessary of paragraph 17 of Plaintiffs Complaint inasmuch as the same does not contain any factual allegations. 18. Denied. The allegations contained in paragraph 18 of Plaintiffs Complaint are denied, since the allegations are legal conclusions to which no response of pleading is required: 19. Denied. The allegations contained in paragraph 19 of Plaintiff's Complaint are denied, since the allegations are legal conclusions to which no response of pleading is required 20. Denied. The allegations contained in paragraph 20 of Plaintiffs Complaint are denied, since the allegations are legal conclusions to which no response of pleading is required 21. No answer required as the Contract clause speaks for itself. 22. Admitted. 23. After reasonable investigation, Defendant is unable to admit or deny the averments in this paragraph because the information is solely within the possession of Plaintiff. 24. After reasonable investigation, Defendant is unable to admit or deny the Page 4 of 14 averments in this paragraph because the inf-6ifKation is solely within the possession of Plaintiff. 25. Admitted in part. Denied in part. Itis admitted that the Contract terms speak for itself. It is denied in that the allegations contained in paragraph 25 of Plaintiff's are legal conclusions to which no response of pleading is required. 26. Admitted in part. Denied in part. It is admitted that the Contract terms speak for themselves. It is denied in that the allegations contained in paragraph 25 of Plaintiff's are legal conclusions to which no response of pleading is required. 27. Denied. The allegations contained in paragraph 27 of Plaintiff's Complaint are denied, since the allegations are legal conclusions to which no response of pleading is required.- 28. Admitted in part. Denied in part. It is admitted that Defendant is without knowledge of Plaintiffs ability to accurately estimate the total costs to litigate this matter. It is denied that any interest is owed by Defendant to Plaintiff prior to full and satisfactory performance by Plaintiff of the required Contract obligations. COUNT II (Quantum Meruit 29. No further response is deemed necessary of paragraph 29 of Plaintiff's Complaint inasmuch as the same does not contain any factual allegations. 30. Denied. Defendant avers that she has suffered a loss of the enjoyment of her patio room and has to suffer the cost of restoration as well. Such restoration is Page 5 of 14 estimated to be greater than the monies clairrte by Plaintiff. Defendant further avers that Plaintiffs performance resulted in numerous visible defective and non-conforming conditions, including but not limited to: a roof thatslopes too low for the-existing residence and known degree of house pitch and relationship to the surrounding property grade and slope; an improperly located underground drainage pipe that exits from underneath the floor and attempts to drain water up-hill away from the Patio room; inadequate size, number and placement of the roof down spout resulting in ineffective roof drainage that is in a sheet flow of water rather than water efficiently channeled to flow into an adequately designed and located gutter system. The resultant un-channeled water flows indiscriminately over windows and doors. Defendant avers that there are several more defective conditions whose cause and cure is only clearly ascertainable with the assistance of experts and at significant additional cost to Defendant. Defendant will seek to amend this Answer when the actual amount has been ascertained. 31. Denied. Defendant reiterates the answer at Paragraph 30 and avers that Plaintiff as builder-vendor has conferred no benefit to Defendant home owner and in fact Plaintiff as the builder-vendor has been over-compensated in light of the labor and material and services provided to date. 32. Denied. Defendant avers that it would be patently unjust to further confer any more benefits on a Plaintiff who has not performed with the degree of skill and care necessary to fulfill its contractual obligation, especially where Defendant is forced to endure the additional inconvenience of further repairs and the associated expenses as a direct result of Plaintiff's actions. Additionally, Defendant faces the further loss of income also as a direct and proximate result of Plaintiff's failure to perform in a professional manner with Page 6 of 14 the appropriate workmanship skills and qualms d-Fresult. The estimated cost of the repair and restoration is far greater than the amount of money claimed by Plaintiff. 33. Denied. Defendant avers that Plaintiff is not entitled to quantum merit where no benefit has been conferred. By way of further answer, Defendant has reason to believe that there is a real likelihood that an expert may recommend total removal as the most cost effective option rather than attempting to repair and replace various components to the property. In this case, the potential total cost of disassembly and removal may be at least equal to if not greater than the value of the original agreement of approximately $17, 588.00. NEW MATTER AND COUNTERCLAIM 1. Paragraphs 1 through 33 are incorporated herein as if set forth in their entirety. 2. Mary Thompson (hereinafter referred to as "Counter-Plaintiff") is an adult individuals who resides at 1127 South Harrisburg Street, Oberlin, PA 17113. 3. Custom Patio Rooms of Central Pennsylvania (hereinafter referred to as "Counter-Defendant") is a Corporation with a principal place of business at 4609 Gettysburg Road, Mechanicsburg, PA 17055. 4. On or about September of 2002, Counter-Plaintiff, a retired senior citizen, met with Counter-Defendant's sales agent to request information concerning construction of a patio room at her house. At this initial meeting, Counter-Plaintiff expressed that she had seen some of Counter-Defendant's advertisements (Ads Similar to Exhibit "13-1 "") Page 7 of 14 previously been given as the quality and levefi 5f service to expect. In fact, Counter- Plaintiff's copies did not have a complete version of the disclaimers and no signature as to when the contract was accepted by Counter-Defendant or by whom. 10. At all times relevant, Counter-Plaintiff, relied on the expertise of Counter- Defendant as the builder-venddrwho exercised complete control overthe location, design, manufacture, assembly and installation and the standard of care required to assemble the final product.. 11. The Counter-Defendant made the original site selection at the time the Sales Agreement was executed and Counter-Defendant changed the location due to local prohibitions as a result of its proximity to the property's septic system. 12. The Counter-Defendant knew that the original site had to be relocated, and knew or should have known that a complete re-analysis and assessment for the design, costs and risks associated with the new site requirements must be completed as well. Counter-Defendant did not fully disclose the risks and costs of the new site with the Counter-Plaintiff or offer to or allow her the opportunity to rescind the Agreement before any further costs had been incurred. 13. Counter-Plaintiff now has reason to believe that Counter-Defendant kept certain component specifications unchanged as a money saving device that benefited Counter-Defendant rather than Counter-Plaintiff. 14. Counter-Plaintiff was advised to execute another Addendum in order to cover increased costs for the additional work necessary to accommodate the new site which required a new cement floor, and knee walls et cetera. 15. Counter-Plaintiff was not advised of the significance of the site change nor Page 9 of 14 offered the opportunity to rescind the Sales Agrdement given the likely increased costs and risks beyond that for which she had initially bargained. 16. Counter-Plaintiff was further advised by Counter-Defendant's agent to hire a particular masonry contractor by name; Defendant did in fact retain that particular individual to execute the Plaintiffs specifications for the foundation, floor and walls of the new site. Said masonry contractor had worked previously with Counter-Defendant on numerous occasions. On this project said masonry received oversight and direction directly from the Counter-Defendant as to the scope and requirements for his work. 17. The Counter Plaintiff was advised by the aforementioned masonry contractor that he had communicated to the Counter-Defendant the fact that the specifications he was required to follow for the floor foundation, knee wall, and footers et cetera would, in his opinion, not be adequate for the application intended. 18. Almost immediately afterthe walls, roof, windows and doors were assembled in June 2003, the Counter-Plaintiff began to experience problems such as water leakage to the walls, doors and windows, mold growth, doors and windows misfitting, the unfinished wooden beam being water stained from the roof water, flaking caulking from windows and doors, drainage pipes not efficiently functioning due to ineffective location. 18. Plaintiff's actions and attempts to force an inappropriate design specification, and failure to assemble the room components with the standard of care warranted by its advertisements and relied upon by the Defendant is the direct cause of the damages suffered by the Defendant. 20. The estimated cost to repair the aforementioned damages are in excess of the sale price of the goods and services Counter-Defendants sold to Cowinter-Plaintiffs Page 10 of 14 which was $17,588.00. COUNT I Consumer Protection Law 21. Paragraphs 1 through 20 are incorporated herein as by reference as if set forth in full. 22. At all times relevant hereto, Counter-Defendants were engaged in trade or commerce as defined in the Consumer Protection Law, 73 P.S. § 201-2(3). 23. Pursuant to Section 9.2 of the Consumer Protection Law, Counter Plaintiff avers that Counter Defendants' acts violate Section 3 of the Consumer Protection Law, 73 P.S. § 201-3, by violating the following subsections of Section 2(4) of the Consumer Protection Law, 73 P.S. § 201-2(4): (v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have; (vii) Representing 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; (ix) Advertising goods or services with intent not to sell them as advertised; (xiv) Failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made; (xvi) Making 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; Page 11 of 14 (xxii) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding 24. As a result of Counter-Defendants` violations of the Consumer Protection Law, Counter-Plaintiff has suffered a loss of money or property in that she has paid money for services, labor and materiat and not received what she was promised or bargained for. WHEREFORE, Counter-Plaintiff respectfully requests this Honorable Court grant judgment in favor of Counter Plaintiff and against Counter-Defendant as follows: a) a judgment in the amount of three times the loss suffered by Counter- Plaintiff as proven at trial of this matter, which is at least $52,764.00; b) an award of attorney's fees and all costs of Counter-Plaintiff; and, c) such other relief the court deems just and proper. COUNT II Unconscionability 25. Paragraphs 1 through 24 are incorporated herein by reference as if set forth in full. 26. The sales agreement is a contract of adhesion which seeks to eliminate any semblance of equity to the consumers such as Counter-Plaintiff. It is unconscionable in the burdens and barriers it places on the Counter-Plaintiff through its disclaimers of any and all consumer rights and protections as well as it's enforceability clauses. A complete copy of the Sales Agreement is attached hereto as Exhibit "A". WHEREFORE, Counter-Plaintiff respectfully requests this Honorable Court grant Page 12 of 14 judgment in favor of Counter-Plaintiff and against Counter-Defendant as follows: a) a judgment in the amount of three times the loss suffered by Plaintiff as proven at trial of this matter, which is at least $52,764.00; b) an award of attorney's fees and all costs of Plaintiff; and, c) such other relief the court deems just and proper. G e Date: 3 I ?a Li da C. Taliaferro, Es ire P P Attorney 1. D. #: 26504 220 Verbeke Street Harrisburg, PA 17102 717-238-7670 Page 13 of 14 CERTIFICATE XF -SERVICE And now, this ?-ay of December, 204,1 do hereby certify that I have served a true and correct copy of the foregoing document on the person listed below at their respective address, via first-class mail, postage prepaid. John DeLorenzo, Esquire Goldberg Katzman, P.C. 320 Market Street PO Box 1268 Harrisburg, PA 17108-1268 Attorneys for Plaintiff Robert Black Custom Patio Rooms of Central PA, Inc. 4609 Gettysburg Road Mechanicsburg, PA 17055 WCC ? - i "" -9 11 vo M=zZil 0 1- . Talra o, Esquire 220 Verbeke Street Harrisburg, PA 17102 717-238-7670 Page 14 of 14 VERIFICATION The undersigned, having read the attached, verifies that the same is based upon information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language is that of counsel and not the undersigned. The undersigned verifies that he/she has read the attached and that it is true and correct to the best of his/her knpwledge, information and belief. To the extent that the contents of the attached are that of counsel, the signer has relied upon counsel in making this verification. This Verification is made subject to the penalties of 18 Pa.C .S. §4904 relating to unsworn falsification to authorities. Ma ET ompson sC1AL PROMOTION-? MHIC 120902 ct?STO?. PATIO ROOMS JOB # 07(y-/0 of Central PA DATE: 4609 Gettysburg Road, Mechanicsburg, PA 17055 Phone (717) 975-9291 Fax (717) 975-9292 SALES AGREEMENT stomer. intending to be legally bound, hereby employs Custom Patio Rooms of Central PA, Inc. to furnish all labor and materials reason- y required to perform the work described below, in accordance with the specifications indicated. me: , _r?e? :Z462?_ c Phone (Home) / f _K-1-14426 aw /y ?WIG9 (Work) APPROX10"TE dress: 11a1 s i? csR[? ?. ? INST. DATE .y: 02-jA1 State: -Zip: ! r7 11 F MOUDArsoFntttwrtr -eycttions: 11 F'?u ST. L1l11 M?CU t CTLLjrti OLOR: (,J{1tTf- OOF CEILING: AL41 DOF TOP: Akul 10. KTERIOR PANELING: .WiT2. tiTuefn lTERIOR PANELING: -Y EAR OUT- JLL CAPPING: „0 HEIGHT PR ION WALL LOW HIGH LEFT RIGHT WIDTH WALL STYLE SIZES 9-001 f ao SCRE G SKY ROOF ROOF ROOF STYLE pR&{yH= WEDGE I.G.3 LG. 4 SYSTEM S.P. GAB EXT Y HSE OVER HANG EXIT. DECK INSUL FLOOR EMENT D OTER, O YES YES HT. OF DECK L '"WIDTH PRO]. BUILD _5 I NO root Wall: (0 DUAL SLIDING IN MR-LOCKING WINDOWS WITH FULL SCREEN ? AIDING PATJO DOOR, ? CUSTOM SWING DOOR, TRANSOM: GLASS 0 OR PANPLKNEE WALL: GLASS 0 R PANELTELECTRICAL PREWIRES ® S& A[+t?Atri " 1;1 N eft Wall: Q DUAL SLIDING INTER-LOCKING WINDOWS WITH FULL SCREENS, ? LIDING PATIO DOOR, CUSTOM SWING DOOR, TRANSOM: GLASS0 ORPANELA KNEE WALL: GLASS 0 R PANEL P ELECTRICAL PREWIRES Z] !/ ?WSlf/i jaht Wall: 0 DUAL SLIDING INTER-LOCKING wnmws WITH FULL satEENs U3 &fo c ctT LIDiNG PATIO ROOF, ? CUSTOM SWI qG DOOR, TRANSOM: GLASSt> OR PANffi.JA KNEE WALL: GLASS 0 R PAT" ELECTR[CAL PREWIRES ustumer agress to pay Custom Patio Rooms of Central PA, Inc. as set forth below. Cost of lmprovement S ' <e 4. Initial invesanent S ?? ? 7. Due upon installation S Sales Tax $ 5. Unpaid Balance $ 11 , 1" o ^ ToW Investment S I a 9n 6. Upon delivery of materials S r? C?7C IIE DOWN PAYMENT IS AND SHALL BE A NON-REFUNDABLE DEPOSIT AFTER THE LEGAL CAN IDD HAS E" III$ AGREEMENT CONSTITUTES THE ENTIRE UNDERSTANDING OF THE PARTIES. SEE REVERSE FOR ADDITIONAL INFORMATION. te buyer(s) by signing, acknowledge(s) receipt of a copy of this contract, with all blanks suitably filled. I WTINFSS WHEREOF the parties intending to be legally bound execute this agreement is 1>1 day of rr++?? 20-01 Signature uthoriaed Agent, Custom Patio Rooms of Central PA, Inc. No ve 1Wrrremenerreeognlr[ i pproved by Date stpax" e earlrabxftwzWsaaodtlat4ttsrltaasagliese+usraswiattfglasfieiirfbttsbos op.narrsas.ri.rasSheetaatidadass/eaasa! xa fans far as expYeadon of this dgbL' -------------------------------°°--------------'--------------------------------------------------°°-----__-. NOTICE OF CANCELLATION w may cancel this transaction, without any penalty or obligation, within three busiam days from the above data U you cancel, ty property traded in, any payments made by you under the contract or sale, and any negotiable instrument executed by you wM b Customer, intending to be legally bound, hereby employs Custom Patio Rooms of Central PA, Inc. to furnish all labor and materials reason- ably required to perform the work described below, in accordance with the specifications indicated. Name: ,n_et/ ??fILrYJitN Phone (Home) / 1? --Lam wim Address: /c?`7 s fled -ST- (Work) APPROX]MA INST. DATE City: ?L?l' flli?l State: Zip: 1 `? l l FROUDATa OFACM51T Directions: (T j F`?is )rrr1N S?. Liu 1 441) h rr41 F uBw 4'-+_l •-?tcws i,nr'v1 - ,-. ?j -?la??,? a!??_ COLOR: 011,Z- ROOF CEILING: AL-4 ROOF TOP: !4.U m. EXTERIOR PANELING: lt?f1d7?? 57uCLf"? INTERIOR PANELING: AP I, ;11;;j;' QC gi C20 TEAR OUT: -WIDTH PROJ• ' FULL CAPPING: 2" ? BUILD Front Wall: DUAL SLIDING IN ER-LOCKING WIIJDOWS WITH FULL SCREENS SLIDING PATIO DOOR, 0 CUSTOM SWING DOOR, TRANSOM: GLASS C> OR PANEL KTiEE WALL: GLASS O OR PANEL ELECTRICAL PREWIRES ci Left Wall: DUAL SLIDING INTER-LOCKING WINDOWS WITH FULL SCRE@IS, }Zj SLIDING PATIO DOOR, [] CUSTOM SWING DOOR, TRANSOM: GLASS O OR PANED KNEE WALL: GLASS O J OR PANEL )q ELECTRICAL PREWIRES ZD 'LJ Customer egress to pay Custom Patio Rooms of Central PA, Inc. as set forth below. 1. Cost of Improvement S__ 96 4. Initial Investments 5 1 r 7. Due upon installuion $ 2. Sales Tax S S. Unpaid Balance $ 6 ran 3. Total Investment S ti. Upon delivery of materials ZXPIR THE DOWN PAYMENT IS AND SHALL BE A NON-REFUNDABLE DEPOSIT AFTER THE LEGAL CAN RAN E$B10D IiAS THIS AGREEMENT CONSTITUTES THE ENTIRE UNDERSTANDING OF THE PARTIES, SEE REVERSE FOR ADDITIONAL WORMATION. The buyer(s) by signing, acknowledge(s) receipt of a copy of this contract, with all blanks suitably filled. IN WITNESS WHEREOF the parties intending to be legally bound execute this agreement this „t---? day of 20 CIZ t I? .--? r ? Sigmature ??. Authorized Agent Custom Patio Rooms of Central PA, inc. No agnamaus raognise Approved by Date Signature "You, the buyer may cancel this purchase any time prior to midnight of the third business day after the date of purchase. See attached notice of tatceUa- tion form for an explanation of this right." NOTICE OF CANCELLATION You may cancel this transaction, without any penalty or obligation, within three business days from the above date. N you tanoey any property traded in, any payments made by you under the contract or sale, and any negotiable imttrument ettcuted by you will be returned within ten business days following receipt by the setter of your cancellation notice, and any security interest arising out of the transaction willbe cancelled. U you canal, you must malts available to the seller at your resideaee in substadiWy as good tMtwlsaattwhaaHlslsMalir?Mig?IrlM?lti?]MatsntisHll?lt?arsiitMRrradtCrr]twoaR,rlNaii?e??wi?Leettu- lions of the seller regarding the return shipment of the goods at the seder's expenie and risk. If you do make the goods available to the seller and the seller does not pick them up within twenty days of the date of your notice of cancellation, you may retain or dis- pose of the goods without any further obligation If you fait to make the goods available to the seller, or If you agree to return the goods to the seller and faB to do so, then you remain liable for performance of an obligations under the contract. To canal this transaction, mail or deliver a signed and dated copy of this cancellation notice or any other written notice, or send a telegram, to Custom Patio Rooms of Central PA, Inc. at 4609 Gettysburg Road, Mechanicsburg, PA 170555 not later than midnight of Date HEIGHT PR 014 WALL LOW HIGH LEFT RIGHT WIDTH WALL STYLE SIZES ?? rt plo'I 9115•/ ?acl SCREE G SKY ROOF ROOF ROOF STYLE r PR WnW WEDGE LG.3 LG. 4 SYSTEM S.P. GAB EXT Y HSE OVER HANG EXIT, DECK INSUL FLOOR EMENT OTER YES O YES HT. OF DECK NO Buyer's Signature Date of Transaction 1c1SJG'3 Right Wall: Q DUAL SLIDING INTER LOCKING WINDOWS WITH FULLS S Q In,0 r/ C ci7 KNEE WALL: GLASS O SLIDING PATIO DOOR Q CUSTOM SWING DOOR, TRANSOM: GLASSO ORP ANELAk OR PANEL ELECTRICAL PREWIRES cuts except as is specifically written on the face of this contract, and that no such promise or representations have been offered as an ducement for signing, it being the intent and agreement of the parties that this contract constitutes the entire agreement and under- tnding of the parties. LIMITATIONS AND DISCLAIMER OF IMPLIED WARRANTIES. There are no warranties, expressed or implied, of mer- Lantabiliry or fitness for a particular purpose or otherwise which extend beyond the description on the face hereof given at time of sale. ARBITRATION. Any controversy or claim arising out of or relating to this contract, or the breach thereof, other than a collection tion instituted by Custom Patio Rooms of Central PA, Inc, in a distruct justice office, shall be settled by arbitration in accor- mce with the Construction Industry Arbitration Rules of the American Arbitration Association of Pennsylvania or the Better usiness Bureau, with the hearing being held in Harrisburg, Pennsylvania at a mutually agreed upon location, and judgement pon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. If Custom Patio Rooms of entral PA Inc. prevails, Buyer agrees to pay all costs including but not limited to reasonable artorneyi fees and legal costs to ustom Patio Rooms of Central PA, Inc.. . DAMAGES FOR BREACH OF CONTRACT. Because the products purchased are custom made, if the buyer cancels this order 4er the time allowed by law and the products purchased hereunder have been produced, buyer agrees contractor shall be entitled to 3% of the contract price, plus attorney fees of 15% if attorney is used for collection. . COLLECTIONS COSTS. The entire balance is due and payable upon installation unless otherwise specified in the body of the )nrract. A finance charge of 1-1/2% per month will be added to any outstanding balance. The finance charge begins from the date f installation. In the event that Custom Patio Rooms of Central PA Inc. should retain counsel and/or institute any suit against rstomer for the collection of amounts due under this contract, the customer agrees that Custom Patio Rooms of Central PA Inc. tall be entitled to all its toss, expenses and reasonable fees to its attomey(s) in connection therewith. . VENUE. The County of Cumberland County in the Commonwealth of Pennsylvania is hereby designated as the place of trial ,r any action or proceeding arising out of or in connection with this contact. PAYMENT. If payment is not made as agreed in full upon installation, all warranties on materials and workmanship are void. CONDENSATION is a natural result of moisture in the home and may vary with changes in temperature or humidity and does or indicate a defective or faulty installation or product. No warranties can be made that this will not occur. Additional information is railable upon request. . ADDITIONAL WORK DISCLAIMER Unless otherwise specified in this contract, no painting or staining of any kind will be 7cluded, and no electrical, no electrical box or service connections, plumbing, hating, air conditioning of any other items not stated i this contract. If any governmental agency or building official requires additional work other that what is stated in the contract, it will •e the Buyer's responsibility to have said work performed at Buyer's expense. 0. CONCEALED CONDITIONS. The contract price does not include' actual expenses incurred by Custom Patio Rooms of :entral PA, Inc. as a result of concealed, unusual or unknown conditions affecting the performance of the work to install the unroom and otherwise perform under the contract. Buyer agrees that the contract price shall be adjusted to equitably cover any dditional toss for work performed by Custom Patio Rooms of Central PA, Inc. said adjustments, if performed by Custom Patio rooms of Central PA Inc. shall be reflected in a change order to be executed by the Buyer. Buyer has the option to do this work, ontract with another parry or have Custom Patio Rooms of Central PA, Inc. perform the work at any additional cost to Buyer. 1. EXISTING STRUCTURES. No warranties an be made as to soundness or structural integrity of existing roofs, slabs, decks, rick, block, stone, wood or frame kncewalls. 2. EXISTING SIDING AND SHINGLES. Custom Patio Rooms of Central PA, Inc. cannot guarantee to match siding and hingles exactly, since dye lots and availability from manufacturers are subject to change without notice. 3. PERMITS. Where required homeowner is to obtain any necessary permits. Custom Patio Rooms of Central PA, Inc. will ?rovide room plans upon request. Note: Some municipalities may take several weeks to issue a permit. 4. CEMENT WORK. Cracks in cement slabs, block work and footers are a natural result of shrinkage and settling. No warranties an e made that cracking will not occur. Color on new mortar joints, cement block, or brick will not match. Due to equipment that may c used, excessive tracking or wear on yard may occur. 5. SCHEDULE DELAYS. Seller shall not be held liable for delays caused by strikes, weather conditions, delay in obtaining materials, r other causes beyond its control. 6. SERVICE. Custom Patio Rooms of Central PA, Inc. will provide free service for one year from date of installation. 7. ELECTRICAL WORK. No electrical hook up or connections will be made. No boxes or housing are supplied Prewires may be lose if specified is dtt lao* Of dis 4 WA Plift isroltssled ist emu= 4W Gomm Ad* Fwc *(Camml RA Ln. 1. BUYER WARRANTS that this contract is signed without any reliance upon any representation or promise of the contractor or his agents except as is specifically written on the face of this contract, and that no such promise or representations have been offered as an inducement for signing, it being the intent and agreement of the parties that this contract constitutes the entire agreement and under- standing of the parties. 2. LIMITATIONS AND DISCLAIMER OF IMPLIED WARRANTIES. There are no warranties, expressed or implied, of mer- chantability or fitness for a particular purpose or otherwise which extend beyond the description on the face hereof given at time of sale. 3. ARBITRATION. Any controversy or claim arising out of or relating to this contract, or the breach thereof, other than a collection action instituted by Custom Patio Rooms of Central PA, Inc, in a distruct justice office. shall be settled by arbitration in accor- dance with the Construction Industry Arbitration Rules of the American Arbitration Association of Pennsylvania or the Better Business Bureau, with the hearing being held in Harrisburg, Pennsylvania at a mutually agreed upon location, and judgement upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. If Custom Patio Rooms of Central PA Inc. prevails, Buyer agrees to pay all costs including but not limited to reasonable attorneys fees and legal costs to Custom Patio Rooms of Central PA, Inc.. 4. DAMAGES FOR BREACH OF CONTRACT. Because the products purchased are custom made, if the buyer cancels this order after the time allowed by law and the products purchased hereunder have been produced, buyer agrees contractor shall be entitled to 33% of the contract price, plus arrorney fees of 15% if attorney is used for collection. 5. COLLECTIONS COSTS. The entire balance is due and payable upon installation unless otherwise specified in the body of the contract. A finance charge of 1-112% per month will be added to any outstanding balance. The finance charge begins from the date of installation. In the event that Custom Patio Rooms of Central PA Inc. should retain counsel and/or institute any suit against customer for the collection of amounts due under this contract, the customer agrees that Custom Patio Rooms of Central PA Inc. shall be entitled to all its costs, expenses and reasonable fees to its attorney(s) in connection therewith- 6. VENUE. The County of Cumberland County in the Commonwealth of Pennsylvania is hereby designated as the place of trial for any action or proceeding arising out of or in connection with this contact. 7. PAYMENT. If payment is not made as agreed in full upon installation, all warranties on materials and workmanship are void. 8. CONDENSATION is a natural result of moisture in the home and may vary with changes in temperature or humidity and does not indicate a defective or faulty installation or product. No warranties can be made that this will not occur. Additional information is available upon request. 9. ADDITIONAL WORK DISCLAIMER. Unless otherwise specified in this contract, no painting or staining of any kind will be included, and no electrical, no electrical box or service connections, plumbing, heating, air conditioning or any other items not stated in this contract. If any governmental agency or building official requires additional work other chat what Is stated in the contract, it will be the Buyer's responsibility to have said work performed at Buyers expense. 10. CONCEALED CONDITIONS. The contract price does not include actual expenses incurred by Custom Patio Rooms of Central PA, Inc. as a result of concealed, unusual or unknown conditions affecting the performance of the work to immn the sunroom and otherwise perform under the contract. Buyer agrees that the contract price shall be adjusted to equitably cover any additional costs for work performed by Custom Patio Rooms of Central PA, Inc. said adjustments, if performed by Custom Patio Rooms of Central PA Inc. shall be reflected in a change order to be executed by the Buyer. Buyer has the option to do this work, contract with another parry or have Custom Patio Rooms of Central PA, Inc. perform the work at any additional cost to Buyer. 11. EXISTING STRUCTURES. No warranties can be made as to soundness or structural integrity of existing roofs, slabs, decks, brick, block, stone, wood or frame kneewalls. 12. EXISTING SIDING AND SHINGLES. Custom Patio Rooms of Central PA,, Inc. cannot guarantee to match siding and shingles exacrly, since dye lots and availability from manufacturers are subject to change without notice. 13. PERMITS. Where required homeowner is to obtain any necessary permits. Custom Patio Rooms of Central PA. Inc. will provide room plans upon request. Note: Some municipalities may take several weeks to issue a permit. 14. CEMENT WORK. Cracks in cement slabs, block work and footers arc a natural result ofshrinkage and settling. No warranties can be made that cracking will nor occur. Color on new mortar joints, cement block, or brick will not match. Date to equipment char may be used, excessive tracking or war on yard may occur. 15. SCHEDULE DELAYS. Seller shall not be held liable for delays caused by strikes, weather conditions, delay in obtaining materials, or otter causes beyond its control. 16. SERVICE. Custom Patio Rooms of Central PA, Inc. will provide free service for one year from date of Installation [- G,,?of 9tq -)4( cusTM PATIO ROO w ADDENDUM JOB # { ,lc' ? j C..- DATE OF ORIG. AGREEMENT DATE OF ADDENDUM NAME .:c .14 ADDRESS j / !-1/=- . 5 PHONE# C? i3 iSp,,-jt,jl -2a i i 13 (117) 1.3tj-- 'Ywlic- EXTRA WORK TO CONSIST OF: .'dap 19' fir=? "t Mll S e ai'?lOc?fl =T Al-C-,e-- -* r rP:`?s.yt fit' eT - (:s COST OF ORIGIONAL AGREEMENT/PROJECT COST OF ADDITIONAL WORK /*-- TOTAL COST OF PROJECT LESS APPLICABLE DEPOSIT/S LESS AM'T DUE ON DELIVERY OF MATERIALS DUE UPON INSTALLATION CUSTOM PATIO REP. DATE CUSTOMER DATE WHITE - Office YELLOW - Production ?? ?dff PA PATIO Rooms M -8777-19`17 +aW .? it t6 6 .44 $ t November 26, 2002 Dear Ms. THOMPSON Congratulation on your recent Patio Room purchase. Your confidence in Custom Patio Rooms will bring you many years of enjoyment as well as adding value to your home. Should you decide or your municipality require that a building permit is necessary, enclosed you will find a copy of your drawing and our insurance certificate for workmans compensation, both of which maybe necessary for obtaining a building permit. Some municipalities have certain requirements that require us to get inspections done as the job is being completed, these inspections will be given to you when you obtain your building permit. It's the responsibility of the customer to make sure that Custom Patio Rooms gets all the necessary paper work from the municipality to assure all the requirements are met. If this information is not forwarded to Custom Patio Rooms it may delay the completion of the patio room and could reflect additional cost the the customer. If additional information is required please contact our production department. Please keep in mind that some municipalities may take several weeks to issue a permit. Thanks again. Custom Patio Rooms of Central Pa. When attention to detail counts, yoU can count on Custom } Patio Rooms. We will not be satisfied until you are satisfied that your room was manufactured and -installed beyond your expectations! Our Pledge To Our Customers: See Our Product Information • Finest Quality Materials • No Hidden Charges...Ever • Courteous Estimates • Certified Instaliers...No Subcontractors • Workman's compensation and full liability insurance • Sank gate financing • Inspection upon completion AMERICA is REMODEUNG with Lim Close Window http://www.custompatiorooms.com/residentia1.htm1 12/4/2004 L:xAt k4 ,r O T1 4 "Unlike other companies we are the manufacturer and sell Custom Patio Rooms directly to you, the homeowner" There's po middle man, which means you save money on the highest quality sunrooms in the industry. Our melnufacturing plant is located just outside of Pittsburgh, PA. :very room is custom designed by our 'certified room designers', manufactured to your specifications and completely built lay our `certified installers' for your home. We custom build each room to your specifications - allowing you to enjoy the room of your dreams. 'Ole offer the largest variety of colors and styles of sunrooms in the industry. With more than 20 years of experience, we can guarantee you the finest quality patio room. Close Window St hLN ?.•4 i?tl :1 r4ca- ?_m tt.s i-" I http://www.custompatiorooms.com/manufacturing.html 12/4/2004 At custom Patio Rooms, we pride ourselves in quality workmanship. Our own factory trained - 'certified installers' construct every Custom Patio Room Project-no Subcontractors! This ensures you receive the most professional service and installation possible, and all of ou'r rooms are backed by the strongest warranty in the industry. Custom Patio rooms is a three-generation, family owned manufacturing and installation company. Richard Edwards, company president, founded Custom Patio Rooms in 1983. F 01 3. See what our customers have to say about us! Vie\n the testimonials H ` ! T :z in recent years Richard Edwards was appointed to the board of directors of the National Association of the Remod0ling Industry, and in 2001 was elected Chairman of the Western Pennsylvania Setter Business Bureau. Close Window http://www.custompatiorooms.com/aboutus.html 12/4/2004 Page 1 of 1 At Custom Patio Rooms, we pride ourselves in quality workmanship. Our own factory trained 'certified installers' construct every Custom Patio Room Project... no Subcontractors! This ensures you receive the most professional service and installation possible, and all of our rooms are backed by the strongest warranty in the industry. Custom Patio rooms is a three-generation, family owned manufacturing and installation company. Richard Edwards, company president, founded Custom Patio Rooms in 1983. See what our customers have to say about us! Vieti the testimonials HERE! Ask - I0 I In recent years Richard Edwards was appointed to the board of directors of the National Association of the Remodeling Industry, and in 2001 was elected Chairman of the Western Pennsylvania Better Business Bureau. Close Window http://www.custompatiorooms.com/aboutus.htmi 12/4/2004 A Custom Ratio Room is designed for your home, whether its a family €-oom, play room, office or that special hot tub room you've been dreaming of! Choose the style that best suits your home: `7 S^'":5ALS...'',.%(?Yr?,58YSv1Yse4 l5w'^i.t7'i?/`?.p'_w.. i)t%L1 C'>!1 fantastic views of the outside, and can be custom built to match the existing pitch of your home. Skylights and cedar center beam can be added to enhance the beauty of the cathedral style ceilings! Skylights can be added to any gable or studio style room, they are 2'x 4' and offer natural light in key areas. All Custom Patio Rooms can be designed and installed either as seasonal or insulated year round enclosures. Our insulated room use either 1/2" or 7/8" dual pane insulated glass. The roof and wall systems are also insulated, and we offer many special types of glass such as the Low-E and Solar Glass. Close V\ http://www.custompatiorooms.com/residential_prod.htmi 12/4/2004 i BUILDING PERMIT APPLICATION Swatara Township 599 EISENHOWER BLVD., SWATARA, PA 17111 - PHONE (717) 564-2551 23, Date •-<=?6-?3?? Permit No Ward No. Tax Map Parcel No. _ Property Owner TFiOMP ON tIARY ELIZABETH Telephone 117. S HARR1SBlJRG S1. STE.F_L10N LOT #0 DEV. % Property Location THIS CERTIFIES THAT THE PROPERTY IS IN A r,-s ZONING DISTRICT. Application is hereby made to Swatara Township for a Building Permit in conformity with the requirements of the Building Ordinance and any amendments thereto for the following described work: ALTERATIONS 10 ERECT A 1i.u 'X24.1T` ONE STORY METAL/rLAEG SUN l:lt ll' ALGITIC.,N OVER AND ATTACHED TO A CONCRETE ??OCTER/SLAFJ AT THE REAR OF A AS PER ATTArriEri DKAOINIGS. Type of Permit (New Bldg., Addition, Alter, Demo, Moving, Swimming Pool, etc Type of Bldg. or Structure `- ES I DEN I I. AI- (Residential, Apt., Commercial, Industrial) No. of Stories ONE Foundation Mat'l a Floor Const. 1 Roof Const. ti Ext. Wall Const. (I-Concrete, 2-Block, 3-Wood, 4-Steel, 5-Brick, 6-Stone) Other 1,0 PART OF ADDITION TO BE ERECTED NEAR SYSTEM SY +• - --_---- Bureau of Labor & Industry Approval: File No. Fee No. On Lot Sewage - State Permit No. / San. Sewer Connection Permit No. Water Supply E k 13-C 1 N Off Street Parking Spaces r x I ST I PJG Fire Place 'u, .3 Roof Material M`.' AL Basement [J ' A Baths ;iJ; A Garage Lot Size t 1 , ` 7.4 Front Yard Setback EXIST 1 NG Building Size ` ` X24 Rear Yard Depth Type of Heat F" % F. Bedrooms r° (Attached, Unattached, Basement, Carport) Square Feet 4u.0 37. 22, Left Side Yard Depth Right Side Yard Depth = 1. ;T 1 N G General Contractor Ci_i JOI'1 PAi 10 I'tCJCIM. OF CENTRFAI.... F Oi Address 46o9 GCTT`f SBUR,>> RD PA 17 6 5 Plumbing Contractor Address s Electrical Contractor Address , Powder Rooms N/ A ALL PERMITS MUST COVER TOTAL COST OF LABOR AND MATERIALS AT CURRENT MARKET VALUE Estimated Value $ 1. 2c ` ''' Permit Fee $ 17 6. `?`'' Cash etEtrenic? Pz - -J'2 NOTIFICATION FOR FOLLOWING INSPECTIONS REQUIRED: FOOTING FOUNDATION --FRAMING _ PLUMBING- FINAL _" BEFORE OCCUPA " I CERTIFY that the facts and estimated value set forth in this building permit application have been examined . best of my knowledge are true, correct, and complete. mnu? L+ r nrrrt r.?,.,r. nt+crn.. r a BUILDING PERMIT APPLICATION Swatara Township V` ; ?`? 599 FISENHOW ER BLVD., SWATARA, PA. 17111 -PHONE 717-564-2551 ©Cj Ward No. Permit No Tax Map Parcel No. 63- -x'-? - Q 5 S Date o !?'7 Q Property Owner - 17'(f)M P5D1/('/ Telephone IS? - ?6 Boo Property Location _ t (2 S t-l)::924z UST?t"_ :f? d2 Lot No. Name of Development THIS CERTIFIES THAT THE PROPERTY DESCRIBED ABOVE IS IN A P _S ZONING DISTRICT- Application is Itereby made to Swatara Township for a Building Permit in conformity with the requirements of the Building Ordinance and any amen is the for the following described work r Sr?,t.tfl t?s r/ t2 'A2 X !? t I ?. b "1?. l7 Type of Penmil-New Bldg. Addition Type of Bldg, or Struciure Residential ? Foundation Material .................. Floor Construction .................... Roof Construction .................... Exterior Wall Construction ....... Other Bureau of Labor & Industry Approval: File No. On Lot Sewage - State Permit Number Sanitary Sewer - Connection Permit No. Water Supply - Public Type of Heat -(iii Fire Place Basement: Full No, of: Baths Garage Attached Size of Lot Front Yard Set Back Left side Yard Depth General Contractor Address Plu g oniractor Address El ric ctor Private Gas Roof Material _ Partial Powder Rooms Garage Unattached Size of Building _ Fee No. _ Off Street Parking Spaces Electric Coal None Bedrooms _ Garage, Basement Carport Sq. Feet Va 7-10 q2 0a a4 6 - 66a Address ?7 r? fL7 4 All permits must cover total cost of labor and materials at current Market Value. 1 -7t'o t? Estimated Value $ _ Permit Fee $ C-71 0 '41 ?Z? O v c ' (J z? Cash Check I CERTIFY that the facts an estimated value set forth in this building permit application have been examined by me, and to the best of my knowledge are true, correct, and complete. SIGNATURE OF Ar tCANT SIGNATURE; OF BUILDING OFFICIAL NOTIFICATION FOR FOLLOWING INSPECTIONS REQUIRED: ?V Concrete Alter Demo Moving _ Swinr. Pool Commercial ? Apt. O Industrial ? No. of Stories Block Wood Steel Brick Stone ? ? O ? ? ? ? ? ? ? ? ? ? ? ? L3 ? ? ? ? Rear Yard Depth Right Side Yard Depth APPLICATION FOR ZONING PERMIT TOWNSHIP OF SWATARA PENNSYLVANIA Date Ward No. a Tax Map Parcel No. ?` -11b3-055 Permit No ]. ` t21 Application is hereby made to the TOWNSHIP OF SWATARA for a Zoning Permit in conformity with the requirements of Zoning Ordinance No. 1979-4 and any amendments thereto for the following described work: TH(A-I '01"I MAP EL14"ABETH 1717! Property Owner Telephone ._ 1-i AI'+.RI SB'?RG • 3.' . STEEL! i s 4 Property Location The undersigned applicant hereby applies for a permit to: Erect a structure To occupy or use for: ;."'' Add toasuucture RESIDENTIAL ATTACHED SUN 1-0011 Remodel a structure Present use of property: RES.IDEtITIAl, :It7%F11Mii'4J> LL711 Erect a sign Change a use EXISTING PROPOSED Paved Parking Spaces Required: rE•.L' ' t.i'' ?.-+111: t?l'I t! 'F.'.1i T?.?t+_• families Paved Parking Spaces Proposed: i'1t_itlf: stories Qii E material Estimated cost of proposed work: $ U.571.;'ENT111tL FES•Ii?ENTTAL Submitted herewith is a dimensioned plan of the lot showing proposed work and/or existing structures. R' ES I11-CNT T AL Use of adjoining lot or lots is Name of: rRt Owner Address •i. i. - S, l iA.ftR 1;3F`. _ `T THt=MP..;ON [1FiFi.' ELIZABETH S,TEELTUN, PA 1 11.3-:1 2 ' Lessee: 1.1 . y Architect: Address fl,''A 1-1/A Address Contractor: ddress 4r-),-)9 v GETT Y ?•BUR F,1! t?;_I=T"'11 Pr",T Ii"; F.0,011S OF r;ENTRAL F? IIF.+.'HANIt.'.I, Ii)IiG. Pf; 1 te:T - ZONE PERMIT This certifies that the property described above is in a 17. -- Zoning District. 1. Remarks: -+ ERE:! 'T A I?'; '?4' :)tlE ,T?iFY T.R4 ROtv-11 ADDTTT;"'N ATTACHE1' 1."' ME REAR.. {'F AF E ISTING `If? FAri'rFIELJ.ItIt? AS F.EF ATTA(.1-1F11. 2. The proposed work and use ;%S comply with the Zoning Ordinance. 3. A zoning permit for the above work and use is hereby ';I'1UITED . Amount of permit fee paid $ ?' !' t Zoning Officer rr7 0-cps 3 Ull LAW OFFICE LINDA C. TALIAFERRO, Esquire 220 Verbekv Street Harrisburg, R k-17102 Tel: 717-238-7670 December 13, 2004 Cumberland County Prothonotary Cumberland County Court of Common Pleas 4609 Gettysburg Road Mechanicsburg, PA 17055 RE: Custom Patio Rooms of Central PA vs. Mary E. Thompson No. 04-5530 Dear Prothonotary: Please enter my appearance in the above-captioned matter as counsel for Mary E. Thompson. All future correspondence regarding this matter should be directed to me at the address listed below. Should you have any questions, please do not hesitate to contact me at 717-238-7670. Respectfully, Linda C. Taliaferro, Esquire cc: Mary E. Thompson John DeLorenzo, Esquire Attorney I.D. No. 72190 GOLDBERG KATZMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiff CUSTOM PATIO ROOMS OF CENTRAL : IN THE COURT OF COMMON PLEAS PA, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, : CIVIL ACTION - LAW vs. MARY THOMPSON, Defendant. : NO. 04-5530 : JURY TRIAL DEMANDED TEN-DAY NOTICE OF TAKING DEFAULT JUDGMENT TO: Mary Thompson 1127 South Harrisburg Street Oberlin, PA 17113 DATE OF NOTICE: December 9, 2004 YOU ARE I N DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING, AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE, THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 By: GOLDBERG I MAN, P.C. DeLorenzo, Es nev ID #72190 Date: December 9, 2004 PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for Plaintiff 116686.1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage prepaid, addressed to the following: Mary Thompson 1127 South Harrisburg Street Oberlin, PA 17113 GOLDBERG j;ATZMAN, P.C. By: JOI)h DeLoren'2-o, Esquire Date: December 9, 2004 ?-? r?..> c > ?1 C'? r i i ? r' L?3 '_." _Y; ?._ i? ''I i- ? ;`tl ??? -' `1) 4? CUSTOM PATIO ROOMS : IN THE COURT OF COMMON PLEAS OF CENTRAL PA, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION - LAW VS. NO. 04-5530 MARY THOMPSON, Defendant. NOTICE TO PLEAD To: Mary Thompson c/o Linda C. Taliaferro, Esq. 220 Verbeke Street Harrisburg, PA 17102 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PLAINTIFF'S PRELIMINARY OBJECTIONS TO THE DEFENDANT'S NEW MATTER AND COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, GOLDBERQ,KA, _,ZMAN, P.C. DATE: 13 ?y? dbffi?DeLorf&o, Esq. (I.D. #72190) ,320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108 (717) 234-4161 Counsel for Plaintiff, Custom Patio John DeLorenzo, Esquire Attorney I.D. No. 72190 GOLDBERG KATZMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys ttarneysfor Plaintiff CUSTOM PATIO ROOMS OF CENTRAL PA, INC., Plaintiff, vs. MARY THOMPSON, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-5530 JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM AND NOW this day of I. -A uti _, 2005, Plaintiff, Custom 17 1.11 Patio Rooms of Central PA, Inc. ("Custom Patio"), through its counsel John DeLorenzo, Esq., of Goldberg Katzman, P.C., hereby files its Preliminary Objections to the Defendant's New Matter and Counterclaim, as follows: 1. Nonjoinder of a Necessary Party 1. In paragraphs 16 and 17 Defendant makes mention of an independent contractor which she hired to perform masonry work on her property. 2. Defendant hired a contractor independent of Custom Patio to perform concrete work on her behalf. 3. As indicated in the Sales Agreement, Custom Patio does not perform concrete work nor does it take any responsibility for such. Such Sales Agreement, which is attached to the Plaintiff's Complaint, speaks for itself and is included herein by reference. 4. At the District Justice hearing, the Defendant admitted that she independently hired and paid such contractor as the contractor was not an employee or connected to the Plaintiff. 5. It was shown at the District Justice hearing that the independent contractor was responsible for any alleged damage to the Defendant's property not the Plaintiff. Hence, the award to the Plaintiff by the District Justice. 6. It is averred that the independent contractor was the proximate cause of any alleged damage to the Defendant's property. 7. As such, Defendant has a cause of action against the independent contractor not the Plaintiff. 8. It is therefore averred that the Defendant should have sued the independent contractor for recovery of any alleged damages that were the result of the independent contractor's actions. 9. Accordingly, an objection is hereby made under Pa. R.C.P. 1028(5) for the nonjoinder of a necessary party, the independent contractor that performed the masonry work on the Defendant's property. 10. The Agreement which is the subject of this action states that the Defendant will be responsible to pay all costs, including attorneys' fees, if Custom Patio prevails in this action. WHEREFORE, Plaintiff respectfully requests this Honorable Court to sustain its Objection for the nonjoinder of a necessary party and enter an Order dismissing with prejudice the Defendant's New Matter and Counterclaim, that the Court award its costs CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follOVA's: Linda C. Taliaferro, Esq. 220 Verbeke Street Harrisburg, PA 17102 Date: January , 2005 By: l/ Jo eLorenzo, Esquire 32 arket Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Counsel for Plaintiff, Custom Patio c? ^a ` c? _ C ? c .? un -T) i?: ? ?? n _ ?. _ '? _`1 ? . .. -- . j ? ?:7 ....1 --C 01 Linda C. Taliaferro, Esquire Attorney I.D. No. 26504 220 Verbeke Street Harrisburg, PA 17102 Telephone: (717) 238-7670 Attorney for Defendant CUSTOM PATIO ROOMS OF : IN THE COURT OF COMMON PLEAS CENTRAL PA, INC. : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : CIVIL ACTION -LAW : NO. 04-5530 MARY THOMPSON, Defendant : JURY TRIAL DEMANDED NOTICE TO PLEAD 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 New Matter and Counterclaim 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 Counterclaim or for any other claims or relief requested by the Counter-Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Linda C. Taliaferro, Esquire Attorney I.D. No. 26504 220 Verbeke Street Harrisburg, PA 17102 Telephone: (717) 238-7670 Attorney for Defendant CUSTOM PATIO ROOMS OF : IN THE COURT OF COMMON PLEAS CENTRAL PA, INC. : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff MARY THOMPSON, Defendant CIVIL ACTION -LAW NO. 04-5530 JURY TRIAL DEMANDED DEFENDANT'S AMENDED ANSWER WITH AMENDED NEW MATTER AND COUNTERCLAIM 1. Admitted. 2. Admitted. 3. Admitted. By way of further answer, Defendant avers that Defendant to her detriment and in reliance on the skill, knowledge, expertise and experience of Plaintiff and accepted Plaintiff's recommendation for a new site for the patio room. Further, Defendant avers that Plaintiff failed to disclose to Defendant that Plaintiff had ordered the patio room components, i.e.,all the windows, walls, doors and roofing materials gutters, etc., based on the original site dimensions rather than the second site selected for the patio room 4. Admitted in part. Denied in part. It is admitted there was an Agreement between Plaintiff and Defendant. It is denied to the extent that the Sales Agreement was and is modified by Plaintiff's express or implied warranties of reasonable workmanship and quality of the goods and services provided and their habitability and fitness for a particular use. 5. Denied. Defendant denies that Plaintiff performed all services and provided all goods in a matter that satisfied fully all of its contractual obligations. By way of further answer, Defendant avers that the "customization" of the product and services contracted never occurred, since the Defendant's have refused to complete the patio room to suit Defendant. Therefore Defendant avers that it is unfinished and incomplete. Further, Defendant avers that to her detriment, the patio room's functionality is substantially impaired and its use to Defendant is diminished as to the fundamental purposes for such a room, namely habitability and keeping out the elements. 6. Admitted in part. Denied in part It is admitted that the assembly of the walls, doors and ceiling and some other components occurred on or about June 17, 2003. However it is denied that on said date the Plaintiff fulfilled all obligations under the contract in the full and satisfactory manner because the resultant product is ineffective and as to its functionality. 7. Denied. It is denied that Defendant has failed to adequately pay, pursuant to the Agreement, for any goods and services rendered by Plaintiff. By way of further answer, by December 2003, Defendant had, in fact, in a timely manner and with good faith, paid to Plaintiff over $12,000.00 but has not received from Plaintiff the value for which she has paid. Defendant denies receiving any benefit as a result of Plaintiffs performance of its obligations and duties under the Agreement, but Defendant to her detriment has paid over $17,000.00 and is continuously experiencing the ongoing and continuous defects and non-conformities that impair the functionality of the patio as it currently exists. 8. Denied. By way of further answer, Defendant denies being indebted to Plaintiff without Plaintiff's full performance. Furthermore, Defendant avers that Plaintiff's full performance includes fulfilling the duty to render professional quality work and workmanship that results in a product that is sufficient for its intended use. Plaintiffs failure to perform in a manner that satisfies that duty is a material breach of the contract and such non-performance goes to the essence of the basis of the contractual relationship. 9. Admitted. 10. Admitted in part. Denied in part. Defendant avers that she has never categorically refused to pay Plaintiff. By way of further answer, Defendant avers that after the assembly of the patio room components in June of 2003, did Defendant learn that the Plaintiff breached its duty to provide a product sufficient for its intended use. Defendant has demanded compliance but Plaintiff has since that time continually refused to do so.. 11. Admitted in part. Denied in Part. By way of further answer, Defendant has repeatedly demanded that Plaintiff fulfill its obligation and repair or correct the defects resulting from the design and assembly of the patio room components for a room of the dimensions of the current room site. Defendant allowed Plaintiff whatever access necessary to complete their duty to provide a product sufficient for its intended use. 12. Admitted. 13. Admitted. 14. Demurrer. Appeal from District Justice decision results in a de novo examination of the issues. 15. No answer required. 16. Denied. After reasonable investigation, Defendant is unable to admit or deny the averments in this paragraph because the information is solely within the possession of Plaintiff and not a part of Plaintiff's Exhibit A in that paragraph 6 is not on the Agreement at Plaintiff exhibit A. COUNTI BREACH OF CONTRACT 17. No further response is deemed necessary of paragraph 17 of Plaintiff's Complaint inasmuch as the same does not contain any factual allegations. 18. Denied. The allegations contained in paragraph 18 of Plaintiff's Complaint are denied, since the allegations are legal conclusions to which no response of pleading is required. 19. Denied. The allegations contained in paragraph 19 of Plaintiffs Complaint are denied, since the allegations are legal conclusions to which no response of pleading is required 20. Denied. The allegations contained in paragraph 20 of Plaintiff's Complaint are denied, since the allegations are legal conclusions to which no response of pleading is required 21. Denied . After reasonable investigation, Defendant is unable to admit or deny the averments in this paragraph because the information is solely within the possession of Plaintiff and not reflected on the face of Plaintiff Exhibit A. No answer required as the Contract clause speaks for itself. 22. Admitted. 23. After reasonable investigation, Defendant is unable to admit or deny the averments in this paragraph because the information is solely within the possession of Plaintiff. 24. After reasonable investigation, Defendant is unable to admit or deny the averments in this paragraph because the information is solely within the possession of Plaintiff, 25. Admitted in part. Denied in part. It is admitted that the Agreement speaks for itself. It is denied in that the allegations contained in paragraph 25 of Plaintiff's are legal conclusions to which no response of pleading is required. 26. Admitted in part. Denied in part. It is admitted that the Agreement terms speak for themselves. It is denied in that the allegations contained in paragraph 25 of Plaintiff's are legal conclusions to which no response of pleading is required. 27. Denied. The allegations contained in paragraph 27 of Plaintiffs Complaint are denied, since the allegations are legal conclusions to which no response of pleading is required. 28. Admitted in part. Denied in part. It is denied that any interest is owed by Defendant to Plaintiff prior to full and satisfactory performance by Plaintiff of the required Contract obligations. COUNT II it Quantum Meru 29. No further response is deemed necessary of paragraph 29 of Plaintiffs Complaint inasmuch as the same does not contain any factual allegations. 30. Denied. Defendant avers that to her detriment he she does not have an adequately functioning patio room that she has to suffer the cost of restoration as well. Such restoration is estimated to be greater than the monies claimed by Plaintiff. Defendant further avers that Plaintiffs performance resulted in numerous visible defective and non-conforming conditions, including but not limited to: a roof that slopes too low for the-existing residence and known degree of house pitch and relationship to the surrounding property grade and slope; inadequate size, number and placement of the roof down spout resulting in ineffective roof drainage that is in a sheet flow of water rather than water efficiently channeled to flow into an adequately designed and located gutter system. The resultant un-channeled water flows indiscriminately over windows and doors. Defendant avers that there are several more defective conditions whose cause and cure is only clearly ascertainable with the assistance of experts and at significant additional cost to Defendant. 31. Denied. Defendant reiterates the answer at Paragraph 30 and avers that Plaintiff as builder-vendor has conferred no benefit to Defendant home owner equal to the value Defendant has conferred on Plaintiff. Further, that Defendant relied on and was guided by the expertise, judgment and experience of the Plaintiff. as the sole determiner of all the specifications as to the size of the patio room to her detriment. And that Plaintiff has been more than adequately compensated in light of failures occasioned by the flawed design and assembly of the material and services provided to date. 32. Denied. Defendant avers that Plaintiff, as the builder-vendor solely responsible for and in control of the determination of the site selection, and overall design layout and dimensions of the patio room at the current failed to in its duty to perform with the degree of skill and care necessary to fulfill its contractual obligation. Defendant is forced to endure the additional inconvenience and incur the expense of corrective repairs as a direct result of Plaintiffs non-performance. Additionally, Defendant faces the further loss of income also as a direct and proximate result of Plaintiff's failure to perform in a professional manner with the appropriate workmanship skills and quality of result. The estimated cost of the repair and restoration to be paid by Defendant greater than the amount of money claimed by Plaintiff. 33. Denied. Defendant avers that Plaintiff is not entitled to quantum meruit as Plaintiffs non-performance results in no benefits but instead creates additional expense for Defendant to correct the defects. By way of further answer, Defendant has reason to believe that there is a real likelihood that an expert may recommend total removal as the most cost effective option rather than attempting to repair and replace: the various ill fitting components. in this case, the potential total cost of disassembly and removal may be at least equal to if not greater than the value of $17,588.00 paid by Defendant to Plaintiff to date. WHEREFORE, with respect to Plaintiffs Complaint for Breach of Contract Claim and Quantum Meruit, Defendant requests: that Plaintiffs Complaint he dismissed or that judgment be entered for Defendant's due to Plaintiffs performance of its contractual obligations in a substandard manner not in compliance with the implied warranties to render goods and services that are fit for purpose intended and habitable in accordance with the purpose of the Agreement by Plaintiff and is the direct cause of Defendants damages of $17,588.00; that Defendant be awarded costs and granted such other and further relief as the Court may deem just and proper. NEW MATTER AND COUN?'ERCLAIM 1. Paragraphs 1 through 33 are incorporated herein as if set forth in their entirety. 2. Mary Thompson (hereinafter referred to as "Counter-Plaintiff') is an adult individual who resides at 1127 South Harrisburg Street, Oberlin, PA 17113. 3. Custom Patio Rooms of Central Pennsylvania (hereinafter referred to as "Counter-Defendant") is a Corporation with a principal place of business at 4609 Gettysburg Road, Mechanicsburg, PA 17055. 4. At all times relevant hereto, Custom Patio is a corporation engaged in trade or commerce as defined in the Unfair Trade Practices and Consumer Protection Law 73 P. S. § 201.2(4)et seq. 5. Counter-Plaintiff entered into the transaction with Counter-Defendant primarily for personal, family or household purposes. 6. On or about September of 2002, Counter-Plaintiff, a retired senior citizen met with Counter-Defendant's sales employee, Mr. Alec Staley for the purpose of having Counter- Defendant construct a patio room for her use at her house. Counter-Plaintiff selected Counter- Defendant in reliance on Counter-Defendant's representations which were made in the course of his employment and for which he had apparent authority to make . 7. Counter-Plaintiff told Mr. Staley, that her primary condition was that she wanted no water leakage problems whatsoever. Mr. Staley assured her that he understood her concern and that Counter-Defendant's products do not have leakage problems and that there would be no water leakage problems. 8. On or about September 4, 2002, Mr. Staley, conducted a "free home design consultation" which was performed to examine Counter-Plaintiffs home and surrounding property and at that time, Mr. Staley observed the property and its natural conditions including the grade and elevation changes apparent. 9. On September 4, 2002, at the "free home design consultation", the Counter- Plaintiff and Counter-Defendant executed the Sales Agreement at the house. See Plaintiffs Exhibit "A". 10. The Counter-Plaintiff made it clear that she was reliant on the skill, judgment and expertise of Counter-Defendant as expressed by Mr. Staley and the marketing advertisements and as a result, Counter-Plaintiff executed the Sales Agreement. Counter-Defendant's provided verbal assurances which conformed to, supplemented and supported Counter-Defendant's marketing and Advertisement assurances to the effect that, "When attention to detail counts, you can count on Custom Patio Rooms," and "We will not be satisfied until you are satisfied that your room was manufactured and installed beyond your expectations." (See Exhibit 11. Counter-Plaintiff received a Letter from Counter -Defendant that congratulated her on her decision to purchase their product. Said letter assured her that her confidence in Custom Patio Rooms "will bring her many years of enjoyment as well as adding value to her home". A true and correct copy of such written communication is attached hereto as Exhibit. 12. Counter-Defendant did not disclose nor acknowledge to Counter-Defendant at any time before or after signing the Sales Agreement of the existence of any writings or documents which would contradict his assurances or any assurances provided Counter-Plaintiff by Counter-Defendant, to the detriment of Counter-Plaintiff. 13 . On or about the time the Sales Agreement was executed, in September 2003, Counter-Defendant submitted the order for the manufacturing of the major patio room components( walls, windows, roof, doors and attendant frxtmes necessary for their installation. on or shortly after the initial site selection was made in September 2002. 14. Counter-Defendant recommended an initial site on which the manufacturing order was based,. Said site was not allowed as it was in violation of a local township ordinance which prohibits any building within a specified distance from the homeowner's septic system.. 15. As a result, the Counter-Defendant selected another site and the Counter-Plaintiff, in reliance on Counter-Defendant's expertise, accepted to her detriment, as the new second site for the patio room. 16. Counter-Defendant made all the decisions concerning all the specifications for the dimension and all components for the patio room. Counter-Plaintiff was not in a position to provide any in put nor did she. Counter-Plaintiff totally relied on the expertise, skill and judgment of Counter-Defendant that their decision and design specifications would result in a room fit for the purpose intended and that the patio room would be habitable, and suitable for use. 17. Counter-Plaintiff was told and believes that the Counter-Defendant did not complete a new purchase order to incorporate the needs of the new site's dimensions as to height, depth, roofing, siding windows and doors, ground slope and grade and drainage requirements. 18. Counter-Defendant caused the Counter-Plaintiff to executed an Addendum to the Sales Agreement for the increased costs attendant to the relocated and dimensions and specifications for patio room. 19. Counter-Defendant failed to disclose to Counter-Plaintiff the potential consequences of proceeding to use the same walls, roof, windows, doors and attendant parts for such components that Counter-Defendant had previously ordered for the dimensions planned for the first site for the room. Counter-Defendant failed to re order and or resize any of the components necessary for the second site and its different dimensions. 20. Counter-Defendant exercised complete control over the location design, manufacture, assembly and installation and the standard of care required to assemble the final product. Counter-Defendant determined and insisted that their specifications as to all aspects of the room's dimensions and component be adhered to, especially as to the masonry foundation work provided by Mr. Chris Kenny. Neither Counter-Plaintiff nor Mr. Chris Kenny had any in-put as to the design or dimensions of the patio. 21. Counter-Plaintiff relied on the expertise of Counter-Defendant who recommended and helped secure the Counter- Plaintiffs acquiescence in the selection of Mr. Chris Kenny to provide the necessary masonry foundation for the second room site. This was in accord with the usual practices of Counter-Defendant and in also reflective of the usual course of dealing and regular usage of trade practices between Mr. Chris Kenny and Counter-Defendant . Mr. Kenny's work was in compliance with and solely under the direct supervision of Counter- defendant as per their usual relationship, and in accord with the Counter-Defendant's directions and control the project. For this reason Mr. Kenny was asked to construct the masonry for the second site for the patio room. 22. As was usual in the course of business between Mr. Kenny and Counter-Defendant, Mr. Kenny constructed the masonry walls and foundation following the dimensions given him by Counter-Defendant and for which Counter-Defendant insisted on total compliance. 23. Counter-Plaintiff executed the Addendum in order to cover the increased costs for the additional work necessary to accommodate the new site which required a new cement floor, knee walls, etc. 24. As per usual practice with Mr. Kenny and Counter-Defendant, all directions as to scope of work to be performed were provided to Mr. Kenny directly from Custom Patio and he received no direction nor control whatsoever from Counter-Plaintiff. 25. Counter-Defendant's production manager was told directly by Mr. Kenny that the specifications they gave Mr. Kenny and required him to follow for the floor foundation, knee wall, and footers et cetera would not be adequate for the application intended. 26. In June of 2003, after the assembly of the was, roofing, windows and doors and necessary interior work, the Counter-Plaintiff experienced problems such as water leakage to the walls, doors and windows, mold growth, doors and windows misfitting, the unfinished wooden beam being water stained from the roof water, flaking caulking from windows and doors, roof drainage pipes not efficiently functioning due to ineflective location. 27. Counter-Defendant `s failure to design and assemble the patio roomso as to be habitable is to the detriment of the Counter-Plaintiff and Counter-Plaintiff has continually refused to correct the design flaws in disregard to Counter-Plaintiffs repeated requests for repair or restoration. 28. Counter-Plaintiff has been advised that the estimated cost to repair the aforementioned damages may well be equal to or in excess of the sale price that Counter- Plaintiff has already paid, which is $17,588.00. COUNTI Consumer Protection Law 29. Paragraphs 1 through 28 are incorporated herein as by reference as if set forth in full. 30. At all times relevant hereto, Counter-Defendants were engaged in trade or commerce as defined in the Consumer Protection Law, 73 P.S. § 201-2(3) and 73 P.S. §. 201-2 (4) et seq. 31. That Counter-Plaintiff sustained damages in the lass of the quiet enjoyment of her patio room as a result of her reliance on Counter-Defendant's expertise and the nature of the damages is (See Count 24 above) are a direct result from the substandard home improvement work which was solely in the control and at the direction of the Counter-Defendant, and includes the Counter-Defendant's failure to disclose in good faith that the design specifications were not adjusted to accommodate the requirements of the new patio site but rather to benefit them in cost savings, those for the original site were incorporated into the second site selected. 32. Pursuant to Section 9.2 of the Consumer Protection Law, Counter- Plaintiff avers that Counter Defendants' acts enumerated above violate Section 3 of the Consumer Protection Law, 73 P.S. § 201-3, by violating the following subsections of Section 2(4) of the Consumer Protection Law, 73 P.S. § 201-2(4): (v) Representing in that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have; (vii) Representing 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; (ix) Advertising goods or services with intent not to sell them as advertised; (xiv) Failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made; (xvi) Making 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; (xxii) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding WHEREFORE, as result of Counter-Defendants' violations of the Consumer Protection Law, Counter-Plaintiff has suffered a loss of money or property, in that she has not received the goods and services of a quality and functionability for which she, contracted nor at the value she paid Counter-Plaintiff respectfully requests this Honorable Court grant judgment in favor of Counter-Plaintiff and against Counter-Defendant under the Consumer Protection Law as follows: a) a judgment in the amount of three times the loss suffered by Counter-Plaintiff as proven at trial of this matter, which is at least $52,764.00; b) an award of attorney's fees and all costs of Counter-Plaintiff; and, c) such other relief the court deems just and proper. Date: January 24, 2005 L! rj - rtLv?w X da C. Tali rro, Esquire PA Attorney I. D. #: 26504 220 Verbeke Street Harrisburg, PA 17102 717-238-7670 VERIFICATION The undersigned, having read the attached, verifies that the same is based upon information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language is that of counsel and not the undersigned. The undersigned verifies that he/she has read the attached and that it is true and correct to the best of his/her knowledge, information and belief. To the extent that the contents of the attached are that of counsel, the signer has relied upon counsel in making this verification. This Verification is made subject to the penalties of 18 Pa.C S. §4904 relating to unsworn falsification to authorities. ?xrr. Ma E. CERTIFICATE OF SERVICE And now, this 24' day of January, 2005, I do hereby certify that I have served a true and correct copy of the foregoing document on the person listed below at their respective address, via first-class mail, postage prepaid. John DeLorenzo, Esquire Goldberg Katzman, P.C. 320 Market Street PO Box 1268 Harrisburg, PA 17108-1268 Attorneys for Plaintiff G ' Linda C. Taliaterro, Es ire 220 Verbeke Street Harrisburg, PA, 17102 717-238-7670 Residential / Testimonials Page 1 of 1 When attention to detail counts, you can count on Custom Patio Rooms. We will not be satisfied until you are satisfied that your room was manufactured and installed beyond your expectations! Ot,r Pledge To Our Customers • Finest Quality Materials • No Hidden Charges. Ever • Courteous Estimates is Certified Installers No Subcontractoi_s • Workman's compensation and full iability insurance is Bank rate financing • Inspection upon completion See Our Product Information earl'/!/i`ai' ilr+..ustonieis Have IQ S"", ..e RAT P ? -.?, alAr .I=1?1;4?'i'I?'1 Close Window T AMERICA is REMODEUNG With Ir. HM http://www.custompatiorooms.com/residential.htmi 12/4/2004 http://www.custompatiorooms.com/residential_prod.html l? I a Page 1 of 1 A Custom Patio Room is designed for your horne, whether its a family room, play room, office or that special hot tub room you've been dreaming of! Choose the style that best suits your home: SYCB4tQl?i?®®?4fgl?spt? fcription fantastic views of the outside, and can be custom built to match the existing pitch of your home. Skylights and cedar center beam can be added to enhance the beauty of the cathedral style ceilings' Skylights can be added to any gable or studio style room, they are 2' x 4' and offer natural light in key areas. All Custom Patio Rooms can be designed and installed either as seasonal or insulated year round enclosures. Our insulated room use either 1/2" or 7/8" dual pane insulated glass. The roof and wall systems are also insulated, and we offer many special types of glass such as the Low-E and Solar Glass. http://www.custompatiorooms.com/residential-prod.html Close N 12/4/2004 C v n ?? Page 1 of 1 "Unlike other companies we are the manufacturer and sell Custom Patio Rooms directly to you, the homeowner' There's no middle man, which means you save money on the highest quality sunrooms in the industry. Our manufacturing plant is located just outside of Pittsburgh, PA. Every room is custom designed by our 'certified room designers', manufactured to your specifications and completely built by our 'certified installers' for your home. We custom build each room to your specifications - allowing you to enjoy the room of your dreams. We offer the largest variety of colors and styles of sunrooms in the industry. With more than 20 years of experience, we can guarantee you the finest quality patio room. Close Window http://www.custompatiorooms.com/manufacturing.html 12/4/2004 `( r?=4, kfl.,but (+-3 k - - - rA Custom Patio Rooms, we pride ourselves ir; quality vvorkmanship. Our own factory trained 'certified installers' construct every Custom Patio Room Project... no Subcontractors! This ensures you receive the most professional service and installation possible, and all of our rooms are backed' by the strongest warranty in the industry. ',usfom Patio rooms is a three-generation, family owned manufacturing and installation company. Richard Edwards, company resident, founded Custom Patio Rooms in 1932, ? x a? See what our customers have to say about us! Vie% the testimonials In feCei it years Richard Edwards 1(!o^.s appoin'ec to the board of directors of iha National ^ssociation c..` th:- Rernodeling industry, and in 20011 was alemeb Chairman of the Western P2nYlsy(\'aGlla BPtz°I- ^Urea U. http://www.custompatiorooms.com/aboutus.html Close Window 12 4W 116 ?Y,SS?fSF^vi.?Ri'C+LW ? ?S`???yy, t. . PATIO ROAMS ,.'J f 1{ ( f C'pa i ' S ? 6 f November 26, 2002 Dear Ms. THOMPSON Congratulation on your recent Patio Room purchase. Your confidence in Custom Patio Rooms will bring you many years of enjoyment as well as adding value to your home. Should you decide or your municipality require that a building pemrit is necessary, enclosed you will find a copy of your drawing and our insurance certificate for workmans compensation, both of which maybe necessary for obtaining a building permit. Some municipalities have certain requirements that require us to get inspections done as the job is being completed, these inspections will be given to you when you obtain your building permit. It's the responsibility of the customer to make sure that Custom Patio Rooms gets all the necessary paper work from the municipality to assure all the requirements are met. If this information is not forwarded to Custom Patio Rooms it may delay the completion of the patio room and could reflect additional cost the the customer. If additional information is required please contact our production department. Please keep in mind that some municipalities may take several weeks to issue a permit. Thanks again. Custom Patio Rooms of Central Pa. ?' a ? :? wk= `' r r.? ? - " j? t ? : ,z r . , 1 ' -tt 1 '? ( 1 .. Pri ? x__ - '< C Q:t : CUSTOM PATIO ROOMS : IN THE COURT OF COMMON PLEAS OF CENTRAL PA, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION - LAW Vs. NO. 04-5530 MARY THOMPSON, Defendant. NOTICE TO PLEAD To: Mary Thompson c/o Linda C. Taliaferro, Esq. 220 Verbeke Street Harrisburg, PA 17102 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PLAINTIFF'S PRELIMINARY OBJECTIONS TO THE DEFENDANT'S NEW MATTER AND COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, GOLDB ?ZMAN, P.C. ohn DeLorenzo, Esq. (I.D. #72190) 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108 (717) 234-4161 J Counsel for Plaintiff, Custom Patio DATE: ? h ? "? CUSTOM PATIO ROOMS : IN THE COURT OF COMMON PLEAS OF CENTRAL PA, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION - LAW VS. NO. 04-5530 MARY THOMPSON, Defendant. ORDER OF COURT AND NOW, this day of 2005, following review of the Preliminary Objections filed by the Plaintiff and the Defendant's response thereto, the Preliminary Objections are hereby SUSTAINED. It is hereby ORDERED that the Defendant's Counterclaim and New Matter be hereby dismissed with prejudice. By the Court, J. John DeLorenzo, Esquire Attorney LD. No. 72190 GOLDBERG KATZMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717)234.4161 Attorneys ttorneysfor Plaintiff CUSTOM PATIO ROOMS OF CENTRAL PA, INC., Plaintiff, vs. MARY THOMPSON, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-5530 JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM AND NOW this ,?S day of ?i--0 ?-4L_, 2005, Plaintiff, Custom Patio Rooms of Central PA, Inc. ("Custom Patio"), through its counsel John DeLorenzo, Esq., of Goldberg Katzman, P.C., hereby files its Preliminary Objections to the Defendant's New Matter and Counterclaim, as follows: 1. Nonjoinder of a Necessary Party 1. In paragraphs 20, 21, 22, 24 and 25 of the New Matter, Defendant makes mention of an independent contractor which she hired to perform masonry work on her property. 2. Defendant hired a contractor independent of Custom Patio to perform concrete work on her behalf. 3. As indicated in the Sales Agreement, Custom Patio does not perform concrete work nor does it take any responsibility for such. Such Sales Agreement, which is attached to the Plaintiff's Complaint, speaks for itself and is included herein by reference. 4. At the District Justice hearing, the Defendant admitted that she independently hired and paid such contractor as the contractor was not an employee or connected to the Plaintiff. 5. It was shown at the District Justice hearing that the independent contractor was responsible for any alleged damage to the Defendant's property not the Plaintiff. Hence, the award to the Plaintiff by the District Justice. 6. It is averred that the independent contractor was the proximate cause of any alleged damage to the Defendant's property. 7. As such, Defendant has a cause of action against the independent contractor not the Plaintiff. 8. It is therefore averred that the Defendant should have sued the independent contractor for recovery of any alleged damages that were the result of the independent contractor's actions. 9. Accordingly, an objection is hereby made under Pa. R.C.P. 1028(5) for the nonjoinder of a necessary party, the independent contractor that performed the masonry work on the Defendant's property. 10. The Agreement which is the subject of this action states that the Defendant will be responsible to pay all costs, including attorneys' fees, if Custom Patio prevails in this action. WHEREFORE, Plaintiff respectfully requests this Honorable Court to sustain its Objection for the nonjoinder of a necessary party and enter an Order dismissing with prejudice the Defendant's New Matter and Counterclaim, that the Court award its costs and fees, including reasonable attorneys fees and the Court apply such other remedies this Court deems just and proper. Il. Demur 11. Defendant's Count I of her Counterclaim and New Matter purports to set forth a cause of action under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S.C.A. §201-1 et seq. ("UTPCPL"). 12. The Defendant cites sections of the UTPCPL which create a cause of action. 13. The Defendant fails to indicate the actions of the Plaintiff which are alleged to have violated these specific sections of the UTPCPL. 14. Pennsylvania is a fact pleading state. 15. The Defendant has failed to allege facts which indicate a violation of UTPCPL. 16. The attached marketing materials does not rise to the level of a violation of the UTPCPL 17. The Defendant has failed to allege that any actions of the Plaintiff were fraudulent conduct which created a likelihood of confusion or misunderstanding. 18. The Defendant has failed to allege all the elements of common law fraud as required under Pennsylvania law. 19. Defendant failed to allege "egregious" or "outrageous" conduct by the Plaintiff. 20. Accordingly, the request for treble damages is inappropriate. 21. Accordingly, the Counterclaim and New Matter fails to state a cause of action against Custom Patio. 22. The Agreement which is the subject of this action states that the Defendant will be responsible to pay all costs, including attorneys' fees. if Custom Patio prevails in this action. WHEREFORE, Plaintiff respectfully requests this Honorable Court to sustain its Demurrer and enter an Order dismissing with prejudice the Defendant's New Matter and Counterclaim, that the Court award its costs and fees, including reasonable attorneys fees and the Court apply such other remedies this Court deems just and proper. III. Insufficient Specificity of Pleading 23. The Counterclaim and New Matter are pleaded with insufficient specificity because they fail to allege any facts to support the legal conclusions contained in Count I. WHEREFORE, Plaintiff respectfully requests this Honorable Court to sustain its Objection as to the lack of specificity and an Order dismissing with prejudice the Defendant's New Matter and Counterclaim, that the Court award its costs and fees, including reasonable attorneys fees and the Court apply such other remedies this Court deems just and proper. IV. Fails to Conform to Rule of Court 24. Count I of the Counterclaim and New Matter fails to aver with particularity the elements of fraud as required by the Pennsylvania Rule of Civil Procedure 1019(b). 25. Counterclaim and New Matter fails to state the material facts on which the Defendant's causes of action are based in a concise and summary form as required by the Pennsylvania Rules of Civil Procedure 1019(a). WHEREFORE, Plaintiff respectfully requests this Honorable Court to sustain its Objection and enter an Order dismissing with prejudice the Defendant's New Matter and Counterclaim, that the Court award its costs and fees, including reasonable attorneys fees and the Court apply such other remedies this Court deems just and proper. Respectfully submitted, G0 7E AN., P.C. , Dated: 0 Lorenzo, Esq. (I.D. #72190) t 0 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108 (717) 234-4161 Counsel for Plaintiff, Custom Patio 117209 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Linda C. Taliaferro, Esq. 220 Verbeke Street Harrisburg, PA 17102 Date: January )' , 2005 By: /. John orero Esquire 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Counsel for Plaintiff, Custom Patio [ ...? r... ? S ?? -41 ( C?'? rYl ?a , i? s.a °? i i?.? --? t.3 r^? ?/ u: Linda C. Taliaferro, Esquire Attorney I.D. 26504 220 Verbeke Street Harrisburg, PA 17102 Telephone: (717) 238 Attorney for Defendant /Counter Plaintiff CUSTOM PATIO ROOMS OF CENTRAL : IN THE COURT OF COMMON PLEAS PA, INC. : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF, CIVIL ACTION - LAW vs. NO. 04-5530 MARY E. THOMPSON : JURY TRIAL DEMANDED DEFENDANT DEFENDANT'S ANSWER TO PRELIMIN ARY OBJECTIONS TO NEW MATTER AND COUNTERCLAIM AND NOW this /S? day of ,/k7 G7uttcA 1,,-2005, Defendant, Mary Thompson, through her counsel, Linda C. Taliaferro, Esq., hereby files her Answer to the Plaintiff's Preliminary Objections to the Defendant's New Matter and Counterclaim, as follows: 1. Defendant Denies the Nonjoinder of a Necessary Party 1. Defendant denies Plaintiffs assertion in Paragraph 1, as follows. A. It is a conclusion of law which raises questions of fact outside the record developed to date. The determination that an identified individual or organization is or is not an "independent contractor" with attendant legal responsibilities or liabilities is a legal conclusion to be determined by this Honorable Court based on the totality of the findings of facts and is to be determined by the finder of facts in this case. B. Defendant has not asserted a claim against anyone or failed to join any parry whose interests and rights would prevent this Honorable Court from granting relief to Defendant under the Pennsylvania Unfair Trade Practices and Consumer Protection !Law, 73 P.S.C.A. §201-1 et seq.("UTPLCPL") 2. Defendant denies Plaintiffs assertion at Paragraph 2, as follows. A. This is a legal conclusion which is for this Honorable Court to decide based on the underlying facts of this case. B. The Complaint, Amended Answer and the Amended New Matter and Counterclaim all derive from the same event between Plaintiff and Defendant. It is a question of fact to be determined by the finder of facts as to whether Defendant "hirea' a contractor independent of"... (the Plainti (Emphasis added) C. Defendant believes that after she has had the opportunity to conduct of Pre-trial discovery, the factual details would emerge as to the true nature of the existing relationships and the ongoing course of conduct that in fact occurred between Plaintiff and Plaintiff's employees and agents and the Defendant in this case. 3. Defendant denies Plaintiff's contention at Paragraph 3, as follows: A. This determination requires the application of law to the :facts which are not yet of record. B. The plain language on the face of Sales's Agreement itself, (See Plaintiff's Exhibit A) where the "Exit Floor" column states "cement" as a category disputes Plaintiff's claim. See Amended New Matter and Counterclaim at paragraphs 21-26. C. Defendant's Amended New Matter and Counterclaim incorporated all averments in Defendant's Amended Answer. Defendant's averments clearly place at the heart of this case the legal issue of the significance and resultant legal liability of the Plaintiff due to its on-going relationships to various parties who provided services under the contract at the direction, under the control and totally to the furtherance of Plaintiff's interests under the Agreement at issue. This is especially so when the totality of Plaintiff's conduct is evaluated in accordance with appropriate statutory and agency law principles. (See Defendant's Amended Answer, in particular at Paragraphs 31 and 32 and in the Amended New Matter and Counterclaim, see in particular Paragraphs 14-16, and 20 and 21. D. The completion of Pre-trial discovery would enable Defendant to detail the supporting evidence and the facts of such relationships. 4. Defendant denies the relevance of any assertions of Plaintiff at Paragraphs 4-9, as follows: A. Defendant cites Pa. R.C.P.D.J. No. 1007.A. and1007. B. respectively, as directly applicable. It establishes the rule that the appeal ...shall be conducted de novo ... and ... may not be limited with respect to ...counterclaims, added or changed averments or otherwise because of the particulars of the action before the district justice." B. Defendant is not aware of any existing stenographic record or official transcript available from the hearing, therefore Plaintiffs assertions at paragraphs 4-9 must be disregarded and discarded. 5. Defendant is unable to admit or deny the Assertions of Plaintiff at Paragraph 10, as follows: A. The language cited by Plaintiff in "the Agreement" is not available to Defendant nor a part of Plaintiff's Exhibit A, attached to the Complaint and served on Defendant. Nno such language is found on the one page. Defendant must conclude that Plaintiff has not pleaded and/or place a true, and complete copy of the entire Agreement on which Plaintiff relies into the record. WHEREFORE, Defendant respectfully requests this Honorable Court to find in favor of the Defendant, grant her request to dismiss Plaintiff's Preliminary Objection for nonjoinder of a necessary party and any claims for costs and fees attendant thereto, and enter an Order dismissing same. And, in addition, Defendant requests that this Court apply such other remedies as this Court deems just and proper. II. Defendant Denies that Plaintiffs Demur is Proper or Should be Granted 6. Defendant denies the assertions of Plaintiff at Paragraphs 11-16 of Plaintiffs Preliminary Objections as follows: A. Defendant's Amended New Matter and Counterclaim incorporated all averments in Defendant's Amended Answer and pleads facts that may entitle Defendant to recover and be recompensed for the economic loss and damages sustained as a result of Plaintiff s conduct.. B. The applicable legal standard is that " a demurrer will not be sustained unless the court finds that on the face of the complaint the law states with certainty that no recovery is possible. ...Furthermore and that any doubts are to be resolved against sustaining the demurrer. " See Commonwealth v. Percudani, Commonwealth Court No. 732 M.D. 2002, 825 A.2d 743 (Pa. Commwlth. 2003) at 745. C. Defendant's averments in the Amended Answer and Amended Counterclaim identifying some of Plaintiff s deceptive practices known at this time, are the basis for her claims that Plaintiffs actions have violated the Pa Unfair Trade Practices and Consumer Protection statute in that Plaintiffs conduct created a likelihood of confusion and misunderstanding in Defendant, recognizable under that law.. These activities are in the nature of and/or are of the kinds of deceptive practices and conduct found in the past to have been violative of the Pa Unfair Trade Practices and Consumer Protection Law, 73 P.S.C. A. §201-1 et seq. (See Defendant's Answer, in particular at Paragraphs 31 and 32 and in the New Matter and Counterclaim, see in particular Answer at Paragraphs 3,4,5, 14-16, and 20 and 21. See New Matter at paragraphs 10-11, 20-25 and 31 in particular) D. Pre-trial discovery would enable the Defendant to detail the extent to which Plaintiff on going business practices with regard to Defendant was a statutorily prohibited pattern of practices and course of the conduct. 7. Defendant denies the assertions of Plaintiff at Paragraph 17-18 as follows: A. Defendant asserts that the Pa Supreme Court has recognized that " The Pa Unfair Trade Practices and Consumer Protection Law is to to liberally construed to effectuate the legislative goal of consumer protection." See Commonwealth, Percudani cited above at 11.6. B. 1996 amendments that revised Section 2(4)(xxi) [See Act of December 4, 1996, P.L. 9061 to include "deceptive conduct" affirms the Supreme Court's pronouncement that the law is to be liberally construed. To maintain pre-1996 restrictive pleading requirements would render the words "or deceptive conduct" redundant and superfluous which is contrary to the rules of statutory construction. See Commonwealth, Percudani, 825 A. 2d at 747 referencing Commonwealth ex. Rel. Pandolfo v. Pavia Co., 381 Pa. 488, 491, 113 A. 2d 224, 226 (1955) to that effect. 8. Defendant denies the assertions of Plaintiff at Paragraph 19 -21 as follows: A. The "egregious-ness" or "outrageous-ness" ofPlaintiif 's conduct is a conclusion of law to be based on the facts of the record. Again, Defendant believes that further Pre- trial discovery would elucidate the facts to make a proper determination. Defendant believes that the evidence so un- covered will allow the trier of facts and this Court to so determine. B. Defendant believes that the existing averments of Defendant make these allegations more likely than not and that Defendant is also entitled to any reasonable inferences to be derived therefrom. Further, that at trial it would be confirmed, especially since Defendant would have had a reasonable opportunity for investigation and inquiry via Pre-trial discovery. C. The treble damages penalty is statutorily allowed based on the facts of the case as developed on the record and as determined by the finder of fact. The statutory provision for appropriateness of a treble damages award is obviously based on legislative intent to protect the consumers of PA from such prohibited conduct where and when such behavior is established on the record by the facts of the case. 9. Defendant is in no position of affirm or deny the assertions of Plaintiff at Paragraph 22, for the very same reasons as given at Paragraph 5.A. (above), in that said clause is not a part of Plaintiffs Exhibit A attached to the Complaint and served on Defendant and therefore is information solely in the possession of the Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court to grant Defendant's request to dismiss Plaintiffs Demurrer and deny any request for attorney's fees and costs and allow Defendant's New Matter and Counterclaim to proceed and requirer Plaintiff to file an Answer thereto, and Order any other such remedies and relief as this Court deems just and proper to apply. III. Defendant denies the Insufficient Specificity of Pleading assertion as follows: A. Defendant has pleaded facts sufficiently specific on the record at this point in time in her Amended Answer and Amended New Matter and Counterclaim. Moreover, she is entitled to have said facts include all reasonable inferences to be drawn therefrom. Plaintiff is on notice as the rights of Defendant violated, the nature of the violations, and the economic injury and the estimated damages and/or other relief being sought or which might reasonably be sought. B. Defendant believes that after a reasonable opportunity to conduct pre-trial discovery, any minor imperfections and deficiencies in the pleadings can be corrected in a timely manner with timely notice to the Plaintiff. C. The Pa. Rules of Civil Procedure and judicial precedents allow for further amendments to the Pleadings as are necessary and in the interest of furthering justice. IV. Defendant denies the assertions of Plaintiff at Paragraph 24-25 as being applicable for the same reason previously stated above at Paragraph 7b. A. Proof of fraud is not a requirement of the amended Pa Unfair Trade Practices and Consumer Protection Law, (UTPCPL § 201-1 et seq) especially as to that portion of Section 2(4)(xxi) [See Act of December 4, 1996, P.L. 906]. Defendant believes that her averments as to Plaintiffs failure to perform and failure to disclose various significant acts and failures to act on its part are the kinds of deceptive practices which violate the UTPCPL. B. The Defendant's Amended Counterclaim and New Matter state the material facts as known and believed by Defendant at this point in time. Defendant believes that with further reasonable investigation and Pre-trial discovery, Defendant would be able to support the allegations of deceptive practices. WHEREFORE, Plaintiff respectfully requests this Honorable Court to dismiss the Plaintiff's Preliminary Objections and requests for costs and fees of any kind, and enter an Order to that effect and furthermore, that the Court consider and apply such other remedies as this Honorable Court deems just and proper. Respectfully submitted, 7 Dated: - ?5 Ja 5 l Z ?,Lc' -c-LZ L'nd C. Taliaferr , Esquire Attorney I.D. # 26504 220 Verbeke Street Harrisburg, PA 17108 (717) 238-7670 Counsel for Defendant CERTIFICATE OF SERVICE I hereby certify that I served a copy of the forgoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: John DeLorenzo, Esquire 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Date: ) - /S -o By: ti C/' C6 " coda C. Ta iaferro, Esquire 220 Verbeke Street Harrisburg, PA 17102 Telephone: (717) 234-4161 Counsel for Defendant ,? ?} C,r ?? .y ? ?q_J? ? ? LIAR 2 12C1?5 Linda C. Taliaferro, Esquire Attorney I.D. No. 26504 220 Verbeks Street Harrisburg, PA 17102 Telephone: 717-238-7670 Attorney for Defendant CUSTOM PATIO ROOMS OF CENTRAL PA, INC., VS. MARY THOMPSON, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 04-5530 JURY TRIAL DEMANDED PETITION TO FILE A BRIEF NUNC PRO TUNC TO THE HONORABLE JUDGES OF SAID COURT: Now comes Petitioner who submits this Petition to file a Brief Nunc Pro Tunc, and respectfully represents: 1. Petitioner is Linda C. Taliaferro, Attorney for the Defendant, Mary Thompson, in the above matter. 2. Argument on the Plaintiffs Preliminary Objections was set for March 23, 2005. 3. The Petitioner-Defendant's Brief in Opposition to the Preliminary Objection was due Friday, March 18, 2005, five (5) days before the date set for argument. 4. On Friday, March 18,2005, due to heavy traffic on route from Harrisburg, Petitioner arrived at the Court House approximately ten to 15 minutes late, found the doors locked, and was unable to file the Brief with the Prothonotary's Office. 5. On Friday, March 18, 2005, Petitioner mailed from Harrisburg ( U.S. mail, first Plaintiff Defendant class), an original and a copy of the Brief to the Office of the Prothonotary and to opposing counsel, respectively. 6.. Petitioner submits that in her opinion, as this mailing date remained the same date that she would have mailed the Brief to opposing counsel, no party has been prejudiced by any delay in the filing. Wherefore, Petitioner respectfully requests that her Petition to File a Brief Nunc Pro Tunc be granted. Respectfully submitted, Linda C. Taliaforro, Esquire 220 Verbeke Street Harrisburg, PA 17102 Te1:717-238-7670 Attorney I.D. No. 26504 Counsel for Defendant Date: March 21, 2005 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the forgoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: John DeLorenzo, Esquire 320 Market Street, Strawberry Square' P.O. Box 1268 Harrisburg, PA 17108-1268 Date: Q? By: ki"Ae?6- Linda C. Tal Ferro, Esquire 220 Verbeke Street Harrisburg, PA 17102 Telephone: (717) 234-4161 Counsel for Defendant r-? C) .. n ? 1 ?. ??;1. ??. ??_i'ti ?n John DeLorenzo, Esquire Attorney I.D. No. 72190 GOLDBERG KATZMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 ,41forneysfor Plaintiff CUSTOM PATIO ROOMS OF CENTRAL PA, INC., Plaintiff, VS. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-5530 MARY THOMPSON, Defendant. ANSWER TO DEFENDANT'S AMENDED NEW MATTER AND COUNTERCLAIM ? L, AND NOW this Y day of August, 2005, Plaintiff, Custom Patio Rooms of Central PA, Inc. ("Custom Patio"), through its counsel John DeLorenzo, Esq., of Goldberg Katzman, P.C., hereby files its Answer to the Defendant's Amended New Matter and Counterclaim, as follows: 1. Paragraphs 1 through 33 of Plaintiff's Complaint are incorporated herein as if set forth in their entirety. 2. Admitted. 3. Admitted. 4. This paragraph contains conclusions of law to which no responsive pleading is required. To the extent required, the averments are denied. By way of further answer, strict proof thereof is demanded. 5. This paragraph contains conclusions of law to which no responsive pleading is required. To the extent required, the averments are denied. By way of further answer, the Agreement of Sale attached to the Plaintiff's Complaint speaks for itself, Strict proof thereof is demanded. 6. This paragraph contains conclusions of law to which no responsive pleading is required. To the extent required, the averments are denied. By way of further answer, on or about September 4, 2002, the Defendant executed the Sales Agreement. Such document speaks for itself. 7. Denied. No such conversation took place. Strict proof thereof is demanded. 8. Denied. The Sales Agreement controls this action and such speaks for itself. The Plaintiff has not contractually engaged itself to perform any additional services other than that included in such contract. Strict proof thereof is demanded. 9. Denied as written. As the Defendant indicated in her deposition conducted by the parties prior to the filing of her Amended New Matter and Counterclaim, no "free home design consultation" was conducted prior to signing the Agreement. Accordingly, this averment is directly contrary to the statements of the Defendant and further indicates the bad faith that the Defendant has engaged in during the pendency of this matter. Moreover, this pleading represents the continuing saga of four sets of attorneys representing the Defendant each filing various improper pleadings that are meant as nothing more as harassment against the Plaintiff and add to the delay of this matter. Accordingly, sanctions should be imposed against Defendant for her continuing improper behavior. It is admitted though that a Sales Agreement was signed by her on or about September 4, 2002. 10. Denied. By way of further answer, on or about September 4, 2002, the Defendant executed the Sales Agreement. Such document speaks for itself. 11. This paragraph contains conclusions of law to which no responsive pleading is required. To the extent required, the averments are denied. By way of further answer, such documents speak for themselves and are totally irrelevant. 12. This paragraph contains conclusions of law to which no responsive pleading is required. To the extent required, the averments are denied. By way of further answer, the Sales Agreement controls in this matter and such speaks for itself. 13. Denied. Plaintiff controlled the placement of the patio room as it was her home and her desire to purchase said room and place it on her home in the particular location she chose. 14. Denied as written. Strict proof thereof is demanded. 15. Denied as written. Defendant suggests that Plaintiff filed the building application which is untrue and directly contrary to the deposition testimony of the Defendant which further shows the bad faith pursuit of this New Matter and Counterclaim. The denial of the permit speaks for itself and any attempt to characterize such by the Defendant is denied. Strict proof thereof is demanded. 16. Denied. Defendant selected all sites for the contracted room. Strict proof thereof is demanded. 17. Denied. See answer to number 16. 18. Denied. The Defendant contracted for and received the patio room called for in the contract which she signed. However, the Defendant has refused to pay for the same. 19. Denied. The Defendant received the patio room called for in the Sales Agreement. Strict proof thereof is demanded. 20. Denied. The Defendant received the patio room called for in the Sales Agreement. Strict proof thereof is demanded. Additionally, such averment directly contradicts Defendant's deposition testimony. 21. Denied. By way of further answer, see answer to averment 20. 22. Denied as written. The Defendant did execute an addendum to the contract but such referenced services and goods which Defendant desired and such speaks for itself. Strict proof thereof is demanded. 23. Denied. By way of further answer, Plaintiff supplied Defendant with the patio room called for in the Sales Agreement. Strict proof thereof is demanded. 24. Denied. By way of further answer, see answer to 23 above. 25. Denied. Defendant controlled all aspects of the placement of the patio room on her own home. Additionally, the masonry contractor which the Plaintiff has no control over as he was an independent contractor hired by the Defendant, performed his services separate from the Plaintiff. 26. Denied. Defendant independently hired the masonry contractor and the Plaintiff had no control over his hiring or his performance of the duties he contractually engaged in with the Defendant. 27. Denied. Mr. Kenny performed his services independently from the Plaintiff. Strict proof thereof is demanded. 28. Denied. See answer to 27 above. 29. Denied. See answer to 27 above. 30. Denied. By way of further answer, Custom Patio does not generally perform masonry services and therefore, homeowners must independently contract for these services with masonry contractor. Such is clearly spelled out if the Agreement, which speaks for itself. Mr. Kenny is one of the many contractors that homeowners contract with. 31. Denied. See answer to 27 above. 32. Denied. Strict proof thereof is demanded. 33. After reasonable investigation, the Plaintiff is without sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph and, therefore, they are denied. By way of further answer, such averment is directly contrary to the deposition testimony of the Defendant. Accordingly, strict proof thereof is demanded. 34. This paragraph contains conclusions of law to which no responsive pleading is required. To the extent required, the averments are denied, By way of further answer, the Plaintiff has fully performed is contractual duties under the contract. It is the Defendant that has breached the same by her failure to pay for the goods and services that she received. Strict proof thereof is demanded. 35. After reasonable investigation, the Plaintiff is without sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph and, therefore, they are denied. By way of further answer, such vague references to damages can not be commented upon by the Plaintiff other than such is directly contradictory to the Defendant's deposition testimony. Strict proof thereof is demanded. CountI 36. Paragraphs 1 through 35 are incorporated as if fully set forth herein. 37. This paragraph contains conclusions of law to which no responsive pleading is required. To the extent required, the averments are denied. Strict proof thereof is demanded. 38. See answer to paragraph 37. Moreover, the very terms of the Sales Agreement waive all warranties in this situation. Such Agreements speaks for itself and is referenced as if set forth fully herein. Strict proof thereof is demanded. 39. See answer to 38. 40. See answer to 38. 41. See answer to 38. 42. See answer to 38. 43. After reasonable investigation, the Plaintiff is without sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph and, therefore, they are denied. By way of further answer, such is directly contradictory to the Defendant's deposition testimony. Strict proof thereof is demanded. 44. See answer to 38. 45. See answer to 38. Moreover, Defendant has failed to pay Plaintiff for the services performed and therefore, breached the Sales Agreement thereby relieving the Plaintiff of any further duties thereunder. WHEREFORE, Plaintiff requests that the Defendant's Amended New Matter and Counterclaim be dismissed with prejudice, that the Court award its costs and fees, including reasonable attorneys fees and the Court apply such other remedies this Court deems just and proper. Respectfully submitted, P.C. Dated: S (z 0) Jghn99eLorenzo, Esq. (I.D. #72190) 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108 (717) 234-4161 Counsel for Plaintiff, Custom Patio 116782 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Michael A. Gruin, Esq. Anderson, Gulotta & Hicks, P.C. 121 State Street Harrisburg, PA 17101 Date: August 8, 2005 By: i AUY John renzo, Esquire / 320 arket Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Counsel for Plaintiff, Custom Patio rl - 1 i G r,3 MAR 2 1 2005 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CUSTOM PATIO ROOMS CIVIL ACTION - LAW OF CENTRAL PA, INC., Plaintiff NO. 04-5530 Vs. MARY THOMPSON JURY TRIAL DEMANDED Defendant ORDER Granting Petition To File Brief Nunc Pro Tunc AND NOW, /yrt„r,A P! uts+- (date), upon consideration of the petition of the Defendant, Mary Thompson, by her Attorney. Linda C. Taliaferro, it is hereby ORDERED that the filing of the Brief Nunc Pro Tunc is granted and Petitioner Is permitted to file on March 21, 2005. By the Court: miF1 2 1 2gti5Jtd\ Linda C. Taliaferro, Esquire Attorney I.D. No. 26504 220 Verbeke Street Harrisburg, PA 17102 Telephone: 717-238-7670 Attorney for Defendant CUSTOM PATIO ROOMS : IN THE COURT OF COMMON PLEAS OF CENTRAL PA, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff VS. MARY THOMPSON, Defendant CIVIL ACTION - LAW NO. 04-5530 : JURY TRIAL DEMANDED PETITION TO FILE A BRIEF NUNC PRO TUNC TO THE HONORABLE JUDGES OF SAID COURT: Now comes Petitioner who submits this Petition to file a Brief Nunc Pro Tunc, and respectfully represents: 1. Petitioner is Linda C. Taliaferro, Attorney for the Defendant, Mary Thompson, in the above matter. 2. Argument on the Plaintiffs Preliminary Objections was set for March 23, 2005. 3. The Petitioner-Defendant's Brief in Opposition to the Preliminary Objection was due Friday, March 18, 2005, five (5) days before the date set for argument. 4. On Friday, March 18,2005, due to heavy traffic on route from Harrisburg, Petitioner arrived at the Court House approximately ten to 15 minutes late, found the doors locked, and was unable to file the Brief with the Prothonotary's Office. 5. On Friday, March 18, 2005, Petitioner mailed from Harrisburg ( U.S. mail, first class), an original and a copy of the Brief to the Office of the Prothonotary and to opposing L counsel, respectively. 6.. Petitioner submits that in her opinion, as this mailing date remained the same date that she would have mailed the Brief to opposing counsel, no party has been prejudiced by any delay in the filing. Wherefore, Petitioner respectfully requests that her Petition to File a Brief Nunc Pro Tunc be granted. Respectfully submitted, Linda C. Taliaforro, Esquire 220 Verbeke Street Harrisburg, PA 17102 Tel:717-238-7670 Attorney I. D. No. 26504 Counsel for Defendant Date: March 21, 2005 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the forgoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: John DeLorenzo, Esquire 320 Market Street, Strawberry Square' P.O. Box 1268 Harrisburg, PA 17108-1268 Date: ? -d "6 5 By: Linda C. Tal erro, Esquire 220 Verbeke Street Harrisburg, PA 17102 Telephone: (717) 234-4161 Counsel for Defendant f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NORTHWEST SAVINGS BANK, successor-in-interest to FIRST UNITED MORTGAGE SERVICES, INC., Plaintiff V. NO. 2004 - 5660 Civil Division MOTION FOR SUMMARY JUDGMENT FILED ON BEHALF OF: Northwest Savings Bank WAYNE L. ULSH, COUNSEL OF RECORD FOR THIS PARTY: Defendant Kurt L. Sundberg, Esq. Supreme Court I.D. #56844 Andrew M. Schmidt, Esq. Supreme Court ID # 89448 Marsh Spaeder Baur Spaeder & Schaaf, LLP Suite 300, 300 State Street Erie, Pennsylvania 16507 (814) 456-5301 LOCAL COUNSEL OF RECORD Ronald L. Finck, Esq. Supreme Court I.D. 89985 Mette Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NORTHWEST SAVINGS BANK, successor-in-interest to FIRST UNITED MORTGAGE SERVICES, INC., Plaintiff V. WAYNE L. ULSH, Defendant NO. 2004 - 5660 MOTION FOR SUMMARY JUDGMENT AND NOW, comes the plaintiff, Northwest Savings Bank, by its attorneys, Marsh Spaeder Baur Spaeder & Schaaf, LLe, and Mette Evans & Woodside, and files the following Motion for Summary Judgment and avers as follows: I. There is no genuine issue as to any material fact in the above-referenced matter. 2. Plaintiff, Northwest Savings Bank, is entitled to summary judgment as a matter of law. 1 This motion is not filed for the purposes of delay. 4. This case is neither presently on any trial list nor has it ever been listed for trial. 5. On May 22, 1998, defendant, Wayne L. Ulsh (hereinafter "defendant"), executed a promissory note in favor of First United Mortgage Services, Inc. in the principal sum of $43,750.00, said sum being payable in equal, consecutive monthly installments of principal, plus interest of $317.22, with interest on the unpaid principal balance from the date of said note, until paid, at the rate of 7.875°/0 per annum. A true and correct copy of said note is attached hereto, is incorporated herein by reference and has been marked Exhibit "A." 6. On the same date, defendant made, executed and delivered a mortgage on parcels of land and buildings situate in the village of Plainfield in West Pennsboro Township, County of Cumberland, and Commonwealth of Pennsylvania, commonly known as 36 East Main Street, Plainfield, PA (hereinafter the "Properties") as a collateral for the Note, which mortgage was recorded in Cumberland County Record Book 1458 at Page 945. A true and correct copy of the said mortgage is attached hereto, is incorporated herein by reference and has been marked Exhibit "B." 7. Said mortgage was assigned by First United Mortgage Services, Inc. to Northwest Savings Bank (hereinafter "Northwest") by Assignment of Mortgage dated May 22, 1998, and recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Record Book 578, Page 664. Said assignment is attached hereto, is incorporated herein by reference and has been marked Exhibit "C." 8. Defendant defaulted on the mortgage and note by failing to make payments due for the months of October 2003 through December, 2003, and January through December, inclusive, of 2004. 9. Northwest made repeated demands on the defendant to pay said monthly payments, but without success. 10. Because defendant failed to take the necessary steps to cure the delinquency, Northwest instituted foreclosure proceedings by filing a Complaint in Mortgage Foreclosure in the above-captioned case. 11. In response to the said Complaint, defendant filed a one-page, one paragraph Answer and stated therein the following: 2 1. PLAINTIFF ASKS FOR JUDGMENT IN THE AMOUNT OF $51,535.02, which is itemized in paragraph 7 of the complaint. DEFENDANT takes exception to the request for interest and late charges through 211105, which as of the date hereof are not yet earned, DEFENDANT asks for an analysis of the negative escrow and the collection fee. Respectfully submitted, {sl Wayne L. Ulsh 12. On January 13, 2005, plaintiff mailed to defendant an itemization of the negative escrow and collection fee. A true and correct copy of said letter is attached hereto, is incorporated herein by reference and has been marked as Exhibit "D." 11 In mortgage foreclosure actions, general denials by the defendant must be considered an admission of those facts. See. Pennsylvania Rule of Civil Procedure 1029(b); First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 692 (Pa. Super. 1995); and New York Guardian Mortgage CM. Y. Dietzel, 362 Pa. Super. 426, 429, 524 A.2d 951, 952 (1987). 14. In addition, summary judgment is properly granted in mortgage foreclosure actions where the defendant admits that he is delinquent in mortgage payments. See, First Wisconsin Trust Co. v. Strausser, 653 A.2d 694; New York Guardian Mortgage Corp. v. Dietzel, 362 Pa. Super. at 429, 524 A.2d at 952. 15. Defendant has not disputed the amounts due and owing. 16. To date, defendant has not brought the account current. 17. Attached hereto, incorporated herein by reference and marked Exhibit "E" is the Affidavit of Braden R. Jones, Vice President of Northwest Savings Bank, setting forth a reinstatement statement and payoff statement for defendant's note and mortgage. 18. As such, no issue of material fact exists, and Northwest's Motion for Summary 3 Judgment is properly before this Honorable Court and should be granted. WHEREFORE, Northwest Savings Bank respectfully requests summary judgment in its favor and against defendant in the amount of $51,535.02, plus interest thereon at the rate of 7.875% per annum from February 1, 2005 to the date of judgment, plus costs of suit, Sheriffs Sale and foreclosure and sale of the mortgaged Properties, commonly known as 36 East Main Street, Plainfield, PA. Respectfully submitted, MARSH SPAEDER BAUR SPAEDER & SCHAAF, LLP By Kurt L. Sundberg Supreme Court I.0 56844 By -?? Andrew M. Schmidt Supreme Court I.D. 89448 Attorneys for Northwest Savings Bank Suite 300, 300 State Street Erie, PA 16507 (814) 456-5301 METTE EVANS & WOODSIDE BY (RmakJ--- id C7,;?Z,vK Q_ Ronald L. Finck, Esq. Supreme Court I.D. 89985 Local Counsel for Northwest Savings Bank 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717 232-5000 4 i.', . i,...1. F! NOTE This is to c ly this is a true LOLN NO. 69810270030 and correct copy of the MAY 22 19 98 MECHANICSBURG original document. PA [city) Istatel 36 EAST MAIN STREfa G w PLAINFIELD, PA 17081 [Property Address) 1. BORROWER'S PROMISE TO PAY In return for a loan that I have received, I promise to pay U.S. $ 43,750.00 (this amount is called "principal"), plus interest, to the order of the Lender. The Lender is FIRST UNITED MORTGAGE SERVICES, INC., 4931 CARLISLE PIKE, MECHANICSBURG, PA 17055 I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the "Note Holder". 2. INTEREST Interest will be charged on unpaid principal until the full amount of principal has been paid. I will pay interest at a yearly rate of 7.875 %. The interest rate required by this Section 2 is the rate I will pay both before and after any default described in Section 6(B) of this Note. 3. PAYMENTS (A) Time and Place of Payments I will pay principal and interest by making payments every month. I will matte my monthly payments on the 1ST day of each month beginning on JULY 1 19 98 . I will make these payments every month until I have paid all of the principal and interest and any other charges described below that I may owe under this Note. My monthly payments will be applied to interest before principal. If, on JUNE 1 , 2028 , I still owe amounts under this Note, I will pay those amounts in full on that date, which is called the "maturity date". I will make my monthly payments at 4931 CARLISLE PIKE, MECHANICSBURG, PA 17055 or at a different place if required by the Note Holder. (B) Amount of Monthly Payments My monthly payment will be in the amount of U.S. $ 317.22 4. BORROWER'S RIGHT TO PREPAY I have the right to make payments of principal at any time before they are due. A payment of principal only is known as a "prepayment. When I make a prepayment, I will tell the Note Holder in writing that I am doing so. I may make a full prepayment or partial prepayments without paying any prepayment charge. The Note Holder will use all of my prepayments to reduce the amount of principal that I owe under this Note. If I make a partial prepayment, there will be no changes in the due date or in the amount of my monthly payment unless the Note Holder agrees in writing to those changes. 5. LOAN CHARGES If a law, w t Fh applies to this loan and which sets maximum loan charges, is finally interpreted so that the interest or other loan charges collect& or to be collected in connection with this loan exceed the permitted limits, then: (i) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (ii) any sums already collected from me which exceeded permitted limits will be refunded to me. The Note Holder may choose to make this refund by reducing the principal I owe under this Note or by making a direct payment to me. If a refund reduces principal, the reduction will be treated as a partial prepayment. 6. BORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Charge for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the end of 15 calendar days after the date it is due, I will pay a late charge to the Note Holder. The amount of the charge will be 5.000 % of my overdue payment of principal and interest. I will pay this late charge promptly but only once on each late payment. (B) Default If I do not pay the full amount of each monthly payment on the date it is due, I will be in default. (C) Notice of Default If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of principal which has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is MULTISTATE FIXED RATE NOTE - Single Family - FNMAIFHLMC UNIFORM INSTRUMENT Page 1 of 2 Initials: (D) No Waiver By Note Holder Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full .as described above, the Not;, Holder will still have the right to do so if I am in default at a later time. (E) Payment of Note Holder's Costs and Expenses If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorneys' fees. 7. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to me under this Note will he given by delivering it or by mailing it by first class mail to me at the Property Address above or at a different address if I give the Note Holder a notice of my different address. Any notice that must be given to the Note Holder under this Note will be given by mailing it by first class mail to the Note Holder at the address stated in Section 3(A) above or at a different address if I am given a notice of that different address. 8. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note against each person individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under this Note. 9. WAIVERS I and any other person who has obligations under this Note waive the rights of presentment and notice of dishonor. "Presentment" means the right to require the Note Holder to demand payment of amounts due. "Notice of dishonor" means the right to require the Note Holder to give notice to other persons that amounts due have not been paid. 10. UNIFORM SECURED NOTE This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust or Security Deed (the "Security Instrument"), dated the same date as this Note, protects the Note Holder from possible losses which might result if I do not keep the promises which I make in this Note. That Security Instrument describes how and under what conditions I may be required to make immediate payment in full of all amounts I owe under this Note. Some of those conditions are described as follows: Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Property or any interest in it is sold or transferred (or if a beneficial interest in Borrower is sold or transferred and Borrower is not a natural person) without Lender's prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this Security Instrument. N Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a perio4of not less than 30 days from the date the notice is delivered or mailed within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. WITNESS THE HAND(S) AND SEAL(S) OF THE UNDERSIGNED. (Seal) (Seal) WAYNE . IIL SH -Borrower -Bwower Social Security Number 18 6 - 3 0 - 7 3 6 9 Social Security Number (Seal) (Seal) -Borrower -Borrower Social Security Number Social Security Number P 10 ORDER OF NORTHWEST SAVINGS BANK (Sign Original Only] BY, &7UN%? VICES, INC. NORMA R ID MULTISTATE FIXED RATE NOTE - Single Family - FNMAIFHLMC UNIFORM INSTRUMENT Form 320012/83 Page 2 of 2 Initials: 9/e1 r?,? ? ^ ?J ?\ lZl '98 JU)a 5 Pfd 1 29 [Space Above This Line For Recording Data] LOAN NO. 69810270030 MORTGAGE THIS MORTGAGE ("Security Instrument") is given on MAY 22 1998 The mortgagor is WAYNE L. ULSH This Security Instrument is given to FIRST UNITED MORTGAGE SERVICES, INC. , ?W ("Borrower"). which is organized and existing under the laws of COMMONWEALTH OF PENNSYLVANIA and whose address is 4931 CARLISLE PIKE, MECHANICSBURG, PA 17055 ("Lender"). Borrower owes Lender the principal sum of FORTY-THREE THOUSAND SEVEN HUNDRED FIFTY AND 00/100 Dollars (U.S. $ 43,750.00 ). This debt is evidenced by Borrower's note dated the same date as this Security Instrument ("Note"), which provides for monthly payments, with the full debt, if not paid earlier, due and payable on JUNE 1, 2028 . This Security Instrument secures to Lender: (a) the repayment of the debt evidenced by the Note, with interest, and all renewals, extensions and modifications of the Note; (b) the payment of all other sums, with interest, advanced under paragraph 7 to protect the security of this Security Instrument; and (c) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to Lender the following described property located in CUMBERLAND County, Pennsylvania: SEE ATTACHED LEGAL DESCRIPTION D k which has the address of 36 EAST MAIN STREET PLAINFIELD Istreeu Icityl Pennsylvania 17081 Property Address"); [zip code) TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the "Property". BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. PENNSYLVANIA - Single Family - Fannie Mae/Fraddle Mac UNIFORM INSTRUMENT Form 3039 9/90 Page 1 of 6 Laser Forme Inc. [8001 44&3555 LIFT /3039 9/93 Initials: 90oNWBPAGE ,945 THIS SECURITY INSTRUMENT co-,ines uniform covenants for national use and nor niformcovenants with limited variations by jurisdiction to constitute a uniform s. Aty instrument covering real property. UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: 1. Payment of Principal and Interest; Prepayment and Late Charges. Borrower shall promptly pay when due the principal of and interest on the debt evidenced by the Note and any prepayment and late charges due under the Note. 2. Funds for Taxes and Insurance. Subject to applicable law or to a written waiver by Lender, Borrower shall pay to Lender on the day monthly payments are due under the Note, until the Note is paid in full, a sum ("Funds") for: (a) yearly taxes and assessments which may attain priority over this Security Instrument as a lien on the Property; (b) yearly leasehold payments or ground rents on the Property, if any; (c) yearly hazard or property insurance premiums; (d) yearly flood insurance premiums, if any; (e) yearly mortgage insurance premiums, if any; and (f) any sums payable by Borrower to Lender, in accordance with the provisions of paragraph 8, in lieu of the payment of mortgage insurance premiums. These items are called "Escrow Items". Lender may, at any time, collect and hold Funds in an amount not to exceed the maximum amount a lender for a federally related mortgage loan may require for Borrower's escrow account under the federal Real Estate Settlement Procedures Act of 1974 as amended from time to time, 12 U.S.C. § 2601 et seq. ("RESPA"), unless another law that applies to the Funds sets a lesser amount. If so, Lender may, at any time, collect and hold Funds in an amount not to exceed the lesser amount. Lender may estimate the amount of Funds due on the basis of current data and reasonable estimates of expenditures of future Escrow Items or otherwise in accordance with applicable law. The Funds shall he held in an institution whose deposits are insured by a federal agency, instrumentality, or entity (including Lender, if Lender is such an institution) or in any Federal Home Loan Bank. Lender shall apply the Funds to pay the Escrow Items. Lender may not charge Borrower for holding and applying the Funds, annually analyzing the escrow account, or verifying the Escrow Items, unless Lender pays Borrower interest on the Funds and applicable law permits Lender to make such a charge. However, Lender may require Borrower to pay a one-time charge for an independent real estate tax reporting service used by Lender in connection with this loan, unless applicable law provides otherwise. Unless an agreement is made or applicable law requires interest to be paid, Lender shall not be required to pay Borrower any interest or earnings on the Funds. Borrower and Lender may agree in writing, however, that interest shall be paid on the Funds. Lender shall give to Borrower, without charge, an annual accounting of the Funds, showing credits and debits to the Funds and the purpose for which each debit to the Funds was made. The Funds are pledged as additional security for all sums secured by this Security Instrument. If the Funds held by Lender exceed the amounts permitted to be held by applicable law, Lender shall account to Borrower for the excess Funds in accordance with the requirements of applicable law. If the amount of the Funds held by Lender at any time is not sufficient to pay the Escrow Items when due, Lender may so notify Borrower in writing, and, in such case Borrower shall pay to Lender the amount necessary to make up the deficiency. Borrower shall make up the deficiency in no more than twelve monthly payments, at Lender's sole discretion. Upon payment in full of all sums secured by this Security Instrument, Lender shall promptly refund to Borrower any Funds held by Lender. If, under paragraph 21, Lender shall acquire or sell the Property, Lender, prior to the acquisition or sale of the Property, shall apply any Funds held by Lender at the time of acquisition or sale as a credit against the sums secured by this Security Instrument. F 3. Application of Payments. Unless applicable law provides otherwise, all payments received by Lender under paragraphs I and 2 shall be applied: first, to any prepayment charges due under the Note; second, to amounts payable under paragraph 2; third, to interest due; fourth, to principal due; and last, to any late charges due under the Note. 4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines and impositions attributable to the Property which may attain priority over this Security Instrument, and leasehold payments or ground rents, if any. Borrower shall pay these obligations in Qre manner provided in paragraph 2, or if not paid in that manner, Borrower shall pay them on time directly to the person owed payment. Borrower shall promptly furnish to Lender all notices of amounts to be paid under this paragraph. If Borrower makes these payments directly, Borrower shall promptly furnish to Lender receipts evidencing the payments. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender; (b) contests in good faith the lien by, or defends against enforcement of the lien in, legal proceedings which in the Lender's opinion operate to prevent the enforcement of the lien; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Lender determines that any part of the Property is subject to a lien which may attain priority over this Security Instrument, Lender may give Borrower a notice identifying the lien. Borrower shall satisfy the lien or take one or more of the actions set forth above within 10 days of the giving of notice. 5. Hazard or Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire, hazards included within the term "extended coverage" and any other hazards, including floods or flooding, for which Lender requires insurance. This insurance shall be maintained in the amounts and for the periods that Lender requires. The insurance carrier providing the insurance shall be chosen by Borrower subject to Lender's approval which shall not be unreasonably withheld. If Borrower fails to maintain coverage described above, Lender may, at Lender's option, obtain coverage to protect Lender's rights in the Property in accordance with paragraph 7. All insurance policies and renewals shall be acceptable to Lender and shall include a standard mortgage clause. Lender shall have the right to hold the policies and renewals. If Lender requires, Borrower shall prompd give to Lender all receipts of paid Single Family - Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Rev. 9/90 Page 2 of 6 Initials: OF Vw. 7192 DMIV I AN9 parr 941; premiums and renewal notices. In the ev^t of loss, Borrower shall give prompt notice tr'',e insurance carrier and Lender. Lender may make proof of loss if not made pre. . dy by Borrower. Unless Lender and Borrower otherwise agree in writing, insurance proceeds shall be applied to restoration or repair of the Property damaged, if the restoration or repair is economically feasible and Lender's security is not lessened. If the restoration or repair is not economically feasible or Lender's security would be lessened, the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with any excess paid to Borrower. If Borrower abandons the Property, or does not answer within 30 days a notice from Lender that the insurance carrier has offered to settle a claim, then Lender may collect the insurance proceeds. Lender may use the proceeds to repair or restore the Property or to pay sums secured by this Security Instrument, whether or not then due. The 30-day period will begin when the notice is given. Unless Lender and Borrower otherwise agree in writing, any application of proceeds to principal shall not extend or postpone the due date of the monthly payments referred to in paragraphs 1 and 2 or change the amount of the payments. If under paragraph 21 the Property is acquired by Lender, Borrower's right to any insurance policies and proceeds resulting from damage to the Property prior to the acquisition shall pass to Lender to the extent of the sums secured by this Security Instrument immediately prior to the acquisition. 6. Occupancy, Preservation, Maintenance and Protection of the Property; Borrower's Loan Application; Leaseholds. Borrower shall occupy, establish, and use the Property as Borrower's principal residence within sixty days after the execution of this Security Instrument and shall continue to occupy the Property as Borrower's principal residence for at least one year after the date of occupancy, unless Lender otherwise agrees in writing, which consent shall not be unreasonably withheld, or unless extenuating circumstances exist which are beyond Borrower's control. Borrower shall not destroy, damage or impair the Property, allow the Property to deteriorate, or commit waste on the Property. Borrower shall be in default if any forfeiture action or proceeding, whether civil or criminal, is begun that in Lender's good faith judgment could result in forfeiture of the Property or otherwise materially impair the lien created by this Security Instrument or Lender's security interest. Borrower may cure such a default and reinstate, as provided in paragraph 18, by causing the action or proceeding to be dismissed with a ruling that, in Lender's good faith determination, precludes forfeiture of the Borrower's interest in the Property or other material impairment of the lien created by this Security Instrument or Lender's security interest. Borrower shall also be in default if Borrower, during the loan application process, gave materially false or inaccurate information or statements to Lender (or failed to provide Lender with any material information) in connection with the loan evidenced by the Note, including, but not limited to, representations concerning Borrower's occupancy of the Property as a principal residence. If this Security Instrument is on a leasehold, Borrower shall comply with all the provisions of the lease. If Borrower acquires fee title to the Property, the leasehold and the fee title shall not merge unless Lender agrees to the merger in writing. 7. Protection of Lender's Rights in the Property. If Borrower fails to perform the covenants and agreements contained in this Security Instrument, or there is a legal proceeding that may significantly affect Lender's rights in the Property (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture or to enforce laws or regulations), then Lender may do and pay for whatever is necessary to protect the value of the Property and Lender's rights in the Property. Lender's actions may include paying any sums secured by a lien which has priority over this Security Instrument, appearing in court, paying reasonable attorneys' fees and entering on the Property to make repairs. Although Lender may take action under this paragraph 7, Lender does not have to do so. Any amc`mts disbursed by Lender under this paragraph 7 shall become additional debt of Borrower secured by this Security Instrument. r Unless Borrower and Lender agree to other terms of payment, these amounts shall bear interest from the date of disbursement at the Note rate and shall be payable, with interest, upon notice from Lender to Borrower requesting payment. 8. Mortgage Insurance. If Lender required mortgage insurance as a condition of making the loan secured by this Security Instrument, Borrower shall pay the premiums required to maintain the mortgage insurance in effect. If, for any reason, the mortgage insurance coverage required by Lender lapses or ceases to be in effect, Borrower shall pay the premiums required to obtain coverage substantially egWvalent to the mortgage insurance previously in effect, at a cost substantially equivalent to the cost to Borrower of the mortgage insurance previously in effect, from an alternate mortgage insurer approved by Lender. If substantially equivalent mortgage insurance coverage is not available, Borrower shall pay to Lender each month a sum equal to one-twelfth of the yearly mortgage insurance premium being paid by Borrower when the insurance coverage lapsed or ceased to be in effect. Lender will accept, use and retain these payments as a loss reserve in lieu of mortgage insurance. Loss reserve payments may no longer be required, at the option of Lender, if mortgage insurance coverage (in the amount and for the period that Lender requires) provided by an insurer approved by Lender again becomes available and is obtained. Borrower shall pay the premiums required to maintain mortgage insurance in effect, or to provide a loss reserve, until the requirement for mortgage insurance ends in accordance with any written agreement between Borrower and Lender or applicable law. 9. Inspection. Lender or its agent may make reasonable entries upon and inspections of the Property. Lender shall give Borrower notice at the time of or prior to an inspection specifying reasonable cause for the inspection. 10. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of any part of the Property, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Lender. In the event of a total taking of the Property, the proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with any excess paid to Borrower. In the event of a partial taking of the Property in which the fair market value of the Property immediately before the taking is equal to or greater than the amount of the sums secured by this Security Instrument immediately before the taking, unless Borrower and Lender otherwise agree in writing, the sums secured by this Single Family - Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Rev. 9/90 Page 3 of 6 Initials: uFr Vwr 7/92 BOA458 racy 247 Security Instrument shall be reduced by '`e amount of the proceeds multiplied by the f- "owing fraction: (a) the total amount of the sums secured immediately before tht. dng, divided by (b) the fair market value of t, Joperty immediately before the taking. Any balance shall be paid to Borrower. In the event of a partial taking of the Property in which the fair market value of the Property irrnnediately before the taking is less than the amount of the sums secured immediately before the taking, unless Borrower and Lender otherwise agree in writing or unless applicable law otherwise provides, the proceeds shall be applied to the sums secured by this Security Instrument whether or not the sums are then due. If the Property is abandoned by Borrower, or if, after notice by Lender to Borrower that the condemnor offers to make an award or settle a claim for damages, Borrower fails to respond to Lender within 30 days after the date the notice is given, Lender is authorized to collect and apply the proceeds, at its option, either to restoration or repair of the Property or to the sums secured by this Security Instrument, whether or not then due. Unless Lender and Borrower otherwise agree in writing, any application of proceeds to principal shall not extend or postpone the due date of the monthly payments referred to in paragraphs I and 2 or change the amount of such payments. 11. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for payment or modification of amortization of the sums secured by this Security Instrument granted by Lender to any successor in interest of Borrower shall not operate to release the liability of the original Borrower or Borrower's successors in interest. Lender shall not be required to commence proceedings against any successor in interest or refuse to extend time for payment or otherwise modify amortization of the sums secured by this Security Instrument by reason of any demand made by the original Borrower or Borrower's successors in interest. Any forbearance by Lender in exercising any right or remedy shall not be a waiver of or preclude the exercise of any right or remedy. 12. Successors and Assigns Bound; Joint and Several Liability; Co-signers. The covenants and agreements of this Security Instrument shall bind and benefit the successors and assigns of Lender and Borrower, subject to the provisions of paragraph 17. Borrower's covenants and agreements shall be joint and several. Any Borrower who co-signs this Security Instrument but does not execute the Note: (a) is co-signing this Security Instrument only to mortgage, grant and convey that Borrower's interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any other Borrower may agree to extend, modify, forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without that Borrower's consent. 13. Loan Charges. If the loan secured by this Security Instrument is subject to a law which sets maximum loan charges, and that law is finally interpreted so that the interest or other loan charges collected or to be collected in connection with the loan exceed the permitted limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (b) any sums already collected from Borrower which exceeded permitted limits will be refunded to Borrower. Lender may choose to make this refund by reducing the principal owed under the Note or by making a direct payment to Borrower. If a refund reduces principal, the reduction will be treated as a partial prepayment without any prepayment charge under the Note. 14. Notices. Any notice to Borrower provided for in this Security Instrument shall be given by delivering it or by mailing it by first class mail unless applicable law requires use of another method. The notice shall be directed to the Property Address or any other address Borrower designates by notice to Lender. Any notice to Lender shall be given by first class mail to Lender's address stated herein or any other address Lender designates by notice to Borrower. Any notice provided for in this Security Instrument shall be deemed to have been given to Borrower or Lender when given as provided in this paragraph. 15. Govbrning Law; Severability. This Security Instrument shall be governed by federal law and the law of the jurisdiction in which the Property is located. In the event that any provision or clause of this Security Instrument or the Note conflicts with applicable law, such conflict shall not affect other provisions of this Security Instrument or the Note which can be given effect without the conflicting provision. To this end the provisions of this Security Instrument and the Note are declared to be severable. 16. Borrower's Copy. Borrower shall be given one conformed copy of the Note and of this Security Instrument. 17. Transftr, : of the Property or a Beneficial Interest in Borrower. If all or any part of the Property or any interest in it is sold or transferred (or if a beneficial interest in Borrower is sold or transferred and Borrower is not a natural person) without Lender's prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this Security Instrument. If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is delivered or mailed within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. 18. Borrower's Right to Reinstate. If Borrower meets certain conditions, Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time prior to the earlier of: (a) 5 days (or such other period as applicable law may specify for reinstatement) before sale of the Property pursuant to any power of sale contained in this Security Instrument; or (b) entry of a judgment enforcing this Security Instrument. Those conditions are that Borrower: (a) pays Lender all sums which then would be due under this Security Instrument and the Note as if no acceleration had occurred; (b) cures any default of any other covenants or agreements; (c) pays all expenses incurred in enforcing this Security Instrument, including, but not limited to, reasonable attorneys' fees; and (d) takes such action as Lender may reasonably require to assure that the lien of this Security Instrument, Lender's rights in the Property and Borrower's obligation to pay the sums secured by this Security Instrument shall continue unchanged. Upon reinstatement by Borrower, this Security Instrument and the obligations secured hereby shall remain fully effective Single Family - Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Rev. 9/90 Page 4 of S Initials: LIFT vw. 7192 BOOK1458fact 348 as if no acceleration had occurred. How-er, this right to reinstate shall not apply in tb- ase of acceleration under paragraph 17. 19. Sale of Note; Change of Loan L , icer. The Note or a partial interest in the Nc ;together with this Security Instrument) may be sold one or more times without prior notice to Borrower. A sale may result in a change in the entity (]mown as the "Loan Servicer") that collects monthly payments due under the Note and this Security Instrument. There also may be one or more changes of the Loan Servicer unrelated to a sale of the Note. If there is a change of the Loan Servicer, Borrower will be given written notice of the change in accordance with paragraph 14 above and applicable law. The notice will state the name and address of the new Loan Servicer and the address to which payments should be made. The notice will also contain any other information required by applicable law. 20. Hazardous Substances. Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower shall not do, nor allow anyone else to do, anything affecting the Property that is in violation of any Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property. Borrower shall promptly give Lender written notice of any investigation, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower learns, or is notified by any governmental or regulatory authority, that any removal or other remediation of any Hazardous Substance affecting the Property is necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law. As used in this paragraph 20, "Hazardous Substances" are those substances defined as toxic or hazardous substances by Environmental Law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials. As used in this paragraph 20, "Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that relate to health, safety or environmental protection. NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows: 21. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under paragraph 17 unless applicable law provides otherwise). Lender shall notify Borrower of, among other things: (a) the default; (b) the action required to cure the default; (c) when the default must be cured; and (d) that failure to cure the default as specified may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. Lender shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured as specified, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 21, including, but not limited to, attorneys' fees and costs of title evidence to the extent permitted by applicable law. 22. Relelse. Upon payment of all sums secured by this Security Instrument, this Security Instrument and the estate conveyed shall termineite and become void. After such occurrence, Lender shall discharge and satisfy this Security Instrument without charge to Borrower. " Borrower shall pay any recordation costs. 23. Waivers. Borrower, to the extent permitted by applicable law, waives and releases any error or defects in proceedings to enforce this Security Instrument, and hereby waives the benefit of any presentbr future laws providing for stay of execution, extension of time, exemption from attachment, levy and sale, and homestead exemption. 24. ReinsWement Period. Borrower's time to reinstate provided in paragraph 18 shall extend to one hour prior to the commencement of bidding at a sheriffs sale or other sale pursuant to this Security Instrument. 25. Purchase Money Mortgage. If any of the debt secured by this Security Instrument is lent to Borrower to acquire title to the Property, this Security Instrument shall be a purchase money mortgage. 26. Interest Rate After Judgment. Borrower agrees that the interest rate payable after a judgment is entered on the Note or in an action of mortgage foreclosure shall be the rate payable from time to time under the Note. PENNSYLVANIA - Single Family - Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3039 9190 Page 5 of 6 Lases Forme Inc. 1800) 448-3555 LIFT X3039 9/93 Initials: Igomi14 Q AGE eon 27. Riders to this Security Instn, ut. If one or more riders are executed by ' Tower and recorded together with this Security Instrument, the covenants and ab_ ements of each such rider shall be incorporate, .ato and shall amend and supplement the covenants and agreements of this Security Instrument as if the rider(s) were a part of this Security Instrument. [Check applicable box(es)] ? Adjustable Rate Rider ? Graduated Payment Rider ? Balloon Rider ? Other(s) [specify] ? Condominium Rider ? Planned Unit Development Rider ? Rate Improvement Rider ? 1-4 Family Rider ? Biweekly Payment Rider ? Second Home Rider BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Security Instrument and in any rider(s) executed by Borrower and recorded with it. Witnesses: I Certificate of Residence Below This Line For Acknowledgmenil _ (Seal) -Borrower _ (Seal) -Borrower _ (Seal) -Borrower I, SUZANNE QUATRARA do hereby ckrtify that the correct address of the within-named Mortgagee is 4931 CARLISLE PIKE, HARRISBURG, PA 17055 Witness my hand this 22ND day of 8;r COMMONWEALTH OF PENNSYLVANIA, On this, the 22ND day of MAY WAYNE L. ULSH MAY 1998• _ Agent of Mortgagee ?lx k? t(I t t lLC County ss: 1998 before me the undersigned officer, personally appeared known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument and acknowledged that HE executed the same for the purposes herein contained. ? s IN WITNESS WHEREO F, I hereunto set my hand and official seal. t4 ? •. ?? r, My Commission expires: Notarial Seal R bi 7 ' y o n J. Goshom, Notary Public C l t?l x ar isle Boric, Cumberland County My Commission Expires April 17, `f• •'`c * + + o i;''" PENNSYLVANIA - Sing e Family ann se r e sc IFORM INSTRUMENT "a •%+:'"" -" ^' " r • Form 3039 9190 Page 8 0 8 a? ?f ' "J Q ?'? is Laser Forms Inc. (800) 448-3555 LIFT 53038 9/93 Initials: 86091458 PACE S V 41 M J a y +`? .?I Q W q ? } H" ` J a I IJ ? ,? rtt rzn , IAA I (Seal) WAYTI L. ULSH -Borrower LEGAL DESCRIPTION ALL THOSE TWO certain tracts of land situate in the Village of Plainfield in West Pennsboro Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows: TRACT NO. 1: BEGINNING at a point at the northwestern corner of Tract No. 2 hereinafter described which is a point in the centerline of the State Highway leading from the Borough of Carlisle to Newville known as Pennsylvania Route No. 641, which is also known as Main Street in the Village of Plainfield, which point at the Place of Beginning is 232 feet west of land formerly of Allen W. Shatto and later of R. Smith Reese; thence from said point at the Place of Beginning along the western line of Tract No. 2 hereinafter described„ South 12 degrees 30 minute West a distance of 176.7 feet to line of property formerly of Bertie Elliott; thence along line of said land now or formerly of Bertie Elliott, North 77 degrees 30 minutes West a distance of 75 feet to a point in line of land now or formerly of Harper Kell; thence along the eastern line of said land now or formerly of Harper Kell, North 12 degrees 30 minutes East a distance of 176.7 feet, more or less, to a point in the centerline of said State Highway now known as Main Street; thence along the centerline of said Main Street, South 77 degrees 30 minutes East a distance of 75 feet to a point at the northwestern comer of Tract No. 2 hereinafter described at the Place of BEGINNING. THE ABOVE-described Tract No. 1 has thereon erected a bungalow and other improvements and is designated as 36 East Main Street, Plainfield, Pennsylvania 17081. 'B'RACT NO. 2: a- BEGINNING at a point in the centerline of the State Highway leading from the Borough of Carlisle to Newville, known as Pennsylvania Route No. 641, which is also known as Main Street in the Village of Plainfield, at the northwestern corner of land now orfnrmerly of Robert Yinger, and which point at the Place of Beginning is 100 feet west of land formerly of Allen W. Shatto and later of R. Smith Reese; thence from said point at the Place of Beginning along the western line of said land now or formerly of Robert Yinger, South 12 degrees 30 minutes West a distance of 176.7 feet to a point in the line of land now or formerly of Bertie Elliott; thence along line of said land now or formerly of Bettie Elliott, North 77 degrees 30 minutes West a distance of 130 feet, more or less, to a point at the southeastern corner of Tract No. I hereinabove described; thence along the eastern line of said Tract No. 1 hereinabove described, North 12 degrees 30 minutes East a distance of 176.7 feet, more or less, to a point in the centerline of said State Highway now known as Main Street; thence along the centerline of said Main Street, South 77 degrees 30 minutes East a distance of 132 feet, more or less, to a point at the Place of BEGINNING. ROA458 rac`r 251 BEING the same two tracts of land which by Decree Awarding Real Estate in the Estate of John L. Ulsh, also known as J. Lee Ulsh, dated June 21, 1995, and recorded June 21, 1995, in the Office of the Recorder of Deeds in and for Cumberland County at Carlisle, Pennsylvania, in Deed Book 123, Page 1002, was awarded to Wayne L. Ulsh, your Mortgagor herein, and his sister, Carolyn L. Baldwin, as equal tenants in common. 6 ?j ,w: s,rF i ? y -4 1 'yr,- ar State of Pennsylvania tt County of Cumberland) 86 fA'P14r Recor ed i the office for the recor,,A?ngof Deeds .???.. „„. ect n riandCounty(Ptj15 d ?r f n Bo o 9s (? ly with ss y han al of offi Y Carli , A thi da n em 1458 rack 1 4 L: t i 9^ tSSIGNMENT' OF MORTGAGE KNOW ALL MEN BY THESE PRESENTS, that FIRST UNITED MORTGAGE SERVICES INC., for valuable consideration received to its full satisfaction, does hereby sell, assign, transfer and set over unto NORTHWEST SAVINGS BANK, and/or their respective successors or assigns as their interest may appear, P.O. Box 1793, 108 Liberty Street, Warren, Pennsylvania, a certain Mortgage dated the 22ND day of _ MAY , 1998 executed and delivered to FIRST UNITED MORTGAGE SERVICES INC. by WAYNE L. ULSH (WEST PENNSBORO TWP) and recorded in Mortgage Book Volume Page together with a Promissory Note secured thereby and referred to therein; and all sums of money due and to become due thereon. MORTGAGE AMOUNT $ 43,750.00 IN WITNESS WHEREOF, FIRST UNITED MORTGAGE SERVICES INC. hereunto sets its hand this 22ND day of MAY 19 98. Witness: FIRST T MORTGAG RVIC BY ..,,; Norma R. Moss, President COMMONWEALTH OF PENNSYLVANIA ) i3 c SS. t COUNTY OF CUMBERLAND ) N On this, the 22ND day of MAY 1998 , before me, a Notary Public, the undersigned officer, personally appeared Norma R. Moss, who acknowledged herself to be the President of First United Mortgage Services Inc., a corporation, and that she as such President, being authorized to do so, executed the foregoing instrument for the purpose therein contained by signing the name of the corporation by herself as President. IN WITNESS WHEREOF, I hereunto set my hand and official seal. 9 jw 0, ?e? (XX Q Nota Public After recording return to: JulleA.DowfleiNotptr Hampden Twp„ qumberl Y publio ;u. FIRST UNITED MORTGAGE SERVICES, INC. MY Commission Expires NOVa2000Un 4931 Carlisle Pike Member, Pennsylvania Association of N2ta o EXHIBIT Mechanicsburg, PA 17055 Ota, ie5 C wa 578 PAGE 664 n mytvama t, s" n6 86 ror the ecording oDeeds ourt . Pd a rf office Of ?J day of " 19 zz r? WILL ). SCHAAF RITCHIE T. MARSH WILLIAM ). SCHAAF JAMES E. MARSH, JR. JOHN P. EPPINGER THOMAS E. KUHN JOHN B. FESSLER )EFFREYD. SCIBETTA EUGENE C. SUNDBERG, JR. DONALD F. FESSLER, JR. KURT L. SUNDBERG MARSH SPAEDER BAUR. SPAEDER. & SCHAAF A T T O R N E Y S AT L A W LIMITED LIABILITY PARTNERSHIP SUITE 300, 300 STATE STREET ERIE, PA 16507 (814) 456-5301 FAY-(814)456-1112 www.ntarshspaeder.com January 13, 2005 Wayne L. Ulsh 36 East Main Street Plainfield, PA 17081 Re: Northwest Savings Bank v. Wayne L. Ulsh Cumberland County No. 04-5660 Dear Mr. Ulsh: ANTHONY R. HR9ES ANDREW M. SCHMIDT RITCHIE T. MARSH (1870-1947) JAMES E. MARSH (1908-1988) RoBERTN.SPAEDER(1915-1993) JOHN A. SPAEDER (1902-1994) BYRON A. BAUR (1906-2002) We have received the Answer that you filed to the Complaint in Mortgage Foreclosure that we have filed in the above-referenced case on behalf of Northwest Savings Bank. Your Answer takes exceptions to the request for interest and late charges through February 1, 2005 which you allege has not yet been earned. Please note that the calculation of interest and late charges through February 1, 2005 states what will be due as of an anticipated Sheriff s Sale date of February 1, 2005. Because you filed an Answer to the Complaint, this will delay any potential Sheriff s Sale date to a later date and the amounts set forth in the Complaint will have to be revised through the date of the actual Sheriff s Sale date. Your Answer also requests an analysis of the negative escrow and the collection fee. Pursuant to your request, I am enclosing a printout from Northwest Savings Bank showing that your mortgage loan is currently $8,133.94 past due. The letter also provides a detailed breakdown of all disbursements that have been made by Northwest Savings Bank related to your mortgage loan that have resulted in a negative escrow balance of $2,879.82. Please note that these disbursements include payment of the real property taxes on your property for 2003 and 2004, as well as your homeowners insurance premiums for 2003 and 2004. It also includes disbursements by Northwest Savings Bank for legal fees and costs incurred by reason of your mortgage defaults totaling $1,822.00. The claim for $2,900.00 in the Complaint is anticipated legal fees due as of the time that your property goes to Sheriff's Sale. In support of the legal fees and costs already paid by Northwest Savings Bank and fees and costs that have been incurred by Northwest Savings Bank but not yet paid, I am enclosing copies of the invoices for legal services and costs incurred by reason of the mortgage payment defaults, your bankruptcy filing and the mortgage foreclosure proceedings. EXHIBIT I$ D MARSH SPAEDER BAUR SPAEDER & SCHAAF, LLP January 13, 2005 In the event you have any questions, you should contact an attorney. If you do not have an attorney or cannot afford to hire an attorney, you should contact: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Very truly yours, MARSH SPAEDER BAUR SPAEDER & SCHAAF, LLP By Kurt undberg Tr- KLS/jc WARNING: THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. Date: January 13, 2005 Borrower: Ulsh, Wayne L. DEBT VALIDATION NOTICE 1. As of the date of this letter, you owed $45,833.00 (total payoff). Because of interest, late charges and other charges that may vary from day to day, the amount due on the day you pay may be greater. Hence, if you pay the amount shown above, an adjustment may be necessary after we receive your check, in which event we will inform you before depositing the check for collection. For further information, write the undersigned or call (814) 456-5301. The name of the creditor to whom your debt is owed is: Northwest Savings Bank. 3. Unless you dispute the validity of the debtor any portion of the debt within thirty (30) days after you receive this Notice, we will assume that the debt is valid. 4. If you notify us in writing within thirty (30) days after you receive this Notice that the debt or any portion thereof is disputed by you, we will obtain verification of the debt and we will mail a copy of the verification to you, and if a judgment has been entered against you for the debt, we will obtain a copy of the judgment and we will mail it to you. 5. Upon your written request to us within thirty (30) days after you receive this Notice, we will provide you with the original creditor's name and address if they are different than the creditor to whom your debt is now owed. WARNING: THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. Very truly yours, MARSH SPAEDER BAUR SPAEDER & SCHAAF, LLP By. Kurt KLSljc 01110/2005 04:23 M?8147287740 v? Carol Danielson 218 Liberty St., PO Box 337 Phone # 814-728.7406 OR 1-877-300-5779 FAX # 814-728-7740 TO: FAX NUMBER: DATE: KURTSUNDBERO 814-456.1112 01110/05 PAGE NUMBER OF PAGES INCLUDING COVER: 05 RE: ULS14: WAYNE ACCOUNT # 69-81-00270030 DEAR KURT: FOLLOWING IS THE AMOUNT REQUIRED TO THE LOAN THOROUGH JANUARY 31, 2005. THIS CALCULATION DOES NOT INCLUDE ANY UNPAID LEGAL FEES. 69-81-00210030 10103 - 01/04 04 PAYMENTS @ $472.92 S 1,891.98 02104 - 01105 12 PAYMENTS (ct? $497,72 = $ 5,972.64 LATE FEES THROUGH 01131105 S 269.62 TOTAL DUE $ 8,133.94 PRINCIPAL DUE: S 736.36 INTEREST DUE: S 4,339.16 ESCROW DUE: S 2,788,80 LATE FEES DUE S 269.62 TOTAL: $ 8,133,94 tVLl;15ttd IS AS FOLLOWS: 12123/02 - MARSH SPAEDER LEGAL FEES $ 500.50 02/03/03 - CUNNINGHAM/CHERNICOFF LEGAL FEES 666.00 03127/03 - COUNTY & MUNICIPAL PROPERTY TAX TAXES 161.81 07118/03 - SCHOOL TAXES TAXES S 770.20 08129/03 -DONEGAL WO INS. 381.00 06/07104 - COUNTY & MUNICIPAL TAX TAXES S 179.23 09/13/04 - PURCELL, LRUG, HALLER LEGAL FEES $ 500.00 09/29/04 - SCHOOL TAX TAXES 849.69 11/23/04 - KEMPER H/O INS. S 376.00 12/17/04 - MARSH SPAEDER LEGAL FEES 155.50 12102 POSITVE ESCROW AMOUNT: S 328,00 ESCROW CREDIT TOTAL FROM 12103 TO CURRENT $ 1,332.11 TOTAL DISBURSEMENTS FROM ABOVE $ 4,539.93 NEGATIVE ESCROW TOTAL FROM PAYOFF $1,2;?7 ' IF YOU HAVE ANY QUESTIONS OR REQUIRE ADDITIONAL INFORMATION, PLEASE FEEL FREE TO CONTACT ME. CAROL DANIELSON COLLECTIONS FAX TRANSMISSION SHEET 01/05 8147287740 98% JAN-10-2005 16:24 01!1.0!2_005 04:23 8147287740 COLLECTIONS PAGE 02/05 roan System -715-1- ayo QPADEV000: Note number: 698100270030 Participation sold: 100.0000 % Short name: ULSH WAYNE L Payoff year base: ACT/360 Payoff good thru: 1-31-04 *---------------------Payoff Data---------------------* Payoff date: Net payoff: Principal amount: Interest due: Late fees due: Unpaid insurance: Unpaid fees: Escrow balance: Payoff interest per day: Unapplied funds: Total of other rebates: F3=Exit F12=Cancel 1-31-04 45,833.00 41,325.35 1,374.07 253.76 .00 .00 2,879.82- 9.039920 .00 .00 JPN-10-2005 16:24 8147287740 98% MARSH SPARDRR RAUR SPAFnFR r, SC;AAAF T.T.P SUITE :'•00 300 STATE STREET EP.IE PA 16507 814-4S6-5301 FAX 814-456-1112 FED ID 25-0640643 ATTN BRADEN R JONES PAGE 1 ?IORTIIWEST SAVINGS BANK 12!19/02 FV BVn 1793 FILE 1020411-006 WARREN PA 16365 INVOICE 1 U17-SIT WAYNE L MORTGAGE FORECLOSURE HOURS 0Gi Ui 02 KLS Review documents t=om bank; open file; conference reclardina rherkinCT docket. 0.70 "v ?i 30i 02 KLS Review Bankruptcy documents; dratt Motion for Relief from Stay; re+riew information ^n attorney: in ^_umbcrland count1. (7 6c, 0//01/02 X_LS Ilxaft xevi Acan,s to Motion for Relief Frnm S 0. 45 0//Ob/02 KLS Telephone call with <.rn_ln4?1 in HaxriL5 ?irn regarding representation. 0.15 KLS Telephone call with r"„n5el in Harri<birrt r=gar.ding acting a& local C-unsel in _ ud?:i:l upt Cy GG56. v. i 07/15/02 I?Tq Draft r2Ji Gi.C_`1G f0 MOt4c fC- n?lia< frnr:, Stay and Proposed UlderS. 0.45 07/16/02 ICLS Drat rcVisiont5 to Motion and letter tc iocal coun5ei. 08/21/07 ILLS Phone call with local counsel; phone PAGE 2 NORTHWEST SAVINGS BANK 12119102 PILE 1020411-00C INVOICE i ULSH WAYNE L MORTGAGE FORECLOSURE HOURS call.p to Northwest regarding amounts needed. 0.25 08/24/U2 KLS Draft letter to local comnsel rea_ardinq_ amounts owed. 0.25 08/26/0, KLS Draft revision to letter to local counsel. 0.10 0y/14/U2 KL:S Review doc).nnent.s from local counsel, draft letter to Brad Jones regarding same. 0.15 10/2'7/02 KLS Review File; draft letter. 0.1`_. 11/01/02 KLS Phone call with Carol Danielson regardinq status of lean; draft letter to local cciunsel in Harrisburg, 'r n. 0.40 11/05/02 KT I Phone call ,, thi Atf J , Van E'k regarding course Of act on. V.10 .SERVICES RENDERED 4.00 500.00 AT IORNE HOURS H&URL`i RATE TOTAL KURT L SUNDBERG (KhSI 4.00 $125.00 $h0o.0o 0G/14/04- Docket - US Baiikiuptc:y "Cc.urt Clerk U.SG TOTAL DISBiRSEMENTB 9.50 CUrik;EWf TvTAL SCU.50 TOTAL BALANrr: DUE cc?p 5; MARSH SPARDFR RAUR SPARDER F SCHAAF LOP SUITE 30O 300 STATE STREET ERIE PA 1650? 814-456-5:202 FAX 214-456-1112 FED ID 25-0640643 ATTN BRADEN R !TONES t;OeTIMEST_ SAVINGS BAN11c PO BOX 1793 WARREN PA 16365 ULSH W.AYNE L MORTC:AGE FORECLOSURE 11206/04 rile complaint - Prothonotary 11/0004 Serve complaint - Cumberland County Sherif± TOTAL _DI_UEZS. EN,RS TS . CURRENT TOTAL PREVIOUS BALANCE DUE 12/21/02 PAYMENT RECEIVED TOTAL BALANCE DUE PAGE 1 12/09/04 FILE 1020411-OOC; INVOICE l 55.50 100.00 05.50 155.sO Y500 w -boo .5U $165.50 MARSH SPARiDER RAUR SPARDER ti SCEAAF IM SUITE 300 300 STATE STREET ERIE PA 1656? 814-456-001 PAX 814-456-1112 FED ID 25-0646643 ATTN BRADEN R JONES NORTIH4rST SAVINGS BF?dK PO BOX 1793 WARREN PA 1636b ULSII WAYNE L MORTGAGE FORECLOSURE 11/02/ 04 KLS Draft Complaint 11 !OK04 y KLS Waft revisions to Complaint 11/04/04 KLS Draft revisions to Complaint; prepare unhibito to Complaint 11/0.5/04 _KLS Draft revisions to Complaint. 11/0004 KLS Prepare Complaint for filing, 11/06/04 KLS Review tide search 12/09/04 KLS Review sheYiff return 12!26/04 KLS Draft important Notice and prepare important Notice for filing and service r1/06/n5 lc[„r .__ .. De R-' KLS Review Answer filed by Defendant; file phone call with Brad Jone 01/10/05 KLS Conference with Andy Schmidt regarding PAGE 1 003/05 FILE 1020411-OOC INVOICE 5 DRAFT STATEMENT 0.30 0.40 0,20 0.15 U.LQ 0.10 0.15 0.26 16 i7 ib 19 20 21 22 23 24 PAGE 2 NORTHWEST SAVINGS RANK 01/13/05 FILE 1020411-OOC INVOICE ULSH WAYNE L MORTGAGE FORECLOSURE HOURS Motion for Summary Judgment; phone call with Carol Danielson regarding statements regarding escrow account 0.30 01/11/05 KLS Reveiw documents from bank; draft letter to defendant regarding past due amount and escrow shortage 0.40 SERVICES RENDERED 2.60 390.00 ATTORNEY HOURS HOURLY RATE TOTAL KURT L SUNDBER.G (KLS) 2.50 5150.00 $390.00 CURRENT TOTAL 390.00 PREVIOUS B'-'LANCE DUE $155.50 11/O9/04 SHERIFF REFUND RECEIVED -b1.b6 12122104 PAYMENT RECEIVED -155.50 -223.06 TOTAL BALANCE DUE 5322.44 25 2b 2 3 CUNNINGHAM & CHERNICOFF, P.C. 2320 N. 2nd Street, P.O. Box 60457 Harrisburg, PA 17106-0457 Ph: (717) 238-6570 Northwest Savings Bank c/o Kurt Sundberg - Marsh Spaeder 300 State Street - Suite 300 Erie, PA 16507 Attention: Re: v. Ulsh DATE DESCRIPTION Aug-14-02 Review and revise Motion for Relief from Fax:(717) 238-4809 Automatic Stay; Aug-20-02 Review and revise Motion for Relief regarding Ulsh; Aug-21-02 Travel to Cumberland County Recorder of Deeds; obtain mortgage information; Sep-1 1-02 Filing of Order & Motion for Relief from Automatic Stay; Sep-17-02 Serve Motion for Relief from Stay and Order on interested parties; preparation of Certificate of Service; Sep-18-02 Filing of Certificate of Service; Nov-01-02 Telephone conference with Attorney Sundberg regarding status of payments; Nov-04-02 Telephone conference with Attorney Sundberg regarding arrears brought current; course of action regarding pending motion; Drafting stipulation resolving Motion for Relief; Nov-27-02 Review and revise stipulation to eliminate Paragraph 5 in accordance with Debtor's objection; Correspondence to Debtor's attorney regarding revised stipulation; Jan 13, 2003 File #: 803802 Inv #: 25565 HOURS AMOUNT LAWYER 0.80 120.00 HVE 030 45.00 HVE 1.50 112.50 HPS 0.20 15.00 KMC 0.50 37.50 HPS 0.20 15.00 KMC 0.20 30.00 HVE 0.20 30.00 HVE 0.50 75.00 HVE 0.30 45.00 HVE 0.20 30.00 HVE Totals $555.00 11'0ic4 #1 25565 DISBURSEMENTS Photocopy documents Sep-12-02 Filing fee Totals Total Fees, Disbursements Previous Balance Previous Payments $111.00 Balance Due Now We Accept Visa & Mastercard FEE SUMMARY: Lawyer Hours Effective Rate Henry W. Van Eck 2.50 $150.00 Holly Siekerman-Paralegal 2.00 $75.00 Kim Connagban-Paral... 0.40 $75.00 Page 2 January 13, 2003 Disbursements 36.00 75.00 Amount $375.00 $150.00 $30.00 $0.00 $666.00 $0.00 $0.00 $666.00 ? \?_ ?? e v ?? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NORTHWEST SAVINGS BANK, successor-in-interest to FIRST UNITED MORTGAGE SERVICES, INC., Plaintiff V. WAYNE L. ULSH, Defendant NO. 2004 - 5660 AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA COUNTY OF WARREN ss: I, Braden R. Jones, being duly sworn according to law, do hereby depose and state: 1. I am a Vice President with Northwest Savings Bank. 2. 1 am in charge of the Loan Servicing Department and collection of delinquent accounts. 3. I am familiar with all matters set forth in this Affidavit. 4. The defendant, Wayne L. Ulsh, is required to make payments of principal and interest of $317.22 per month under his Note and Mortgage held by Northwest Savings Bank and dated May 22, 1998 in the original amount of $43,750.00. 5. The defendant's total monthly payment is currently $497.72, which includes a principal and interest payment of $317.22 and a monthly escrow for the payment of real estate taxes and insurance in the amount of $180.50. 6. The last monthlypaymentthat wasmade bythedefendant wasinSeptemberof2 77E ?FEB-08-2005 13:48 FROM MARSH SPAEDER LAW FIRM TO 18147287740 P.02/02 Defendant's monthly payments are due on the 1st day of each month. 8. The defendant is due for the monthly payments of October through December of 2003, January through December of 2004 and January of 2005. 9. As of January 10, 2005, the total delinquency of principal, interest and late fees due and owing on the defendant's Note and Mortgage to Northwest Savings Bank is $8,133.97. See, Reinstatement Sheet attached hereto as Exhibit "1". This amount does not include attorneys' fees and court costs incurred to date. 10. The total payoff of the Note and Mortgage due and owing by defendant to Northwest Savings Bank is $45,833.00, calculated as follows: Principal Balance $41,325.35 Escrow Due 2,879.82 Interest Due to 01/31/05 4,682.68 Late Charges Due to 01/31/05 _ 264.62 $4 157. 7 See, Payoff Statement attached hereto as Exhibit "21'. This amount does not include attorneys' fees and court costs incurred to date. Braden R. Jones, Northwest Savin Sworn to and subscribed before me this 711, day of February, 2005. r Notary Public COMMONWEALTH OF_PENNSYLVANIA Notanal Seal Card A Danielson, Notary PubNc City Of Warren. Warren County My Cpr>niission Expires Aug. 15, 2008 Member, Pennsyleaga Association Of Notaries TOTAL P.02 Carol Danielson 218 Liberty St, PO Box 337 Phone # 814-728-7406 OR 1-877-300-5779 FAX # 814-728-7740 FAX TRANSMISSION SHEET TO: KURT SUNDBERG FAX NUMBER: 814-456-1112 DATE: 01/10/05 NUMBER OF PAGES INCLUDING COVER: 05 RE: ULSH: WAYNE ACCOUNT # 69.81-00270030 DEAR KURT: FOLLOWING IS THE AMOUNT REQUIRED TO O THE LOAN THOROUGH JANUARY 31, 2005. THIS CALCULATION DOES NOT INCLUDE ANY UNPAID LEGAL FEES. P 69-81-00270030 10/03 - 01/04 04 PAYMENTS @ 5472.92 S1,891.98 02104 -01105 12 PAYMENTS (a) 5497.72 = S5,972.64 LATE FEES THROUGH 01/31/05 S 269.62 TOTAL DUE $ 8,133.94 PRINCIPAL DUE: S 736.36 INTEREST DUE: S 4,339.16 ESCROW DUE: S 2,785.80 LATE FEES DUE S 269.62 TOTAL: S 8,133.94 NW?ie IS AS FOLLOWS. 12/23/02 -MARSH SPAED£R LEGAL FEES S 500.50 02103/03 -CUNNINGHAM/CHERNICOFF LEGAL FEES 666.00 03/27/03 - COUNTY & MUNICIPAL PROPERTY TAX TAXES 161.81 07118/03 - SCHOOL TAXES TAXES S 770.20 08/29/03 - DONEGAL H/O INS. 381.00 06/07/04 - COUNTY & MUNICIPAL TAX TAXES S 179.23 09/13/04 - PURCELL, LRUG, HALLER LEGAL FEES S 500.00 09129104 - SCHOOL TAX TAXES 849.69 11/23/04 - KEMPER H/O INS. $ 376.00 12117/04 - MARSH SPAEDER LEGAL FEES 155.50 12/02 POSITVE ESCROW AMOUNT: $ 328.00 ESCROW CREDIT TOTAL FROM 12/03 TO CURRENT S 1,332.11 TOTAL DISBURSEMENTS FROM ABOVE $ 4,539.93 NEGATIVE ESCROW TOTAL FROM PAYOFF S;Z wb IF YOU HAVE ANY QUESTIONS OR REQUIRE ADDITIONAL INFORMATTON, PLEASE FEEL FREE TO CONTACT ME. CAROL DANMLSON 1 Y Note number: Short name: F3=Exit Loan System 698100270030 Participation sold: 100.0000 ULSH WAYNE L Payoff year base: ACT/360 Payoff date: Net payoff: Principal amount: Interest due: Late fees due: Unpaid insurance: Unpaid fees: Escrow balance: Payoff interest per day: Unapplied funds: Total of other rebates: Payoff good thru: 1-31-04 *---------------------Payoff Data----------- F12=Cancel 5A-715--1--- QPADEV000; 1-31-04 45,833.00 41,325.35 1,374.07 253.76 .00 .00 2,879.82- 9.039920 .00 .00 I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NORTHWEST SAVINGS BANK, successor-in-interest to FIRST UNITED MORTGAGE SERVICES, INC., Plaintiff V. WAYNE L. ULSH, Defendant NO. 2004 - 5660 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe within Motion for Summary Judgment was mailed by first c gss mail, postage prepaid, and certified mail, return receipt requested, or hand delivered this 'N?: day of 2005, to all counsel of record and unrepresented parties in the above-captioned matter. Wayne L. Ulsh 36 East Main Street Plainfield, PA 17081 MARSH SPAEDER BAUR SPAEDER & SCHAAF, i,Lp By Kup(L. Sund tg Suite 300, 3AO State Street Erie, Pennsylvania 16507 (814) 456-5301 i n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NORTHWEST SAVINGS BANK, successor-in-interest to FIRST UNITED MORTGAGE SERVICES, INC., Plaintiff V. W AYNE L. ULSH, Defendant NO. 2004 - 5660 Civil Division PRAECIPE FOR ENTRY OF APPEARANCE FILED ON BEHALF OF: Northwest Savings Bank COUNSEL OF RECORD FOR THIS PARTY Kurt L. Sundberg, Esq. Supreme Court I.D. #56844 Andrew M. Schmidt, Esq. Supreme Court I.D. #89448 Marsh Spaeder Baur Spaeder & Schaaf, LLP Suite 300, 300 State Street Erie, Pennsylvania 16507 (814) 456-5301 LOCAL COUNSEL OF RECORD Ronald L. Finck, Esq. Supreme Court I.D. 89985 Mette Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NORTHWEST SAVINGS BANK, NO. 2004 - 5660 successor-in-interest to FIRST UNITED MORTGAGE SERVICES, INC., Plaintiff V. WAYNE L. ULSH, Defendant PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Plaintiff, Northwest Savings Bank, in the above- referenced matter. Respectfully submitted, METTE, EVANS & WOODSIDE BY: Ronald L. Finck, Esquire Sup. Ct. I.D. #89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Plaintiff Northwest Savings Bank DATE: February 28, 2005 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Kurt L. Sundberg, Esquire Andrew M. Schmidt, Esquire Marsh Spaeder Baur Spaeder & Schaaf, LLP Suite 300, 300 State Street Erie, PA 16507 Wayne L. Ulsh 36 East Main Street Plainfield, PA 17081 METTE, EVANS & WOODSIDE BY: guv..C' ' - oz • P L Ronald L. Finck, Esquire Sup. Ct. I.D. #89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Plaintiff Northwest Savings Bank DATE: February 28, 2005 418001v1 c> ,,,? -- <??. . ???? . .?, r" =-': ? --v CS'; 1 ??_' hJ l._1 P". J: ? -r. L ?? :, 1'P'. " i_. (.> wr,? f'_) -, P: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NORTHWEST SAVINGS BANK, NO. 2004 - 5660 successor-in-interest to FIRST UNITED MORTGAGE SERVICES, INC., Civil Division Plaintiff V. WAYNE L. ULSH, Defendant Type of Pleading: Praecipe For Argument List Filed on behalf of. Plaintiff, Northwest Savings Bank COUNSEL OF RECORD FOR THIS PARTY: Kurt L. Sundberg, Esq. Supreme Court I.D. No. 56844 Andrew M. Schmidt, Esq. Supreme Court I.D. No. 89448 Marsh Spaeder Baur Spaeder & Schaaf, LAP Suite 300, 300 State Street Erie, Pennsylvania 16507 (814) 456-5301 LOCAL COUNSEL OF RECORD Ronald L. Finck, Esq. Supreme Court I.D. 89985 Mette Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NORTHWEST SAVINGS BANK, successor-in-interest to FIRST UNITED MORTGAGE SERVICES, INC., Plaintiff V. WAYNE L. ULSH, Defendant NO. 2004 - 5660 PRAECIPE FOR ARGUMENT LIST TO THE PROTHONOTARY: Kindly place the matter of plaintiff, Northwest Savings Bank successor-in-interest to First United Mortgage Services, Inc., by their attorneys, Marsh Spaeder Baur Spaeder & Schaaf, LLP, and Mette Evans & Woodside on the upcoming Argument List. The names and addresses of all counsel of record are as follows: Kurt L. Sundberg, Esq. Andrew M. Schmidt, Esq. Attorneys for Plaintiff, Northwest Savings Bank 300 State Street, Suite 300 Erie, PA 16507 Ronald L. Finek, Esq. Mette Evans & Woodside Local Counsel for Plaintiff, Northwest Savings Bank 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Wayne L. Ulsh, pro se 36 East Main Street Plainfield, PA 17081 This case has not received judicial attention. Respectfully submitted, MARSH SPAEDER BAUR SPAEDER & SCHAAF, LLP k^ By Kurt L. S(mdberg Attorneys for Plaintiff INTHE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NORTHWEST SAVINGS BANK, successor-in-interest to FIRST UNITED MORTGAGE SERVICES, INC., Plaintiff V. WAYNE L. ULSH, Defendant . NO. 2004 - 5660 CERTIFICATE OF SERVICE 1 hereby certify that a true and correct copy of the within Praecipe for Argument List was mailed by first class mail, postage prepaid, or hand delivered this day of j^G , 2005, to all counsel of record and unrepresented parties in the above- captioned matter. Wayne L. Ulsh, pro se 36 East Main Street Plainfield, PA 17081 MARSH SPAEDER BAUR SPAEDER & SCHAAF, LLP By -- -- o Kurt L. Sun4bberg Attorneys for Plaintiff Suite 300, 300 State Street Erie, Pennsylvania 16507 (814) 456-5301 o-= ??? j N jt-?, ?? t N `3 ^, i'i'i: ` (. x? .?. ? r, -:5 PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CUSTOM PATIO ROOMS : IN THE COURT OF COMMON PLEAS OF CENTRAL PA, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW V. NO. 04-5530 MARY THOMPSON, Defendant JURY TRIAL DEMANDED Please list Plaintiff's Custom Patio Rooms of Central PA, Inc., Preliminary Objections to the Amended New Matter and Counterclaim filed by Defendant, Mary Thompson, for Argument Court of the next appropriate Argument Court date 2. John DeLorenzo, Esq. Linda C. Taliaferro, Esq. Goldberg Katzman, P.C. 220 Verbeke Street 320 Market Street Harrisburg, PA 17102 Harrisburg, PA 17101 Counsel for Defendant Counsel for Plaintiff 4. I will notify all parties in writing with two days that this case has been listed for argument. Argument Court Date: j,. 9JDrenzo, Esq. Attorney for Plaintiff 119183.1 "b CUSTOM PATIO ROOMS OF CENTRAL PA, INC., Plaintiff VS. MARY THOMPSON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-5530 CIVIL IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO THE AMENDED NEW MATTER AND COUNTERCLAIM ORDER AND NOW, this L S" day of April, 2005, the preliminary objections of the plaintiff to the counterclaim of the defendant seeking relief under the Pennsylvania Unfair Trade Practices and Consumer Protection Law are SUSTAINED. The remaining preliminary objections are DISMISSED. 1 Yohn DeLorenzo, Esquire For the Plaintiff Linda C. Taliaferro, Esquire For the Defendant Am t C> BY THE COURT, OF THE 2005 APR 25 Psi 14.00 CUSTOM PATIO ROOMS OF CENTRAL PA, INC., Plaintiff VS. MARY THOMPSON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-5530 CIVIL IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO THE AMENDED NEW MATTER AND COUNTERCLAIM OPINION AND ORDER On or about September 4, 2002, the plaintiff, Custom Patio Rooms of Central Pa, Inc., ("Custom Patio"), entered into a contract with the defendant, Mary Thompson, whereby Custom Patio agreed to build a patio room unto Thompson's residence. Thompson also hired an independent contractor to perform concrete work that was a necessary prerequisite for the work that Custom Patio had agreed to perform. Custom Patio completed the construction of the patio room on June 17, 2003. When payment was not forthcoming from Thompson, Custom Patio filed an action with a district justice. Following a judgment in favor of the plaintiff, Thompson appealed the district justice's order. On November 18, 2004, Custom Patio filed a complaint seeking payment under the contract. Thompson filed an answer and new matter and counterclaim on December 13, 2004. Following the filing of preliminary objections by the plaintiff, Thompson filed an amended answer with amended new matter and counterclaim. Custom Patio has filed preliminary objections to Thompson's amended new matter and counterclaim. It is these preliminary objections which are currently before the court. Custom Patio first alleges that defendant Thompson has failed to state a claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL") by failing to NO. 04-5530 CIVIL plead common law fraud. The UTPCPL includes "[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding" under the definition of "[u]nfair methods of competition" and "unfair or deceptive acts or practices." 73 Pa.C.S.A. 201-2(4)(xxi). In 1996, the Pennsylvania legislature broadened the language of the catchall provision to include both fraudulent and deceptive conduct. Despite this revision, the Pennsylvania Superior Court has continued to require proof of common law fraud under the catchall provision. See Booze v. Allstate, Ins. Co., 750 A.2d 877 (Pa.Super. 2000). The Commonwealth Court, on the other hand, has acknowledged the legislature's revision. In Com. v. Percudani, 825 A.2d 743 (Pa.Commw. 2003), the court found the addition of the phrase "deceptive conduct" to be of significance. The Commonwealth Court concluded that proof of common law fraud was not necessary to make out a claim under the UTPCPL. Regardless of the standard to be applied, we are satisfied that the defendant has failed to plead valid claims under the Consumer Protection Law. In her counterclaim, defendant Thompson alleged that plaintiff Custom Patio violated six subsections of the UTPCPL: (v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have; (vii) Representing 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; 2 NO. 04-5530 CIVIL (ix) Advertising goods or services with intent not to sell them as advertised; (xiv) Failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made; (xvi) Making 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; (xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. 73 Pa.C.S.A. 201-2(4)(v), (vii), (ix), (xiv), (xvi), (xxi) (2005), Plaintiff Custom Patio requests that the counterclaim should be dismissed because the counterclaim lacks the requisite specificity. Pa.R.C.P. 1019(a) (2005). "Pennsylvania is a fact-pleading jurisdiction. A complaint must therefore not only give the defendant notice of what the plaintiffs' claim is and the grounds upon which it rests, but it must also formulate the issues by summarizing those facts essential to support the claim." Youndt v. First Nat'l Bank of Port, 868 A.2d 539, 544 (Pa. Super. 2005) (citing Sevin v_ Kelshaw, 611 A.2d 1232, 1235 (1992)). Pleadings must state the claim with such sufficiency that the defendant can adequately prepare a defense. Id at 545 (citation omitted). The pleadings must also be sufficient enough to demonstrate to the court that the claims are "not merely subterfuge." Id. A. Defendant Thompson has failed to sufficiently plead that Custom Patio violated Section 201-2(4)(v), (vii), (ix) of the UTPCPL. NO. 04-5530 CIVIL At the most, defendant Thompson has referred to two advertisements and a letter from Custom Patio. One advertisement states, "When attention to detail counts, you can count on Custom Patio Rooms." The other states, "We will not be satisfied until you are satisfied your room was manufactured and installed beyond your expectations." The letter stated that Custom Patio's work "will bring her many years of enjoyment as well as adding value to her home." These statements are mere puffery and do not rise to the level required of Section 201- 2(4)(v)(vii) or (ix). "Puffery is `an exaggeration or overstatement expressed in broad, vague and commendatory language."' Zaborowski v. Hospitality Care Center of Hermitage, Inc., 60 Pa. D. & CAth 474, 486 (Mercer County C.C.P. 2002) (citing Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 945 (3d Cir. 1993)). According to Prosser and Keeton, puffery is "offered and understood as an expression of the seller's opinion only, which is to be discounted as such by the buyer, and on which no reasonable [person] would rely." Id. at 486 (citing W. Page Keeton, Prosser and Keeton on the Law of Torts, Section 109 at 757 (5th ed. 1984)). A buyer cannot rely upon a seller's favorable opinion when that opinion is general. Id. (citing Restatement (Second) of Torts Section 542 curt. e (1978)). Rather, a buyer can only rely on a seller's statements about a product or service when those statements are fact specific. Id (citing Restatement (Second) of Torts Section 542 cmt. e (1978)). Here, Custom Patio's claims were not fact specific, but vague and general. B. Defendant Thompson has failed to sufficiently plead that Custom Patio violated Sections 201-2(4)(xiv) and (xvi) of the UTPCPL. Sections 201-2(4)(xiv) and (xvi) both reference written terms. 73 Pa.C.S.A. Section 201- 2(4)(xiv), (xvi). Subsection (xiv) refers to written guarantees and warranties, whereas subsection (xvi) refers to a description of the standard of performance as recorded in writing. Id. Outside of NO. 04-5530 CIVIL a mere recognition that a contract did exist, Defendant Thompson failed to plead with even minimal specificity what written terms Custom Patio failed to satisfy. C. Defendant Thompson has failed to sufficiently plead that Custom Patio violated Section 201-2(4)(xxi) of the UTPCPL. Defendant Thompson's final UTPCPL claim is that Custom Patio engaged in "fraudulent or deceptive conduct." See 73 Pa.C.S.A. Section 2-102(4)(xxi). While this is commonly referred to as the "catchall provision" of the UTPCPL, it is not broad enough to allow defendant Thompson to proceed with her UTPCPL claim. Defendant Thompson simply failed to plead with any specificity what actions by Custom Patio constituted "fraudulent or deceptive conduct." D. Defendant Thompson has not violated Pa.R.C.P. 1028(5) nor has Defendant Thompson failed to join a necessary party. Finally, plaintiff Custom Patio alleges that defendant Thompson violated Pa.R.C.P. 1028(5). This makes no sense inasmuch as Pa.R.C.P. 1028(5) is a permissive rule allowing parties to file preliminary objections when there has been a failure to join a necessary party. Pa.R.C.P. 1028(5). Plaintiff Custom Patio appears to be saying that the independent contractor who did the concrete work must be joined as a necessary party. The independent contractor is neither an indispensable party nor a necessary party. In Pennsylvania, four inquiries are relevant when determining whether an absent party is indispensable: 1) Do absent parties have a right or interest related to the claim? 2) If so, what is the nature of the right or interest? 3) Is that right or interest essential to the merits of the issue? 4) Can justice be afforded without violating due process rights of absent parties? NO. 04-5530 CIVIL Polydyne, Inc. v. City of Phila., 795 A.2d 495, 496 n.2 (Pa.Commw. 2002) (citing Montella v. Berkheimer Assoc., 690 A.2d 802, 803 (Pa.Commw. 1997)). The independent contractor fails the first criterion because the independent contractor has no "right or interest" in defendant Thompson's counterclaim. The second and third criteria are therefore moot. As for the fourth criterion, the outcome of this case cannot affect the due process rights of the independent contractor. Moreover, the independent contractor is not a necessary party. "[A] necessary party is one whose presence, while not indispensable, is essential if the court is to resolve completely a controversy and to render complete relief." Pa. Human Relations Comm'n v. School Dist. of Phila, 651 A.2d 177, 184 (Pa.Commw. 1993) (citing York-Adams County Constables Assoc. v. Court of Common Pleas of York County, 474 A.2d 79 (Pa.Commw. 1984)). We fail to see how the joinder of the concrete contractor is material to a resolution of the dispute between the plaintiff and the defendant. ORDER AND NOW, this ZS' day of April, 2005, the preliminary objections of the plaintiff to the counterclaim of the defendant seeking relief under the Pennsylvania Unfair Trade Practices and Consumer Protection Law are SUSTAINED. The remaining preliminary objections are DISMISSED. 6 BY THE COURT, NO. 04-5530 CIVIL John DeLorenzo, Esquire For the Plaintiff Linda C. Taliaferro, Esquire For the Defendant Am CUSTOM PATIO ROOMS OF CENTRAL PA, INC. Plaintiff VS MARY THOMPSON Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 04-5530 JURY TRIAL DEMANDED Praecipe for Entry of Appearance TO THE PROTHONOTARY: Please enter my appearance on behalf of the Defendant, Mary Thompson, in this matter. I hereby certify that this change is not intended to, nor will, delay this proceeding to the best of my knowledge, information, and belief. Papers may be served at the address set forth below. L11AA I & ? - Mic iael A. Grum, sq. PA ID 78625 Anderson, Gulotta & Hicks, P.C. 121 State Street Harrisburg, PA 17101 (717) 541-1194 FAX (717) 635-7131 DATE: 3 OS SUBSTITUTION OF COUNSEL WITHOUT LEAVE OF COURT (Rule 1012(b)(2)(6)) Praecipe for Withdrawal of Appearance TO THE PROTHONOTARY: Please withdraw my appearance on behalf of the Defendant, Mary Thompson, in this matter. 1 L nda C. Taliaferro, Esq. PA ID 26504 220 Verbeke Street Harrisburg, PA 17102 (717) 238-7670 DATE: 0 `J CUSTOM PATIO ROOMS : IN THE COURT OF COMMON PLEAS OF CENTRAL PA, INC. : OF CUMBERLAND COUNTY, Plaintiff : PENNSYLVANIA VS CIVIL ACTION-LAW MARY THOMPSON NO. 04-5530 Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I do hereby certify that I served a true and correct copy of the within Praecipe on all parties in this action this `-irh day of?) 6 L by first class U.S. mail, postage prepaid, to the Plaintiff's attorney of record at the following address: John DeLorenzo, Esq. 320 Market Street, Strawberry Square PO Box 1268 Harrisburg, PA 17108-1268 DATE: Jul (;ju_ m---- Michael A. n, Esq. r- i c O iS -S1 1?- r. ? Michael A. Grum, Esq. Anderson, Gulotta & Hicks, P.C. 121 State Street Harrisburg, PA 17101 717-541-1194 Attorney for Defendant CUSTOM PATIO ROOMS OF : IN THE COURT OF COMMON PLEAS CENTRAL PA, INC. : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION- LAW NO. 04-5530 MARY THOMPSON, Defendant : JURY TRIAL DEMANDED NOTICE TO PLEAD 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 New Matter and Counterclaim 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 Counterclaim or for any other claims or relief requested by the Counter-Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFTORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Michael A. Gruin, Esq. Anderson, Gulotta & Hicks, P.C. 121 State Street Harrisburg, PA 17101 717-541-1194 Attorney for Defendant CUSTOM PATIO ROOMS OF CENTRAL PA, INC. Plaintiff MARY THOMPSON, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ACTION - LAW NO. 04-5530 JURY TRIAL DEMANDED DEFENDANT'S AMENDED ANSWER WITH AMENDED NEW MATTER AND COUNTERCLAIM Admitted 2. Admitted. 3. Admitted in part. Denied it part. It is admitted that the Defendant and Custom Patio entered into a sates contract. It is denied that Exhibit "A" of Plaintiff's Complaint is a true and correct copy of the sales contract and addendum. The document attached to Plaintiffs Complaint does not include all of the written terms of the sales contract, including the back page of the contract. By way of further answer, Defendant avers that Defendant to her detriment and in reliance on the skill, knowledge, expertise and experience of Plaintiff and accepted Plaintiffs recommendation for the design and the location of the patio room when entering into the contract. 4. Admitted in part. Denied in part. It is admitted there was an Agreement between Plaintiff and Defendant. By way of further response, under the Contract in question Custom Patio would design the Patio Room in addition to installing it. 5. Denied. Defendant denies that Plaintiff performed all services and provided all goods in a matter that satisfied fully all of its contractual obligations. By way of further answer, Defendant avers that the "customization" of the product and services contracted never occurred, since the Defendant's have refused to complete the patio room to suit Defendant. Therefore Defendant avers that it is unfinished and incomplete. Further, Defendant avers that to her detriment, the patio room's functionality is substantially impaired and its use to Defendant is diminished as to the fundamental purposes for such a room, namely habitability and keeping out the elements. 6. Admitted in part. Denied in part. It is admitted that the assembly of the walls, doors and ceiling and some other components occurred on or about June 17, 2003. However it is denied that on said date the Plaintiff fulfilled all obligations under the contract in the full and satisfactory manner because the resultant product is ineffective and as to its functionality. Denied. It is denied that Defendant has failed to adequately pay, pursuant to the Agreement, for any goods and services rendered by Plaintiff. By way of further answer, by December 2003, Defendant had, in fact, in a timely manner and with good faith, paid to Plaintiff over $12,000.00 but has not received from Plaintiff the value for which she has paid. Defendant denies receiving any benefit as a result of Plaintiffs performance of its obligations and duties under the Agreement, but Defendant to her detriment has paid over $17,000.00 and is continuously experiencing the ongoing and continuous defects and non-conformities that impair the functionality of the patio as it currently exists. 8. Denied. By way of further answer, Defendant denies being indebted to Plaintiff without Plaintiffs full performance. Furthermore, Defendant avers that Plaintiffs full performance includes fulfilling the duty to render professional quality work and workmanship that results in a product that is sufficient for its intended use. Plaintiffs failure to perform in a manner that satisfies that duty is a material breach of the contract and such non-performance goes to the essence of the basis of the contractual relationship. 9. Admitted. 10. Denied. 11. Admitted in part. Denied in Part. It is admitted that Custom Patio filed a District Justice Action. It is denied that Plaintiff's demands were met with no action. By way of further answer, Defendant responded to Plaintiff's demands with offers of payment and requests for Plaintiff to fulfill its obligation and repair or correct the defects resulting from the design and assembly of the patio room. 12. Admitted. 13. Admitted. 14. Admitted in part. Denied in part. It is admitted that Defendant filed an Appeal from the District Justice decision. It is denied that Defendant presented no justifiable defense. 15. No answer required. 16. Denied. COUNTI BREACH OF CONTRACT 17. No further response is deemed necessary of paragraph 17 of Plaintiffs Complaint inasmuch as the same does not contain any factual allegations. 18. Denied. The allegations contained in paragraph 18 of Plaintiffs Complaint are denied, since the allegations are legal conclusions to which no response of pleading is required. 19. Denied. 20. Denied. 21. Denied. The Contract speaks for itself. 22. Admitted. 23. Denied. After reasonable investigation, Defendant is unable to admit or deny the averments in this paragraph because the information is solely within the possession of Plaintiff. 24. Denied. After reasonable investigation, Defendant is unable to admit or deny the averments in this paragraph because the information is solely within the possession of Plaintiff. 25. Denied. 26. Denied. 27. Denied. 28. Denied. COUNT II Quantum Meruit 29. No further response is deemed necessary to paragraph 29 of Plaintiffs Complaint inasmuch as the same does not contain any factual allegations. 30. Denied. Defendant avers that to her detriment he she does not have an adequately functioning patio room that she has to suffer the cost of restoration as well. Such restoration is estimated to be greater than the monies claimed by Plaintiff. Defendant further avers that Plaintiffs performance resulted in numerous visible defective and non-conforming conditions, including but not limited to: a roof that slopes too low for the-existing residence and known degree of house pitch and relationship to the surrounding property grade and slope; inadequate size, number and placement of the roof down spout resulting in ineffective roof drainage that is in a sheet flow of water rather than water efficiently channeled to flow into an adequately designed and located gutter system. The resultant un-channeled water flows indiscriminately over windows and doors. Defendant avers that there are several more defective conditions whose cause and cure is only clearly ascertainable with the assistance of experts and at significant additional cost to Defendant. 31. Denied. Defendant reiterates the answer at Paragraph 30 and avers that Plaintiff as builder-vendor has conferred no benefit to Defendant home owner equal to the value Defendant has conferred on Plaintiff. Further, that Defendant relied on and was guided by the expertise, judgment and experience of the Plaintiff. The Plaintiff has been more than adequately compensated in light of failures occasioned by the flawed design and assembly of the material and services provided to date. 32. Denied. Defendant avers that Plaintiff, as the builder-vendor solely responsible for and in control of the determination of the site selection, and overall design layout and dimensions of the patio room at the current failed to in its duty to perform with the degree of skill and care necessary to fulfill its contractual obligation. Defendant is forced to endure the additional inconvenience and incur the expense of corrective repairs as a direct result of Plaintiffs non-performance. The estimated cost of the repair and restoration to be paid by Defendant greater than the amount of money claimed by Plaintiff. 33. Denied. Defendant avers that Plaintiff is not entitled to quantum merit as Plaintiffs non-performance results in no benefits but instead creates additional expense for Defendant to correct the defects. WHEREFORE, with respect to Plaintiffs Complaint for Breach of Contract Claim and Quantum Meruit, Defendant requests: that Plaintiff s Complaint be dismissed and that judgment be entered in favor of Defendant in the amount of $17,588.00, and that Defendant be awarded costs and granted such other and further relief as the Court may deem just and proper. AMENDED NEW MATTER AND COUNTERCLAIM Paragraphs 1 through 33 are incorporated herein as if set forth in their entirety. 2. Mary Thompson (hereinafter referred to as "Counter-Plaintiff) is an adult individual who resides at 1127 South Harrisburg Street, Oberlin, PA 171 13. 3. Custom Patio Rooms of Central Pennsylvania (hereinafter referred to as "Custom Patio" or "Custom Patio") is a Corporation with a principal place of business at 4609 Gettysburg Road, Mechanicsburg, PA 17055. 4. At all times relevant hereto, Custom Patio is a corporation engaged in trade or commerce as defined in the Unfair Trade Practices and Consumer Protection Law 73 P. S. § 201.2(4)et seq. Counter-Plaintiff entered into the transaction with Custom Patio primarily for personal, family or household purposes. 6. On or about September of 2002, Counter-Plaintiff, a retired senior citizen met with Custom Patio's sales employee. Mr. Alec Staley, for the purpose of having Counter- Defendant design and construct a patio room for her use at her house. Counter- Plaintiff selected Counter- Defendant in reliance on Custom Patio's representations which were made in the course of his employment and for which he had apparent authority to make. Counter-Plaintiff told Mr. Staley that her primary condition was that she wanted no water leakage problems whatsoever. Mr. Staley assured her that he understood her concern and that Custom Patio's products do not have leakage problems and that there would be no water leakage problems. 8. On or about September 4, 2002, Mr. Staley, conducted a "free home design consultation" which was performed to examine Counter-Plaintiff's home and surrounding property and at that time, Mr. Staley observed the property and its natural conditions including the grade and elevation changes apparent. 9. On September 4, 2002, at the "free home design consultation", the Counter- Plaintiff and Custom Patio executed a Sales Agreement at the house. 10. The Counter-Plaintiff made it clear that she was reliant on the skill, judgment and expertise of Custom Patio as expressed by Mr. Staley and the marketing advertisements and as a result, Counter-Plaintiff executed the Sales Agreement. Custom Patio's provided verbal assurances which conformed to, supplemented and supported Custom Patio's marketing and Advertisement assurances that Counter-Plaintiff would be satisfied with her Patio. 11. Counter-Plaintiff received a Letter from Counter -Defendant that congratulated her on her decision to purchase their product. Said letter assured her that her confidence in Custom Patio Rooms will bring her many years of enjoyment as well as adding value to her home". 12. Custom Patio did not disclose nor acknowledge to Custom Patio at any time before or after signing the Sales Agreement of the existence of any writings or documents which would contradict his assurances or any assurances provided Counter- Plaintiff by Custom Patio, to the detriment of Counter-Plaintiff. 11 After the Sales Agreement was executed in September, 2002, Custom Patio recommended a location for the patio room in Counter-Plaintiff's yard based on their inspection of the property. 14. After Custom Patio recommended the initial site for the installation of the patio room, Custom Patio submitted specifications to its manufacturer based on the selected site, and proceeded to order the major patio room components, including the wall panels, windows, roof, doors and attendant features necessary for their installation. 15. Upon filing an application for a building permit with the local municipality, it was determined that the site selected for the installation of the Patio was not allowed as it was in violation of a local township ordinance which prohibits any building within a specified distance from the homeowner's septic system. 16. As a result of the township's denial of a building permit for the initially chosen location, the Custom Patio selected another site on the Counter-Plaintiff's property for the installation of the patio room. 17. The Counter-Plaintiff, in reliance on Custom Patio's expertise, accepted to her detriment the new second site for the patio room. 18. Custom Patio made all the design decisions concerning the dimensions of the patio room and the specifications of the components of the patio room. Counter- Plaintiff was not in a position to provide any input, nor did she. Counter-Plaintiff totally relied on the expertise, skill and judgment of Custom Patio that the design specifications would result in a room fit for the purpose intended and that the patio room would be habitable and suitable for use. 19. The second site selected by Custom Patio for the installation of the patio room resulted in a completely different configuration of the patio room due to differences in the grade and dimensions of the site selected. 20. Counter-Plaintiff was told and believes that Custom Patio failed to re- order and or resize any of the components despite that fact that the dimensions of the patio room were changed after the switch to the second site. 21. Upon information and belief, Custom Patio did not contact the manufacturer to inform the manufacturer that the specifications for the components of the patio room had changed, and Custom Patio did not re-order materials and components that were appropriate for the new site's dimensions as to height, depth, roofing, siding windows and doors, ground slope and grade and drainage requirements. 22. Custom Patio caused the Counter-Plaintiff to execute an Addendum to the Sales Agreement for the increased costs attendant to the relocated Patio and adjusted dimensions and specifications for patio room. 23. Custom Patio proceeded with constructing the patio room using the design created for the second site, but used the component parts that were manufactured for the first site. 24. Custom Patio failed to disclose to Counter-Plaintiff the potential consequences of proceeding to construct the Patio using the original parts, walls, roof, windows, doors and attendant parts for such components that Custom Patio had previously ordered for the dimensions planned for the first site for the room 25. Custom Patio exercised complete control over the location, design, manufacture, assembly and installation and the standard of care required to assemble the final product. Custom Patio insisted that their specifications as to all aspects of the room's dimensions and component be adhered to, especially as to the masonry foundation work. Neither Counter-plaintiff nor the masonry contractor (Chris Kenny) had any input as to the design or dimensions of the patio. 26. Counter-Plaintiff relied on the expertise of Custom Patio who recommended and helped secure the Counter- Plaintiffs acquiescence in the selection of Mr. Chris Kenny to provide the necessary masonry foundation for the second room site. This was in accordance with the usual practices of Custom Patio and in also reflective of the usual course of dealing between Mr. Chris Kenny and Custom Patio. 27. Mr. Kenny's relied completely on Custom Patio's design specifications for the patio room to perform his masonry work. 28. Mr. Kenny was under the direct supervision of Custom Patio during the performance of the masonry work in accordance with the Custom Patio's directions and control the project. 29. Custom Patio insisted that Mr. Kenny totally comply with Custom Patio's design specifications for the Patio. 30. Mr. Kenny regularly is retained by customers of Custom Patio at the recommendation of Custom Patios. 31. As per usual practice with Mr. Kenny and Custom Patio, all directions related to the masonry to be performed were provided to Mr. Kenny directly from Custom Patio and he received no direction nor control whatsoever from Counter-Plaintiff. 32. Mr. Kenny informed Custom Patio's production manager that the specifications for the patio's floor foundation, knee wall, footers, and other components would not be adequate for the site selected by Custom Patio. 33. In June of 2003, after the assembly of the walls, roofing, windows and doors and necessary interior work, the Counter-Plaintiff experienced problems such as water leakage to the walls, doors and windows, mold growth, doors and windows misfitting, the unfinished wooden beam being water stained from the roof water, flaking caulking from windows and doors, and roof drainage pipes not efficiently functioning due to ineffective location. 34. Custom Patio's failure to design and assemble the patio room so as to be habitable is to the detriment of the Counter-Plaintiff and Custom Patio has continually refused to correct the design flaws despite Counter-Plaintiff s repeated requests for repair or restoration. 35. Counter-Plaintiff has been advised that the estimated cost to repair the aforementioned damages may well be equal to or in excess of the sale price that Counter- Plaintiff has already paid, which is over $17,000. COUNTI BREACH OF CONTRACTBREACH OF WARRANTIES 36. Paragraphs 1 through 35 are incorporated herein as by reference as if set forth in full. 37. Under Pennsylvania Law, contracts for the construction of dwellings include implied warranties of workmanship and habitability. Furthermore, under Pennsylvania Law, contracts for dwelling design services include an implied warranty that the design produced will result in a structure that is fit for its intended purpose. 38. Pursuant to the Sales Agreement and the implied warranties incorporated therein, Custom Patio was obligated to produce a design that would result in a patio room that was fit for its intended purpose. 39. Pursuant to the Sales Agreement and the implied warranties incorporated therein, Custom Patio was obligated construct a patio room using minimum standards of workmanship. 40. Pursuant to the Sales Agreement and the implied warranties incorporated therein, Custom Patio was obligated to construct a patio room that was habitable by the purchaser. 41. Custom Patio breached the implied warranties of workmanship, habitability, and fitness for intended purpose in designing and constructing the patio room in question, as follows: a. the slope of patio room roof is incorrect in relation to pitch of the roof of the-existing residence and the relationship to the surrounding property grade and b. the size, number and placement of the roof down-spouts are inadequate, resulting in ineffective roof drainage. As a result, sheets of water flow indiscriminately over windows and doors, rather than having water efficiently channeled to flow into an adequately designed and located gutter system. C. the patio room was not properly designed to account for the grade and water flow of the property in the second location chosen by Custom Patio. d. the aforementioned drainage defects cause water to flow into the patio room, causing mold, flaking of paint and caulking, and lingering puddles of water inside the patio room during and after rainstorms,. e. the windows and doors are not fitted properly, making it impossible to close them tightly. As a result moisture and insects regularly enter the patio room. 42. As a result of the substandard design and workmanship exhibited by Custom Patio, Counter-Plaintiff is unable to occupy the patio room on many occasions due to the water problems, and is unable to use the patio room for its intended purpose. 43. Counter-Plaintiff has been advised, and therefore avers, that significant renovations will need to be performed to enable the patio room to function as it should. 44. Counter-Plaintiff has paid $17,588 for the design and construction of her patio room, but the design and construction services provided by Custom Patio did not conform to the implied warranties of workmanship, habitability, and fitness for intended purpose. 45. Custom Patio's substandard design and construction, and the damages suffered by the Plaintiff, place Custom Patio in breach of the Sales Agreement. 45. Despite repeated requests by the Counter-plaintiff to remedy the defective design and installation, Custom Patios continues to refuse to remedy the defects or refund the monies paid by Counter-Plaintiff. WHEREFORE, Counter-Plaintiff demands judgment in her favor and against Custom Patio in the amount of $17,588, plus interest and the costs of the action, and any other relief that the Honorable Court deems just and necessary. COUNT II PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW (PA UTPCPL) 46. Paragraphs 1 through 45 are incorporated herein as by reference as if set forth in full. 47. At all times relevant hereto, Custom Patio was engaged in trade or commerce as defined in the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 P.S. § 201-2(3) and 73 P.S. 6. 201-2 (4) et seq. 48, As set forth above, the Counter-Plaintiff relied upon Custom Patio's representations and expertise in choosing the sites for the patio room, in choosing the design for the patio room, and for installing the patio room. Counter-Plaintiff has incurred substantial expense to have the patio room designed and installed, and as a result of the misrepresentations and substandard work performed by Custom Patio, Counter- Plaintiff has been unable to use the patio room as it was intended to be used. 49. Based on Custom Patio's misrepresentations, Counter-Plaintiff was induced to enter into a contract addendum to install the patio room in a new location. 50. Pursuant to Section 9.2 of the Consumer Protection Law, Counter- Plaintiff avers that Custom Patio's acts enumerated above violate the following subsections of the Unfair Trade Practices and Consumer Protection Law 73 P. S. § 201.2(4) et seq: (v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have; (vii) Representing 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; (xxii) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. 51. Custom Patio violated subsection (v) of the UTPCPL by representing that the patio room purchased by the Counter-Plaintiff would be adequately sealed to prevent water leakage into the room, when in reality Custom Patio knew that the patio room, as design and installed at the second location, would likely experience water seepage and drainage. Such representations were repeatedly made by Custom Patio sales representative Staley to the Counter- Plaintiff. 52. Custom Patio violated subsections (vii) and (xii) of the UTPCPL by representing that all work necessary to install the patio room would be performed by "certified" employees, not subcontractors, when in reality, Custom Patio knew that masonry subcontractors were always engaged to perform foundation work for their patio rooms. During the home inspection and execution of the sales agreement, Custom Patio did not reveal to the Counter-Plaintiff that a subcontractor would need to be retained to perform masonry work, nor was the expected cost of masonry work conveyed to the Counter-Plaintiff. Custom Patio's representations regarding "no subcontractors" appear in all of their advertising literature and on their website, and such representations were a prevalent part of their sales representative's presentation to Counter-Plaintiff. These representations were deceptive and created a misunderstanding on the part of the Counter-Plaintiff. 53. Custom Patio further violated subsections (v), (vii) and (xii) of the UTPCPL by failing to disclose that the patio component parts previously ordered would not properly fit to the second design and site chosen for the patio room. Custom Patio communicated to Counter-Plaintiff that the second site chosen for the patio would enable the patio room to be constructed without the need to re-order parts. This was blatantly false and deceptive, and was done for the purpose of allowing Custom Patio to use previously purchased parts so it would not have to purchase new parts with new specifications. Custom Patio represented that certain goods ( the component parts) were of a certain use, standard and quality (compatible with the second design and site) when the parts were known not to be as such. 54. The UTPCPL authorizes violators of the law to be liable to Plaintiffs for damages equal to an amount up to three times actual damages suffered by Plaintiffs, and also authorizes the Court to award attorney's fees and costs to the Plaintiffs under the law. 55. As set forth above, Counter-Plaintiff has incurred damages in the amount of $17,588, which represents the amount that Counter-Plaintiff has expended for her improperly functioning patio room. WHEREFORE, as result of Custom Patios' violations of the Consumer Protection Law as set forth above, Counter-Plaintiff has suffered a loss of money, and Counter-Plaintiff respectfully requests this Honorable Court grant judgment in favor of Counter-Plaintiff and against Custom Patio as follows: a) a judgment in the amount of three times the loss suffered by Counter-Plaintiff as proven at trial of this matter, which is at least $52,764.00; b) an award of attorney's fees and all costs of Counter-Plaintiff; and, c) such other relief the court deems just and proper. Respectfully submitted, 41kv? Michael A. un, Esq. PA. ID No. 78625 Anderson, Gulotta & Hicks, P.C. 121 State Street Harrisburg, PA 17101 (717) 541-1194 VERIFICATION I, Mary Thompson, hereby certify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unswom falsification to authorities, which provides that if I knowingly make false statements, I may be subject to criminal penalties. Dated: J'1- o j -? M Tho on CERTIFICATE OF SERVICE I do hereby certify that I served a true and correct copy of the within Amended Answer with Amended New Matter and Counterclaim on all parties in this action this day of , 1 A by first class U.S. mail, postage prepaid, to the Plaintiff's attorney of record at the following address: John DeLorenzo, Esq. 320 Market Street, Strawberry Square PO Box 1268 Harrisburg, PA 17108-1268 DATE: -'k44 ?? U5 Aw, Michael A. Groin, Esq. Michael A. Gruin, Esq. Anderson, Gulotta & Hicks, P.C. 121 State Street Harrisburg, PA 17101 717-541-1194 Attorney for Defendant CUSTOM PATIO ROOMS OF CENTRAL PA, INC. Plaintiff MARY THOMPSON, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 04-5530 JURY TRIAL DEMANDED NOTICE TO PLEAD 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 New Matter and Counterclaim 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 Counterclaim or for any other claims or relief requested by the Counter-Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFTIORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Michael A. Crruin, Esq. Anderson, Gulotta & Hicks, P.C. 121 State Street Harrisburg, PA 17101 717-541-1194 Attorney for Defendant CUSTOM PATIO ROOMS OF CENTRAL PA, INC. Plaintiff MARY THOMPSON, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ACTION - LAW NO. 04-5530 JURY TRIAL DEMANDED DEFENDANT'S SECOND AMENDED ANSWER WITH AMENDED NEW MATTER AND COUNTERCLAIM Admitted 2. Admitted. Admitted in part. Denied in part. It is admitted that the Defendant and Custom Patio entered into a sales contract. It is denied that Exhibit "A" of Plaintiff's Complaint is a true and correct copy of the sales contract and addendum. The document attached to Plaintiff's Complaint does not include all of the written terms of the sales contract, including the back page of the contract. By way of further answer, Defendant avers that Defendant to her detriment and in reliance on the skill, knowledge, expertise and experience of Plaintiff and accepted Plaintiffs recommendation for the design and the location of the patio room when entering into the contract. 4. Admitted in part. Denied in part. It is admitted there was an Agreement between Plaintiff and Defendant. By way of further response, under the Contract in question Custom Patio would design the Patio Room in addition to installing it. 5. Denied. Defendant denies that Plaintiff performed all services and provided all goods in a matter that satisfied fully all of its contractual obligations. By way of further answer, Defendant avers that the "customization" of the product and services contracted never occurred, since the Defendant's have refused to complete the patio room to suit Defendant. Therefore Defendant avers that it is unfinished and incomplete. Further, Defendant avers that to her detriment, the patio room's functionality is substantially impaired and its use to Defendant is diminished as to the fundamental purposes for such a room, namely habitability and keeping out the elements. b. Admitted in part. Denied in part. It is admitted that the assembly of the walls, doors and ceiling and some other components occurred on or about June 17, 2003. However it is denied that on said date the Plaintiff fulfilled all obligations under the contract in the full and satisfactory manner because the resultant product is ineffective and as to its functionality. 7. Denied. It is denied that Defendant has failed to adequately pay, pursuant to the Agreement, for any goods and services rendered by Plaintiff. By way of further answer, by December 2003, Defendant had, in fact, in a timely manner and with good faith, paid to Plaintiff over $12,000.00 but has not received from Plaintiff the value for which she has paid. Defendant denies receiving any benefit as a result of Plaintiffs performance of its obligations and duties under the Agreement, but Defendant to her detriment has paid over $17,000.00 and is continuously experiencing the ongoing and continuous defects and non-conformities that impair the functionality of the patio as it currently exists. 8. Denied. By way of further answer, Defendant denies being indebted to Plaintiff without Plaintiffs full performance. Furthermore, Defendant avers that Plaintiffs full performance includes fulfilling the duty to render professional quality work and worlananship that results in a product that is sufficient for its intended use. Plaintiff's failure to perform in a manner that satisfies that duty is a material breach of the contract and such non-performance goes to the essence of the basis of the contractual relationship. 9. Admitted. 10. Denied. 11. Admitted in part. Denied in Part. It is admitted that Custom Patio filed a District Justice Action. It is denied that Plaintiff's demands were met with no action. By way of further answer, Defendant responded to plaintiff s demands with offers of payment and requests for Plaintiff to fulfill its obligation and repair or correct the defects resulting from the design and assembly of the patio room. 12. Admitted. 13. Admitted. 14. Admitted in part. Denied in part. It is admitted that Defendant filed an Appeal from the District Justice decision. It is denied that Defendant presented no justifiable defense. 15. No answer required. 16. Denied. COUNTI BREACH OF CONTRACT 17. No further response is deemed necessary of paragraph 17 of Plaintiff s Complaint inasmuch as the same does not contain any factual allegations. 18. Denied. The allegations contained in paragraph 18 of Plaintiffs Complaint are denied, since the allegations are legal conclusions to which no response of pleading is required. 19. Denied. 20. Denied. 21. Denied. The Contract speaks for itself. 22. Admitted. 23. Denied. After reasonable investigation, Defendant is unable to admit or deny the averments in this paragraph because the information is solely within the possession of Plaintiff. 24. Denied. After reasonable investigation, Defendant is unable to admit or deny the averments in this paragraph because the information is solely within the possession of Plaintiff. 25. Denied. 26. Denied. 27. Denied. 28. Denied. COUNT II Quantum Meruit 29. No further response is deemed necessary to paragraph 29 of Plaintiff s Complaint inasmuch as the same does not contain any factual allegations. 30. Denied. Defendant avers that to her detriment he she does not have an adequately functioning patio room that she has to suffer the cost of restoration as well. Such restoration is estimated to be greater than the monies claimed by Plaintiff. Defendant further avers that Plaintiffs performance resulted in numerous visible defective and non-conforming conditions, including but not limited to: a roof that slopes too low for the-existing residence and known degree of house pitch and relationship to the surrounding property grade and slope; inadequate size, number and placement of the roof down spout resulting in ineffective roof drainage that is in a sheet flow of water rather than water efficiently channeled to flow into an adequately designed and located gutter system. The resultant un-channeled water flows indiscriminately over windows and doors. Defendant avers that there are several more defective conditions whose cause and cure is only clearly ascertainable with the assistance of experts and at significant additional cost to Defendant. 31. Denied. Defendant reiterates the answer at Paragraph 30 and avers that Plaintiff as builder-vendor has conferred no benefit to Defendant home owner equal to the value Defendant has conferred on Plaintiff. Further, that Defendant relied on and was guided by the expertise, judgment and experience of the Plaintiff. The Plaintiff has been more than adequately compensated in light of failures occasioned by the flawed design and assembly of the material and services provided to date. 32. Denied. Defendant avers that Plaintiff, as the builder-vendor solely responsible for and in control of the determination of the site selection, and overall design layout and dimensions of the patio room at the current failed to in its duty to perform with the degree of skill and care necessary to fulfill its contractual obligation. Defendant is forced to endure the additional inconvenience and incur the expense of corrective repairs as a direct result of Plaintiffs non-performance. The estimated cost of the repair and restoration to be paid by Defendant greater than the amount of money claimed by Plaintiff, 33. Denied. Defendant avers that Plaintiff is not entitled to quantum merit as Plaintiffs non-performance results in no benefits but instead creates additional expense for Defendant to correct the defects. WHEREFORE, with respect to Plaintiffs Complaint for Breach of Contract Claim and Quantum Meruit, Defendant requests: that Plaintiff's Complaint be dismissed and that judgment be entered in favor of Defendant in the amount of $17,588.00, and that Defendant be awarded costs and granted such other and further relief as the Court may deem just and proper. AMENDED NEW MATTER AND COUNTERCLAIM Paragraphs 1 through 33 are incorporated herein as if set forth in their entirety. 2. Mary Thompson (hereinafter referred to as "Counter-Plaintiff) is an adult individual who resides at 1127 South Harrisburg Street, Oberlin, PA 171 13 Custom Patio Rooms of Central Pennsylvania (hereinafter referred to as "Custom Patio" or "Custom Patio") is a Corporation with a principal place of business at 4609 Gettysburg Road, Mechanicsburg, PA 17055. 4. At all times relevant hereto, Custom Patio is a corporation engaged in trade or commerce. 5. Counter-Plaintiff entered into the transaction with Custom Patio primarily for personal, family or household purposes. 6. On or about September of 2002, Counter-Plaintiff, a retired senior citizen met with Custom Patio's sales employee, Mr. Alec Staley, for the purpose of having Counter- Defendant design and construct a patio room for her use at her house. Counter- Plaintiff selected Counter- Defendant in reliance on Custom Patio's representations which were made in the course of his employment and for which he had apparent authority to make. Counter-Plaintiff told Mr. Staley that her primary condition was that she wanted no water leakage problems whatsoever. Mr. Staley assured her that he understood her concern and that Custom Patio's products do not have leakage problems and that there would be no water leakage problems. 8. On or about September 4, 2002, Mr. Staley, conducted a "free home design consultation" which was performed to examine Counter-Plaintiffs home and surrounding property and at that time, Mr. Staley observed the property and its natural conditions including the grade and elevation changes apparent. 9. On September 4, 2002, at the "free home design consultation", the Counter- Plaintiff and Custom Patio executed a Sales Agreement at the house. 10. The Counter-Plaintiff made it clear that she was reliant on the skill, judgment and expertise of Custom Patio as expressed by Mr. Staley and the marketing advertisements and as a result, Counter-Plaintiff executed the Sales Agreement. Custom Patio's provided verbal assurances which conformed to, supplemented and supported Custom Patio's marketing and Advertisement assurances that Counter-Plaintiff would be satisfied with her Patio. 11. Counter-Plaintiff received a Letter from Counter -Defendant that congratulated her on her decision to purchase their product. Said letter assured her that her confidence in Custom Patio Rooms will bring her many years of enjoyment as well as adding value to her home". 12. Custom Patio did not disclose nor acknowledge to Custom Patio at any time before or after signing the Sales Agreement of the existence of any writings or documents which would contradict his assurances or any assurances provided Counter- Plaintiff by Custom Patio, to the detriment of Counter-Plaintiff. 13. After the Sales Agreement was executed in September, 2002, Custom Patio recommended a location for the patio room in Counter-Plaintiff's yard based on their inspection of the property. 14. After Custom Patio recommended the initial site for the installation of the patio room, Custom Patio submitted specifications to its manufacturer based on the selected site, and proceeded to order the major patio room components, including the wall panels, windows, roof, doors and attendant features necessary for their installation. 15. Upon filing an application for a building permit with the local municipality, it was determined that the site selected for the installation of the Patio was not allowed as it was in violation of a local township ordinance which prohibits any building within a specified distance from the homeowner's septic system. 16. As a result of the township's denial of a building permit for the initially chosen location, the Custom Patio selected another site on the Counter-Plaintiff's property for the installation of the patio room. 17. The Counter-Plaintiff, in reliance on Custom Patio's expertise, accepted to her detriment the new second site for the patio room. 18. Custom Patio made all the design decisions concerning the dimensions of the patio room and the specifications of the components of the patio room. Counter- Plaintiff was not in a position to provide any input, nor did she. Counter-Plaintiff totally relied on the expertise, skill and judgment of Custom Patio that the design specifications would result in a room fit for the purpose intended and that the patio room would be habitable and suitable for use. 19. The second site selected by Custom Patio for the installation of the patio room resulted in a completely different configuration of the patio room due to differences in the grade and dimensions of the site selected. 20. Counter-Plaintiff was told and believes that Custom Patio failed to re- order and or resize any of the components despite that fact that the dimensions of the patio room were changed after the switch to the second site. 21. Upon information and belief, Custom Patio did not contact the manufacturer to inform the manufacturer that the specifications for the components of the patio room had changed, and Custom Patio did not re-order materials and components that were appropriate for the new site's dimensions as to height, depth, roofing, siding windows and doors, ground slope and grade and drainage requirements. 22. Custom Patio caused the Counter-Plaintiff to execute an Addendum to the Sales Agreement for the increased costs attendant to the relocated Patio and adjusted dimensions and specifications for patio room. 23. Custom Patio proceeded with constructing the patio room using the design created for the second site, but used the component parts that were manufactured for the first site. 24. Custom Patio failed to disclose to Counter-Plaintiff the potential consequences of proceeding to construct the Patio using the original parts, walls, roof, windows, doors and attendant parts for such components that Custom Patio had previously ordered for the dimensions planned for the first site for the room 25. Custom Patio exercised complete control over the location, design, manufacture, assembly and installation and the standard of care required to assemble the final product. Custom Patio insisted that their specifications as to all aspects of the room's dimensions and component be adhered to, especially as to the masonry foundation work. Neither Counter-plaintiff nor the masonry contractor (Chris Kenny) had any input as to the design or dimensions of the patio. 26. Counter-Plaintiff relied on the expertise of Custom Patio who recommended and helped secure the Counter- Plaintiffs acquiescence in the selection of Mr. Chris Kenny to provide the necessary masonry foundation for the second room site. This was in accordance with the usual practices of Custom Patio and in also reflective of the usual course of dealing between Mr. Chris Kenny and Custom Patio. 27. Mr. Kenny's relied completely on Custom P'atio's design specifications for the patio room to perform his masonry work. 28. Mr. Kenny was under the direct supervision of Custom Patio during the performance of the masonry work in accordance with the Custom Patio's directions and control the project. 29. Custom Patio insisted that Mr. Kenny totally comply with Custom Patio's design specifications for the Patio. 30. Mr. Kenny regularly is retained by customers of Custom Patio at the recommendation of Custom Patios. 31. As per usual practice with Mr. Kenny and Custom Patio, all directions related to the masonry to be performed were provided to Mr. Kenny directly from Custom Patio and he received no direction nor control whatsoever from Counter-Plaintiff. 32. Mr. Kenny informed Custom Patio's product lon manager that the specifications for the patio's floor foundation, knee wall, footers, and other components would not be adequate for the site selected by Custom Patio. 31 In June of 2003, after the assembly of the walls, roofing, windows and doors and necessary interior work, the Counter-Plaintiff experienced problems such as water leakage to the walls, doors and windows, mold growth, doors and windows misfiring, the unfinished wooden beam being water stained from the roof water, flaking caulking from windows and doors, and roof drainage pipes not efficiently functioning due to ineffective location. 34. Custom Patio's failure to design and assemble the patio room so as to be habitable is to the detriment of the Counter-Plaintiff and Custom Patio has continually refused to correct the design flaws despite Counter-Plaintiff s repeated requests for repair or restoration. 35. Counter-Plaintiff has been advised that the estimated cost to repair the aforementioned damages may well be equal to or in excess of the sale price that Counter- Plaintiff has already paid, which is over $17,000. COUNTI BREACH OF CONTRACT/BREACH OF WARRANTIES 36. Paragraphs 1 through 35 are incorporated herein as by reference as if set forth in full. 37. Under Pennsylvania Law, contracts for the construction of dwellings include implied warranties of workmanship and habitability. Furthermore, under Pennsylvania Law, contracts for dwelling design services include an implied warranty that the design produced will result in a structure that is fit for its intended purpose. 38. Pursuant to the Sales Agreement and the implied warranties incorporated therein, Custom Patio was obligated to produce a design that would result in a patio room that was fit for its intended purpose. 39. Pursuant to the Sales Agreement and the implied warranties incorporated therein, Custom Patio was obligated construct a patio room using minimum standards of workmanship. 40. Pursuant to the Sales Agreement and the implied warranties incorporated therein, Custom Patio was obligated to construct a patio room that was habitable by the purchaser. 41. Custom Patio breached the implied warranties of workmanship, habitability, and fitness for intended purpose in designing and constructing the patio room in question, as follows: a. the slope of patio room roof is incorrect in relation to pitch of the roof of the-existing residence and the relationship to the surrounding property grade and b. the size, number and placement of the roof down-spouts are inadequate, resulting in ineffective roof drainage. As a result, sheets of water flow indiscriminately over windows and doors, rather than having water efficiently channeled to flow into an adequately designed and located gutter system. C. the patio room was not properly designed to account for the grade and water flow of the property in the second location chosen by Custom Patio. d. the aforementioned drainage defects cause water to flow into the patio room, causing mold, flaking of paint and caulking, and lingering puddles of water inside the patio room during and after rainstorms,. e. the windows and doors are not fitted properly, making it impossible to close them tightly. As a result moisture and insects regularly enter the patio room. 42. As a result of the substandard design and workmanship exhibited by Custom Patio, Counter-Plaintiff is unable to occupy the patio room on many occasions due to the water problems, and is unable to use the patio room for its intended purpose. 43. Counter-Plaintiff has been advised, and therefore avers, that significant renovations will need to be performed to enable the patio room to function as it should. 44. Counter-Plaintiff has paid $17,588 for the design and construction of her patio room, but the design and construction services provided by Custom Patio did not conform to the implied warranties of workmanship, habitability, and fitness for intended purpose. 45. Custom Patio's substandard design and construction, and the damages suffered by the Plaintiff, place Custom Patio in breach of the Sales Agreement. 45. Despite repeated requests by the Counter-plaintiff to remedy the defective design and installation, Custom Patios continues to refuse to remedy the defects or refund the monies paid by Counter-Plaintiff. WHEREFORE, Counter-Plaintiff demands judgment in her favor and against Custom Patio in the amount of $17,588, plus interest and the costs of the action, and any other relief that the Honorable Court deems just and necessary. Respectfully submitted, )?Xq - (Jv?_ Michael A. n, sq. PA. ID No. 7862:5 Anderson, Gulotta & Hicks, P.C. 121 State Street Harrisburg, PA 17101 (717) 541-1194 08/02/2005 22:02 FAX 717 234 6808 GOLDBERG KATZMAN 0 002/002 Michael A. Gruin, Esq. Anderson, Gulotta & Hicks, P.C. 121 State Street Harrisburg, PA 17101 717-541-1194 Attorney for Defendant CUSTOM PATIO ROOMS OF CENTRAL PA, INC. Plaintiff MARY THOMPSON, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ACTION - LAW NO. 04-5530 JURY TRIAL DEMANDED CONSENT TO AMENDMENT OF PLEADING I, John DeLorenzo, attorney for the Plaintiff, Custom Patio Rooms of Central PA, Inc. in the above captioned matter, hereby consent to the filing of Defendant's Second Amended Answer with Amended New Matter and Counterclaim. Such consent is being provided in order to allow Defendant to remove her Counterclaim under the Pa. Unfair Trade Practices and Consumer Protection Law. Attorney for Plaintiffs 320 Market Street Strawberry Square PO Box 1268 Harrisburg, PA 17108 VERIFICATION I, Michael A. Gruin, Esq., am counsel for the Defendant, Mary Thompson in the above captioned matter. I hereby certify that I am familiar with the facts of this case, and that I am authorized to make this verification on behalf of the Defendant. I hereby certify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unworn falsification to authorities, which provides that if I knowingly make false statements, I may be subject to criminal penalties. 34 ?s Dated: Michael A. Gruin, sq. CERTIFICATE OF SERVICE I do hereby certify that I served a true and correct copy of the within Amended Answer with Amended New Matter and Counterclaim on all parties in this action this _ j day of r? , by first class U.S. mail, postage prepaid, to the Plaintiff's attorney of record at the following address: John DeLorenzo, Esq. 320 Market Street, Strawberry Square PO Box 1268 Harrisburg, PA 17108-1268 _ DATE: Michael A. Cnu sq. %- > ?,> _ ` ? t l --7 .. e I: P.TI .r?. .. ?. J CUSTOM PATIO ROOMS OF CENTRAL PA, INC., Plaintiff, vs. MARY THOMPSON, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-5530 PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Please withdraw the appearance of John DeLorenzo, Esq., as counsel for Custom Patio Rooms of Central PA. GOLDBERG KATZMAN, P.C. By: DATE: May 23, 2007 143227.1 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 ?.,.? k , , ?? ..? ? ? ? ? _;, -_ ?? ??? ? - _ r^" _ ''? ? , CUSTOM PATIO ROOMS OF CENTRAL PA, INC., Plaintiff, vs. MARY THOMPSON, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 04-5530 PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Michael F. Socha, Esq., as counsel for Custom Patio Rooms of Central PA. GOLDBERG KATZMAN, P.C. By: Michael F. Socha, Esquire Attorney ID #200988 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 DATE: May 23, 2007 CUSTOM PATIO ROOMS OF IN THE COURT OF COMMON PLEAS CENTRAL PA, INC. : CUMBERLAND, PENNSYLVANIA Plaintiff V. : CIVIL ACTION - LAW MARY THOMPSON Defendant No. CV -04-5530 PRAECIPE TO MARK CASE SETTLED DISCONTINUED AND ENDED TO THE PROTHONOTARY: At the joint request of both parties in this matter, please mark the above-captioned case settled, discontinued and ended with prejudice. By: J. J4yoe squire Goldberg Katzman, P.C. Attorney I.D. No. 31720 320 Market St., Strawberry Square Harrisburg, PA 17108-1268 (717) 234-4161 Attorney for Plaintiff Custom Patio Rooms of Central PA, Inc. By: A4? v 9 Michael A. Gruen, Esquire Stevens & Lee, P.C. Attorney I.D. No. 78625 17 N. 2nd St. 16th Floor Harrisburg, PA 17101 (717) 255-7365 Attorney for Defendant Mary Thompson SLl 631948v1/050614.00003 FILEC-?NAICIE OF THE PPOT' !?Nr-)TARY 2009 JUL 21 AM 11: 3 3 T.."AGCY` ,t ?F