Loading...
HomeMy WebLinkAbout13-2125 04/19/2013 13:19 (FAX) P.0011001 S-Qpreme Co u' '8 nnsylvania Coutx' lean .041 '•: ', it �' ,S -f :•-::;-:-,�::_ -_ ,,;��.,.�-,;.�, .. ., �.• . Docket-PTa.: f County !a !Ac:htfV?vnatian'C011ectacl on,tltt's far 1tt is=umd solaly for court admifikhation,purposev. T7rIs form does not 'Supplamew.m•replace dieflin .anarservice o lsarltn s-or other• a*j as n4tdred,py law or't ate of,court. 'kotnmencement•of Action: :O Complaint 'M Writ of Summons 0 Petition . '.CJ TrnusterflomAnotherJurisdladon :t3 Dcclaratlau.oPTnking •;. -:,Lead plaintiffs Name: 'Lcsd 1?cfendant•s'Nnmc: M'' Carter Lumber Stoner Contracting Group,I.I.0 t e: Do1larAmouni:Roguested: Ll withitinrbitzation:tt hs A1'C111-0114►,da11d11ge5 YC.tjileSF�tt° d'��L9 No, = .(checl-on e) :0-outside arbitration tiimtts 1 s this Class Action-Siiit? ,i 1 es :TA No Is this an 91rlD.TdppeaT4 ;D. Y�o; ;M No �A -Name.ofPiaitttifflAppe iftnt's Attnmey:_John F:Yanint k,Esquire .•:;? . .�i • •�t7. Cttuesl:'htre 1�you.baye.no:atxorne3°'fare a.S�V-1�Prese�ted (Pt�o Saj;1�4tlpat�ifl :•Y - .F!' Q',' ttt :1]t;: • :ottc4lld].a ; 'NAtti' ;of!tlii ase r '1aee:iui.,.1C, =tlie teft:d the oese 8t 8q7. tles ou'j e!Q Fltita'r.ie ; rrrr . a... .,;qf:.::f.".�ea'• .:'`: U—i• '`lll OdtB t. ::I%,v; �',.ownc:.•:'•• :-0.1w�'� e" .h:• art.,`:t:a-"c .<.�,.. ;^au..�QC�iI�&lCi�t� A�C.t�p,, It '_iii;:f.s<i�igir�'"5�:cwc,:^try;'-°:`jr.u. +ri:�,. `:r: TOR:!' dnnalfnchrdehlrrrs7brq 0DVT- R'A�T,fda W.ILA2PEA :S :`1" :O Intentional Ll Eu' rP..laintitT Adminisuaeive.�lgeucies ' 'Debt CoQecfion:'.CrEditiC�rd -'Cl 'Board af.Atuemeul 13 Niaious.Proseaution Q '0 Motor Voltlule 'O Debt Collection:Other 'C] Doard of Elet:timis 0 Nulslnec O Dept.ofTmnspormtion ,° D Prenpisesd,iabiliry ._: :I],;Staturorlr Appeal.Other b • :O Product-L ability:(dass nprinclude Q�Emplgymrrni:Dityutc; nmss ror/) •. T?igeririnination .,, .. . _ . 1 t CJ Slender/Libel/Dofanlatititt p ,Employmotit-DispirbEwOth.ey .0 iZonioK Eoord' U;Other. '13 .Other: -P Villwz a• r'r� MASS'TQRT IN •.17 ToW6 Jnr i iJ C) Toxic�gtt-DES �. D'ToxfcTort-Implant RED,EROPERTX• : MISCELLANEOUS ` D Toxic WAEtt' p-gjectment ® ,Common JA-,,i tatutory..Arbh.catiorr:, O Q.tlior: '13 EmiftentDontaitiMandew'stioo L7.Dailaretuaylutl tnot>t - .la :Ground•Rent. V'Mandamus -�" t7 LandlotdtTenantDittputtZ E3 Non-Domwoo Relations Q Mog4ge?ore6lostlre:Residential Restmitting Ot'der 1'ROPL6SIONAL GIABLITY O Mortgagefomalosoro;.Cornmercial 0 Quo•Warranto -13'Denti+t Q Part(tton. C7 Replevin I :+:`:�_',:> "L7 Lcgdl Q:Quitflictti i :L�•Olitor: :13-Other.,. •ContractColleetion 'El OihcrT1ofcssi0na1: • - - •• •Uprintatl.:lr!l20I7• • CARTER LUMBER COMPANY, IN THE COURT OF COMMON PLEAS 601 Talmadge Road, CUMBERLAND CO., PENNSYLVANIA Kent, OH 44240 Plaintiff NO. V. C") C) CIVIL ACTION -LAW c ° ; STONER CONTRACTING GROUP, LLC . . r , 706 Somerset Drive z Mechanicsburg, PA 17055 ' ' Defendant <p Z?:r7 PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONTARY: Please issue a Writ of Summons in the above case. Writ of Summons shall be issued and forwarded to the Sheriff. Respectfully submitted, T OMAS THOMAS &H R, LLP Date: April 18, 2013 o n F.Yanin k orney ID #5 1 PO Box 999 Harrisburg, PA 17108-0999 717-441-3952 cz%� -4(o3` -a WRIT OF SUMMONS TO: Stoner Contracting Group, LLC 706 Somerset Drive _ Mechanicsburg, PA 17055 YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Prothonotary'ate p• u�l.� Date: -t 3 By: Deputy SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny RAnderson ` F:ILED -OFFICt Sheriff ,of rrrt} OF T E ROTHO OTIT i`t Jody S Smith °tart Chief Deputy 2013 MAY —3 PIS t2-'. 5 Richard W Stewart Solicitor ��rt���Fa�E�. 5RI¢-F CUMBERLAND COUNTY PENNSYLVANIA Carter Lumber Company Case Number vs. Stoner Contracting Group LLC 2013-2125 SHERIFF'S RETURN OF SERVICE 04/30/2013 02:49 PM-Deputy Shawn Gutshall, being duly sworn according to law, served the requested Writ of Summons by handing a true copy to a person representing themselves to be Mike Stoner, Owner,who accepted as"Adult Person in Charge"for Stoner Contracting Group LLC at 706 Somerset Drive, Mechanicsburg Borough, Mechanicsburg, PA 17055. A TSHALL, �V SHERIFF COST: $39.76 SO ANSWERS, May 01, 2013 RONN R ANDERSON, SHERIFF (c}.Coun(ySulto Sheriff,T'oleosoft,Inc, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CARTER LUMBER COMPANY, 601 Talmadge Road Kent, OH 44240 No. 13-2125 Civil Term Plaintiff V. STONER CONTRACTING GROUP, LLC ` 706 Somerset Drive rnao v3 .r- =m Mechanicsburg, PA 17055 Z:--o Defendants r --i c C:) PRAECIPE FOR � ENTRY OF APPEARANCE `° { To the Prothonotary: Please enter the appearance of the undersigned and Saidis, Sullivan & Rogers on behalf of the Defendant, STONER CONTRACTING GROUP, LLC, in the above- captioned matter. Respectfully Submitted, SAIDIS, SULLIVAN & ROGERS Date: September 3 , 2013 By: Daniel L. Sullivan, Esquire Attorney I.D. 34548 26 West High Street Carlisle, PA 17013 (717) 243-6222 - Phone (717) 243-6486 - Fax dsullivannssr-attomeys.com CERTIFICATE OF SERVICE AND NOW, September 2013, 1, Daniel L. Sullivan, Esquire, hereby certify that I did serve a true and correct copy of the Praecipe for Entry of Appearance upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Carlisle,Pennsylvania, addressed as follows: By First Class Mail: John F. Yaninek, Esquire Thomas, Thomas & Hafer, LLP P. O. Box 999 Harrisburg, PA 17108-0999 SAIDIS, SULLIVAN & ROGERS By: Daniel L. Sullivan, Esquire Attorney I.D. 34548 Attorney for Defendant 26 West High Street Carlisle, PA 17013 Phone(717)243-6222 Fax (717) 243-6486 dsullivan@,ssr-attomeys.com ►I..ED­OFF IGE 0P T R.E PR 0 T HON OTAR 3 EIEC --6 AM I I: 1 'CUMBERLAND COUNTY THOMAS,THOMAS&HAFER,LLP PENNSYLVANIA John F.Yaninek,Esquire Attorney ID#55741 Joshua J.Bovender,Esquire Attorney ID#314001 P.O.Box 999 Harrisburg,PA 17108-0999 717-237-7153 jovender @tthlaw.com Attorneys for Plaintiff CARTER LUMBER COMPANY, IN THE COURT OF COMMON PLEAS 601 Talmadge Road CUMBERLAND CO., PENNSYLVANIA Kent, OH 44240, Plaintiff V. NO. 13-2125 Civ STONER CONTRACTING GROUP, LLC 706 Somerset Drive Mechanicsburg, PA 17055, CIVIL ACTION—LAW FRED E. STONER, 706 Somerset Drive h Mechanicsburg, PA 17055 MICHAEL A. STONER, 300 Walnut Circle Shiremanstown, PA 17011, Defendants. NOTICE TO DEFEND 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 PLEADING AND NOTICE ARE SERVED BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER 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 800-990-9108 NOTICIA LE HAN DEMANDO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tien viente (20) dias de plaza al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia excrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos impotantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONE A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 717-249-3166 800-990-9108 1395458-1 THOMAS,THOMAS&HAFER,LLP John F.Yaninek,Esquire Attorney ID#55741 Joshua J.Bovender,Esquire Attorney ID#314001 P.O.Box 999 Harrisburg,PA 17108-0999 717-237-7153 jbovender @tthlaw.com Attorneys for Plaintiff CARTER LUMBER COMPANY, IN THE COURT OF COMMON PLEAS 601 Talmadge Road' CUMBERLAND CO., PENNSYLVANIA Kent, OH 44240, Plaintiff V. NO. 13-2125 Civ STONER CONTRACTING GROUP, LLC 706 Somerset Drive Mechanicsburg, PA 17055, CIVIL ACTION—LAW FRED E. STONER, 706 Somerset Drive Mechanicsburg, PA 17055 MICHAEL A. STONER, 300 Walnut Circle Shiremanstown, PA 17011, Defendants COMPLAINT Plaintiff, Carter Lumber Company, Inc., by and through its counsel, Thomas, Thomas & Hafer, LLP, respectfully files the within Complaint against Defendants, Stoner Contracting Group, LLC, Fred E. Stoner, and Michael A. Stoner (collectively "Defendants"), and in support thereof avers the following: 1. Plaintiff, Carter Lumber Company, Inc. (hereinafter "Plaintiff') is an Ohio-based corporation duly,authorized to conduct business in the Commonwealth of Pennsylvania with a principal place of business located at 601 Tallmadge Road, Kent, Ohio. 2. Defendant Stoner Contracting Group, LLC is a Pennsylvania limited liability corporation registered to do business within the Commonwealth of Pennsylvania. . 3. Defendant Fred E. Stoner is an adult individual residing at 706 Somerset Drive, Mechanicsburg, Pennsylvania 17055, and is a co-owner and member of Defendant Stoner Contracting Group, LLC. 4. Defendant Michael A. Stoner is an adult individual residing at 300 Walnut Circle, Shiremanstown, Pennsylvania 17011, and is a co-owner and member of Defendant Stoner Contracting Group, LLC. 5. At all times material hereto, Defendants Fred E. Stoner and Michael A. Stoner acted within the course and scope of their employment with Defendant. Stoner Contracting Group, LLC. 6. At all times material hereto, Defendants Fred E. Stoner and Michael A. Stoner acted with apparent and actual authority to conduct and transact business on behalf of Stoner Contracting Group, LLC. 7. At all times material hereto, Stoner Contracting Group, LLC, was engaged as a contractor for the construction of commercial and/or residential properties in Pennsylvania. 8. On or about March 10, 2010, Plaintiff and Defendant Stoner Contracting Group, LLC, entered into an a valid and enforceable contract whereby Plaintiff agreed to sell building supplies and materials to Defendant Stoner Contracting Group, LLC, on a line of credit for use 2 on construction projects ("Yard Account Agreement"). A true and correct copy of the Yard Account Agreement is attached hereto and marked as Exhibit"A." 9. Defendants Fred E. Stoner and Michael A. Stoner, in their capacity as duly authorized agents of Stoner Contracting Group, LLC, personally guaranteed-Defendant Stoner Contracting Group's obligations. under the Yard Account Agreement in order to obtain the materials.and building supplies from Plaintiff. 10. In consideration of the Yard Account Agreement, Stoner Contracting Group, LLC ordered building supplies and materials from Plaintiff who, in turn, sold the building supplies and materials to Defendant Stoner Contracting Group, LLC. 11. Defendant Stoner Contracting Group, LLC continued to make purchases on the Yard Account until March 23, 2012. 12. Subsequent to the formation of the Yard Account Agreement, Defendant Stoner Contracting Group, LLC continued to make payments on the,Yard Account until December 21, 2011, after which Defendant Stoner Contracting Group, LLC failed to make any further payments. 13. Defendant Stoner Contracting Group, LLC's failure to make the foregoing payments constitutes a breach of the Yard Account Agreement. See Exhibit A. 14. . Specifically, Defendant Stoner Contracting Group, LLC has not made any payments on its Yard Account debt since the December 21, 2011 payment in the amount of $10,000.00, despite making purchases on the account until March 23, 2012. 15. As a result, Stoner Contracting Group, LLC has failed to pay for the building supplies and materials purchased on account from Plaintiff per the express terms of the Yard Account Agreement. See Exhibit A. 3 16. Following Stoner Contracting Group, LLC's breach of the Yard Account Agreement, Defendants Fred E. Stoner and Michael A. Stoner, in their personal capacities, also breached their obligations under the Yard Agreement by failing to make the required payments under their personal guarantee of Stoner Contracting Group, LLC's debt with Plaintiff. 17. Defendants currently. owe Plaintiff$60,474.53 in unpaid principal on their Yard Account. 18. Defendants also owe Plaintiff an undetermined amount in financing charges, which continue to accrue as the result of Defendants' delinquent debt pursuant to the express terms of the Yard Account Agreement. See Exhibit"A." 19. Additionally, Defendants are liable to Plaintiffs for the reasonable attorney's fees and costs associated with pursuing this collection action under the express terms of the Yard Account Agreement. See Exhibit"A." COUNT I—BREACH OF CONTRACT Carter Lumber v. Stoner Contracting Group, LLC Breach of Yard Account Agreement 20. Plaintiff incorporates all other paragraphs as if the same were set forth at length herein. 21. At all times material hereto, Plaintiff acted in good faith and in accordance with the parties' Yard Account Agreement as set forth above. 22. Defendant Stoner Contracting Group, LLC entered into the Yard Account Agreement,which constitutes a valid and enforceable contract. 23. Defendant Stoner Contracting Group, LLC breached the Yard Account Agreement by failing to make the payments required by the express terms of the Yard Account Agreement. 4 24. As a direct result of Defendant Stoner Contracting Group, LLC's breach of the Yard Account Agreement, Plaintiff has been damaged in an amount of$60,474.53, plus interest, attorney's fees, and costs. WHEREFORE, Plaintiff, Carter Lumber Company, Inc., demands judgment be entered in its favor and against that of the Defendant Stoner Contracting Group, LLC in the amount of $60,474.53, together with interest, financing fees, attorneys' fees, cost of suit, and any other relief this Honorable Court deems just and appropriate. COUNT II—BREACH OF CONTRACT Carter Lumber v. Fred E. Stoner& Michael A. Stoner Breach of Personal Guarantees 25. The foregoing paragraphs are incorporated by reference as if set forth at length herein. 26. Stoner Contracting Group, LLC, breached the Yard Account Agreement when it failed to make its required payments to Plaintiff, thereby triggering Defendants Fred E. Stoner and Michael A. Stoner's personal obligations to assume payment of the outstanding balance on the Yard Account. 27. Defendants Fred E. Stoner and Michael A. Stoner breached their personal guarantee obligations under the Yard Account Agreement by failing to make the required payments to Plaintiff. 28. As a result of Defendants Fred E. Stoner and Michael A. Stoner's respective breaches of their personal guarantee of Defendant Stoner Contracting Group, LLC's obligations under the Yard Account Agreement, Plaintiff has been damaged in an amount of $60,474.53, plus interest, attorney's fees, and costs. 5 WHEREFORE, Plaintiff, Carter Lumber Company, Inc., demands judgment be entered in its favor and against that of the Defendants Fred E. Stoner and Michael A. Stoner in the amount of$60,474.53, together with interest, financing fees, attorneys' fees, cost of suit, and any other relief this Honorable Court deems just and appropriate. COUNT III—UNJUST ENRICHMENT Carter Lumber Company,Inc. v. All Defendants 29. The foregoing paragraphs are incorporated as if the same were set forth at length herein. 30. At the request of Defendants, Plaintiff provided building supplies and materials to Defendants for use and incorporation into certain construction projects. 31. Plaintiff did not provide the supplies and materials to Defendants gratuitously. 32. At all times material hereto, Plaintiff reasonably expected to be paid for the building supplies and materials sold and provided to Defendants. 33. In order to obtain the financing provided under the Yard Account Agreement, Defendants Fred E. Stoner and Michael A. Stoner' personally guaranteed the Yard Account Agreement. 34. Defendant Stoner Contracting Group, LLC benefited from building materials and supplies it received from Plaintiff as said materials and supplies were required in order to complete the commercial and/or residential construction for which Defendant Stoner Contracting Group, LLC, is believed to have contracted. 35. As principals of Defendant Stoner Contracting Group, LLC, Defendants Fred E. Stoner and Michael A. Stoner personally benefited from the personal guarantee as it enabled their business, Stoner Contracting Group, LLC, to obtain financing to purchase building supplies and materials. 6 36. The building supplies and materials provided by Plaintiff were knowingly and voluntarily accepted by Defendants. 37. In the alternative to Counts I and II, the acceptance and use of the building supplies and materials by Defendants created an implied contract, whereby Defendants are obligated to pay. Plaintiff the reasonable value of said building supplies and materials. 38. The provision of building supplies and materials by Plaintiff to Defendants has directly benefited Defendants and, in the event that Defendants are not required to pay Plaintiff the reasonable value of the same, then Defendants will have been unjustly enriched. 39. As a direct result of Defendant's unjust enrichment, Carter Lumber is entitled to recover not less than $60,474.53 from Defendants. WHEREFORE, Plaintiff Carter Lumber Company, Inc. demands judgment be entered in its favor and against that of Defendants in the amount of$60,474.53, together with cost of suit, reasonable attorneys' fees, and other relief this honorable Court deems just and appropriate. COUNT IV—CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT Carter Lumber Company, Inc.v. Stoner Contracting Group, LLC 40. The foregoing paragraphs are incorporated as if the same were set forth at length herein. 41. Defendant Stoner Contracting Group, LLC, has wrongfully and without reasonable justification withheld payment from Plaintiff as aforesaid. 42. The unjustifiable failure to pay Plaintiff was arbitrary and vexatious, and constitutes bad faith. 43. Defendant Stoner Contracting Group, LLC's actions therefore violate the Pennsylvania Contractor and Subcontractor Act, 73 Pa.C.S. §§ 501-516 and entitle Carter Lumber to the award of interest,penalties, and attorneys' fees as set forth therein. 7 WHEREFORE, Plaintiff, Carter Lumber Company, Inc., demands judgment be entered in its favor and against that of Defendant Stoner Contracting Group, LLC in the amount of $60,474.53, together with cost of suit, interest, penalties, attorneys' fees, and other relief this honorable Court deems just and appropriate. COUNT IV—ATTORNEYS FEES AND COSTS Plaintiff v. All Defendants ,44. The foregoing paragraphs are incorporated as if set forth at length herein. 45. Defendants' contract with Plaintiff provides that Defendants "agree to pay all actual cost of collection including actual attorneys fees, court cost and or collection agency fees due to . . . [Defendant's] breach of the terms of sale." Exhibit"A." 46. This case is a collection action to collect the outstanding balance on the Yard Account executed by Defendant Stoner Contracting Group, LLC, and personally guaranteed by Defendants Fred E. Stoner and Michael A. Stoner. WHEREFORE, Plaintiff, Carter Lumber Company, Inc., demands judgment be entered in its favor and against Defendants Stoner Contracting Group, LLC, Fred E. Stoner, and Michael A. Stoner, in the amount of$60,474.53, together with cost of suit, interest, penalties, attorneys' fees, and other relief this Honorable Court deems just and appropriate. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: _ ;"t J ua J. Bo der Es re John F. Yaninek, Esquire Date: 1115 l 3 1395458.1 8 2010-04-12 14:37 JEFF SIBERT 717-467-5575>>FAXCOM P 1/1 mhl YARD ACCOUNT APPLICATION V .,.ow qwfm UPI AN 000mution must be completed for procw D STORE CITY ft STATE STORE NUMBER ogR NAME AND NUMBER UMM ?A I Ma 230-4 {•, CW=7"1 Qf A=LMIT: 19 151.1"Mll CfI LfwT MQUECTED ri C A. I A�WA Ct OWNER EIRLD(H)A00OUNT-(XMIM It Moon 1191h) 0 000 O NOWROPIT 1 WISH TO SIGN UP FOR YARD RiWAtmc eB T�s,Ngn mo up 0 00 not sign ms up at If"tins Chm*0m: Q SOL&PROPRIETOR PARMRSHIP Of LLC O COWPATION y374324 Cn UAM ZW W=OF OWNERS OR CFFKERB TOLE "m AODREfI TELEPHONE NO, S.SAL NO. Fred E. Sh'i� -- E ri fib) MA If-1 Z.-w4S f�r�W.i Lei. .l t tm( & -w .t.. 1ST- 5,F Chm*Tww of Joba: AMIDEIM& d COMMMWA . Chaok it applleabW.. O TAX OMPT 0 PA REQUIRED wws AG al, hedda)395-$223 CM.IMAM Zilr M lyw A CRY. A �- COOT TOTAL �=tD dow Carper LLwnbsr Omlp"to WgWm al the ebm bark sftbh MW myr ow sbudion It se, i(Ws)auft ft#V 0"Bank tD of ffNf date, Ids strwwd bidAt" NvOabM Sunda. TW AOitQtA M it SUMWTO M TOM AND CONOnXIlI t PlaOPW AW"AND ON M aV9"9*W,WK)M AM MAM PMI HEMW AND lw"m M D EDACKNOWLEDOES TMTTMY HAVE HEAD AND UNDUMAtW x . 1444gel A_ kcimJ A., , "GAS' aeirrn on TYIEO) �a+'� m'd • Q ine� rRl� ��_, a�Te XAI & Aim fie f. QmICc" ill]) 7 NAMORKNOMS FAX TO CWSII ffPAR 9MrAT f"7diOM 7nifL nq.ln 17,as RTnNFA M A 7177a7CQ17 aa,.o 7 EXHIBIT 'ARMS AND CONDITIONS Thls agreement states die terms for your credit account with Carter Lumber Company and any of its subsidiaries. "You"and"your" mean each person or corporation who is named on this account."We","Us",and"Our"mean the Carter Lumber Company or any of its subsidiaries, Purchosesa You can use your credit account to purchase goods at Center Lumber Company and any of its subsidiaries noted an this application. Credit Limltt We will tell you the amount of your credit limit when we approve your account. Personat Guarantee: Guarantors jointly and severally,unconditionally guarantee the payment of any and all sums of money as are now,or at any time hereinafter may be owing to Carter Lumber Company by Applicant at Guarantarls,as a result ofCatttr Lumber Company's extension of credit. Guarantor/s,waives notice of extension of time or modification of terms,settlements or resolutions of disputes,modification of credit line,default of Applicant This is intended to be and is a continuing guarantee and shall not be revoked except by written notice to Carter Lumber Company not to make any further sales and deliveries on the security of this guarantee.The Guarantods signature further acknowledges that specifmo authorization has been granted to Carter Lumber Company to investigate the Guarantor/s individual consumer credit report,necessary widi this guarantee, Prompt Payment Ali building construction accounts must follow the pay when paid requirements of state law It is your responsibility to discuss the time of payments in the event the above terms vary from the normal terms outlined below. Applicant and or guarantorls agree to pay all actual cost of collection including actual attorney's fees,court cast and or collection agency fees duo to Carter Lumber Company as applicants'or guarantorls breach of the terms of sate,whether or not a lawsuit is brought to satisfy the debt owed to Carter Lumber by applicancor guarantor/s. In the event that any suitor collection action is required to enforce the terms of this Credit Application and to collect unpaid account balances owing to Carter Lumber Company,the undersigned agrees that jurisdiction end venue for any such action shall not be limited to the state and county in which the materials,goods or services are purchased or received. eayntentTerms for Comoration Account:30 Div Terms Entire balance due on or before the I50'of every month unless otherwise approved by the Credit Department.Finance charges of L5%per month will be added to past due amounts. All past due accounts are subject to termination of additional credit. You agree to be bound by above terms and conditions,which are hereby incorporated by reference and made a part of this application. Your check is your receipt Payment Term_for Mgn•oro(it andL�ent' 60 Day Terms Entire balance due an or before the 15'j'of the 2'd month unless otherwise apptoved by the Credit Department Finance charges of 1.5%per month will be added to past due amounts. All past due i accounts are subject to termination ofadditlonal credit. You agree to be bound by above terms and conditions,which are hereby i incorporated by reference and made a part of this application. Your check is your receipt _M....___...._. gaymcrilTarmsfo,r Accounts: May Terms:Cash Financing,any owncrbuilt home that is-financed with cash-and does-not have-•--- —°-•••---°°•••.. an existing bank financed construction loan will be subjcctte 30 Day Terms,Entite batanco due on or before the 15,of every month unless otherwise approved by the Credit Department Finance charges of 1.5°/a per month will be added to past due amounts. All past duo accounts are subjtetto termination of additional credit. 60 Day Terms: Bank Construction Loan Financing,any owner built home that is financed will%a construction loan will be subject to 60 day terms,Entire balance due on or before the IP of the 2nd month unless otherwise approved by the Credit Department Finance charges of 1.5%per month will be added to past due amounts.All past due accounts are subject to termination of additionat credit. You agree to be bound by above terms and conditions,which are hereby incorporated by reference and made a part ofthis application. Your check is your receipt. Cglicellation:Except where specific written notice is required by law,we can cancel your account anytime in person,by phone,or written notice sent to you at die address where we mail your statement. You can cancel your account by notifying us in writing. If your account is cancel(cd by your,or by us,you will have to pay us die full amount you owe us.Including amounts that have not been billed to you yet. Change in Sams: We con change the terms of this agreement anytime, Notification of changes will be made in accordance with federal or state law. You agree that changes will apply to purchases made prior to any change as well as to new purchases. If the late makes auy part of this agreement void,all the other terms shall be saverablc and anforceablo. Disnufes: Disputes must be submitted in writing within.60 days of invoice date in order to be considered valid. Any disputes that are not in writing will be considered valid and payment terms above will apply. Lien Riehts: You understand and agree that we reserve the right to file a mechanic's lien,attested account,or take whatever action is necessary against you,the property owner where the materials air being utilized,the general contractor,the,leading institution financing said construction,or any other party that would have control over the funds utilized for the purchase ofsaid merchandise. Credit Renort: You authorize us to obtain reports to be used in connection with this application,and to obtain further credit Information from any persons or firm set forth in this application and from any other source that we decide to use regarding the business,its officers,director,agents,employees,or principals. You authorize us to retain all information and reports far our(ties. Buyers preern"L The person signing artities that all information provided is true and correct. You hereby give consent and authorized Mr.below named person(s)to use the Carter Lumber Yard Account and understand that your business is liable for payment of all charges incurred by audmorizcd signers. You agree to promptly notify Carter Lumber of any changes in authorized users, Carter Lumber Company,Caner-!ones Lumber Company,Holmes Lumber Company.Sugarcreek Lumber Company, Kighti umber Company _ ..._..._.._._.._...,.-........ ...... j 1 VERIFICATION I, Joshua J. Bovender, Esquire, state that I am the attorney for the party filing the foregoing document; that I make this Affidavit as an attorney because I have sufficient, knowledge or information and belief, based upon my investigation of the matters averred or denied in the foregoing document; that time is of the essence in the filing of this document; and that,this statement is made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. THOMAS, THOMAS, &HAFER,LLP oshua J. squire DATE: 38603-1 CERTIFICATE OF SERVICE I, Gwen M. Cleck, an employee of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I served the foregoing Complaint on the following by placing same in the United States mail,postage prepaid, and addressed as follows: Daniel L. Sullivan, Esquire Saidis, Sullivan& Rogers 26 West High Street Carlisle, PA 17013 k LA 1 v wen M. Cleck Date: 1395458-1 #r )L PRO TH0 Tani; THOMAS,THOMAS&HAFER,LLP 2013 DEC 7 p t John F.Yaninek,Esquire H� ,i: 3 Attorney ID#55741 j Joshua J.Bovender,Esquire CJHBERLAND COUNTY Attorney ID if 314001 PENNSYLVANIA P.O.Box 999 Harrisburg,PA 17108-0999 717-237-7153 jbovender@tthlaw.com Attorneys for Plaintiff CARTER LUMBER COMPANY, IN THE COURT OF COMMON PLEAS 601 Talmadge Road CUMBERLAND CO., PENNSYLVANIA Kent, OH 44240, Plaintiff v. NO. 13-2125 Civ STONER CONTRACTING GROUP, LLC 706 Somerset Drive Mechanicsburg, PA 17055, CIVIL ACTION—LAW FRED E. STONER, 706 Somerset Drive Mechanicsburg, PA 17055 MICHAEL A. STONER, 300 Walnut Circle Shiremanstown, PA 17011, Defendants ACCEPTANCE OF SERVICE I, Daniel L. Sullivan, Esquire, hereby accept service of the Complaint in the above- referenced matter on behalf of Defendants Fred E. Stoner and Michael A. Stoner, and represent that I am authorized to do so. SAIDIS, SULLIVAN & ROGERS By: Daniel L. Sullivan, Esquire Date: . �...�g�1.0 1405939.1 CERTIFICATE OF SERVICE I, Gwen M. Cleck, an employee of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I served the foregoing Acceptance of Service of the Complaint on the following by placing same in the United States mail, postage prepaid, and addressed as follows: Daniel L. Sullivan, Esquire Saidis, Sullivan& Rogers 26 West High Street Carlisle, PA 17013 Gwen M. Cleck Date: l a-I t-I3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW CARTER LUMBER COMPANY, • Plaintiff • • No. 13-2125 Civil Term v. • • STONER CONTRACTING GROUP, LLC, • FRED E. STONER and • MICHAEL A. STONER, Defendants I.. rz ....E NOTICE TO PLEAD U7r F.a C')', TO: Carter Lumber Company c/o Joshua J. Bovender, Esquire ' _ John F. Yaninek, Esquire Thomas,Thomas&Hafer, LLP (5 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 You are hereby notified to file a written response to the enclosed New Matter within twenty(20)days from service hereof or a judgment may be entered against you. SAIDIS, SULLIVAN &ROGERS Date'Jecsz.r. -' .1 20►3 Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717-243-6222 - Phone 717- 243-6486 - Fax dsullivan@ssr-attorneys.com Attorneys for Fred E. Stoner and Michael A. Stoner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW CARTER LUMBER COMPANY, • Plaintiff No. 13-2125 Civil Term v. STONER CONTRACTING GROUP,LLC, . FRED E. STONER and MICHAEL A. STONER, Defendants ANSWER AND NEW MATTER OF DEFENDANTS FRED E. STONER AND MICHAEL A. STONER AND NOW this a� day of , 2013, come Defendants,Fred E. Stoner and Michael A. Stoner(collectively referred to as"Defendants"),by their attorneys, Saidis, Sullivan&Rogers, and file the following Answer and New Matter to Plaintiff's Complaint: 1. Admitted on information and belief. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part and denied as stated in part. It is admitted that at times Fred E. Stoner and Michael A. Stoner acted within the course and scope of their employment with Stoner Contracting Group, LLC ("Stoner Contracting"). Because the phrase"[a]t all times material hereto"is indefinite and imprecise,Defendants are unable to respond with specificity with respect to any particular action on their part as being within or without the course and scope of their employment. 6. Admitted in part and denied as stated in part. It is admitted that at times Fred E. Stoner and Michael A. Stoner acted with apparent and actual authority to conduct and transact business on behalf of Stoner Contracting. Because the phrase "[a]t all times material hereto"is indefinite and imprecise,Defendants are unable to respond with specificity with respect to any particular conduct or transaction of business that may have been performed on behalf of Stoner Contracting. 7. Admitted. 8. Admitted in part and denied in part. It is admitted that Fred Stoner and Michael Stoner signed a document similar to the first page of Exhibit"A"on behalf of Stoner Contracting on or about March 10, 2010. However,Defendants deny the remaining averments of this paragraph. When the document was presented to them for execution in person by Plaintiffs representative,Jeff Sibert, Mr. Sibert described to them that it was simply a credit application and dismissed any significance to the second page of Exhibit"A" (which was not pointed out to them or presented to them by Mr. Sibert or otherwise provided to them by Plaintiff) . Mr. Sibert encouraged them to quickly complete and sign the first page and return it to him. The document signed by Fred Stoner and Mike Stoner did not include the scratched-out sections or some of the handwriting appearing at the top of Exhibit"A." The document provided to Fred and Michael Stoner did not include the handwritten credit limit of"$10,000.00." Further,the block checked as"yes, sign me up" was not checked on the form signed by Fred Stoner and Michael Stoner. The averment that Exhibit"A"is a valid and enforceable contract is a conclusion of law to which no responsive pleading is required. 9. Admitted in part and denied in part. As set forth in paragraph 8, above, which is hereby incorporated by reference, Fred Stoner and Michael Stoner executed a document similar to the first page of Exhibit"A." The remaining averments of this paragraph are conclusions of law to which no responsive pleading is required. 10. Admitted in part and denied in part. It is admitted that at one or more times one of the authorized account users from Stoner Contracting ordered building supplies and materials from Plaintiff. However,Defendants aver on information and belief that various building supplies and materials which purportedly were ordered on behalf of Stoner Contracting were ordered by persons others than the four persons authorized as account users on the first page of Exhibit"A." Without specific identification and production of supporting documents with respect to each and every item of building supplies and material allegedly ordered on behalf of Stoner Contracting, after reasonable investigation Defendants are unable to admit or deny that Stoner Contracting ordered any particular building supplies and materials at issue herein, so that these averments are deemed denied and proof demanded.. 11. After reasonable investigation,Defendants are without knowledge or information sufficient to form a belief as to the specific dates on which Stoner Contracting's authorized account users made purchases on the Yard Account or ordered any particular building supplies or materials, so that these averments are deemed denied and proof demanded. 12. Admitted in part and denied in part. Defendants admit on information and belief that Stoner Contracting's last payment was made on or about December 21, 2011. The phrase in this paragraph averring that Stoner Contracting"continued to make payments"is unclear and imprecise, so that this averment is deemed denied and proof demanded. 13. The averments of paragraph 13 are conclusions of law to which no responsive pleading is required. 14. Admitted in part and denied in part;Defendants' responses to paragraphs 11 and 12 are hereby incorporated by reference. 15. After reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of the averments of paragraph 15 so that these averments are deemed denied and proof demanded; Defendants' response to paragraph 10 is hereby incorporated by reference. 16. The averments of paragraph 16 are conclusions of law to which no responsive pleading is required. 17. The averments of paragraph 17 are conclusions of law to which no responsive pleading is required. In further response,nevertheless, Defendants' responses to paragraphs 10, 21 and the New Matter allegations set forth in paragraphs 47- 66 are hereby incorporated by reference. 18. The averments of paragraph 18 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,the document identified as Exhibit"A' is a written document which speaks for itself, and Defendants deny the accuracy and completeness of any attempt by Plaintiff to describe, characterize, or selectively quote therefrom. 19. The averments of paragraph 19 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,the document identified as Exhibit"A' is a written document which speaks for itself, and Defendants deny the accuracy and completeness of any attempt by Plaintiff to describe, characterize, or selectively quote therefrom. COUNT I—BREACH OF CONTRACT Carter Lumber v. Stoner Contracting Group,LLC Breach of Yard Account Agreement 20. —24. Count I,paragraphs 20—24 are directed at a Defendant other than Fred E. Stoner and Michael A. Stoner so that no response by them is required. COUNT II—BREACH OF CONTRACT Carter Lumber v.Fred E. Stoner&Michael A. Stoner Breach of Personal Guarantees 25. The foregoing paragraphs are incorporated herein by reference as if set forth at length herein. 26. The averments of this paragraph constitute conclusions of law to which no responsive pleading is required. In further response, nevertheless,Defendants deny that Stoner Contracting breached the Yard Account Agreement. Plaintiff, acting primarily through its authorized agent and employee, Jeff Sibert,undertook a persistent course of conduct not in good faith and not in accordance with any agreement or reasonable commercial standard,whether set forth in the Yard Account Agreement or otherwise. In particular,Plaintiff,primarily through Mr. Sibert, failed to communicate with Stoner Contracting in a timely and meaningful manner, failed to invoice in a timely manner, failed to respond meaningfully and promptly to account questions, and failed to keep Stoner Contracting apprised of the status of its account throughout the course of its dealings with Stoner Contracting. Defendants further aver on information and belief that Plaintiff, primarily through Mr. Sibert, interacted directly and extensively with Stoner Contracting customers Terry and Claudia Cook regarding selections for their house which was being remodeled without involving a representative of Stoner Contracting in the selection,pricing or ordering process. Mr. Sibert persuaded Mr. and Mrs. Cook to order material beyond their contracted allowance, despite Mr. Sibert knowing the Cooks'contract allowance on the items under discussion. Mr. Sibert constantly caused to be shipped excessive materials to the Cook job site and failed to pick up excess shipments in a timely manner. Plaintiff, through Mr. Sibert or others in Plaintiff's billing department, failed to timely,regularly and properly advise Stoner Contracting of the material allegedly being purchased on its behalf through its account and failed to process invoices and credits in a timely and proper manner. Plaintiff charged various materials and supplies to Stoner Contracting's account without those materials and supplies being ordered by any of Stoner Contracting's authorized account users. 27. The averments of paragraph 27 are conclusions of law to which no responsive pleading is required. 28. The averments of paragraph 28 are conclusions of law to which no responsive pleading is required. WHEREFORE,Defendants demand that Plaintiff's Complaint be dismissed with prejudice and that they be awarded fees, cost of suit and such other and further relief as this Honorable Court deems just and appropriate. COUNT III—UNJUST ENRICHMENT Carter Lumber Company,Inc.v.All Defendants 29. The responses to the foregoing paragraphs are incorporated herein as if the same were set forth at length. 30. Admitted in part and denied in part. Defendants' response to paragraph 10 is hereby incorporated by reference. 31. Admitted in part and denied in part. It is admitted that when Stoner Contracting ordered supplies and materials by its authorized account users it assumed Plaintiff was not providing the supplies and materials gratuitously. With respect to supplies and materials ordered by persons other than Stoner Contracting's authorized account users, after reasonable investigation Defendants are without information or knowledge sufficient to form a belief as to the truth of these averments so that the same are deemed denied and proof demanded. 32. After reasonable investigation,Defendants are without information or knowledge sufficient to form a belief as to the truth of the averments describing Plaintiff's reasonable expectations so that these averments are denied and proof demanded. In further response,nevertheless, as set forth in paragraph 31 above, Defendants assumed that supplies and materials purchased by authorized account users on Stoner Contracting's behalf were not supplied gratuitously. 33. The averments of paragraph 33 are conclusions of law to which no responsive pleading is required. In further response,Defendants deny that they were ever advised that any personal guarantee was required in order for Stoner Contracting to purchase supplies and materials on credit. 34. The averments of paragraph 34 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,without specific identification of the building materials and supplies to which this paragraph refers, after reasonable investigation Defendants are without information or knowledge sufficient to form a belief as to the truth of the averments so that the averments are therefore deemed denied and proof demanded. 35. The averments of paragraph 35 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,without specific identification of the building materials and supplies to which this paragraph refers, after reasonable investigation Defendants are without information or knowledge sufficient to form a belief as to the truth of the averments so that the averments are therefore deemed denied and proof demanded. 36. Admitted in part and denied in part. Defendants' response to paragraph 10 is hereby incorporated by reference. 37. The averments of paragraph 37 are conclusions of law to which no response is required. In further response,nevertheless,the averments are denied on the basis of the responses set forth in paragraphs 10,26 and 47-66,which are hereby incorporated by reference. 38. The averments of paragraph 38 are conclusions of law to which no responsive pleading is required. In further response, nevertheless,the averments are denied and Defendants' responses to paragraphs 10 and 31 are hereby incorporated by reference. 39. The averments of paragraph 39 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,the averments are denied and Defendants' responses to paragraphs 10 and 31 are hereby incorporated by reference. WHEREFORE,Defendants demand that Plaintiffs Complaint be dismissed with prejudice and they be awarded fees, cost of suit and such other and further relief as this Honorable Court deems just and appropriate. COUNT IV—CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT Carter Lumber Company,Inc.v. Stoner Contracting Group,LLC 40.—43. The averments of Court IV,paragraphs 40—43, are directed at a Defendant other than Fred E. Stoner and Michael A. Stoner so that no response by them is required. COUNT IV(sic)—ATTORNEYS FEES AND COSTS Plaintiff v.All Defendants 44. The foregoing paragraphs are incorporated by reference as if set forth in full. 45. Denied. Exhibit"A"is a written document which speaks for itself, and Defendants deny the accuracy and completeness of any attempt by Plaintiff to describe, characterize or selectively quote therefrom. In further response thereto,the response to paragraph 8 is hereby incorporated by reference. 46. The averments of paragraph 46 are conclusions of law to which no responsive pleading is required. In further response,nevertheless, for the reasons set forth herein, and in particular the responses to paragraphs 10 and 26, Defendants deny the accuracy of Plaintiff's attempt to characterize the nature of this action. WHEREFORE,Defendants demand that Plaintiff's Complaint be dismissed with prejudice and that they be awarded fees, cost of suit and such other and further relief as this Honorable Court deems just and appropriate. NEW MATTER 47. Count II of the Complaint fails to state a valid claim upon which relief can be granted against Defendants. 48. Count III of the Complaint fails to state a valid claim upon which relief can be granted against Defendants. 49. Court IV(sic) (Attorneys Fees and Costs) fails to state a valid claim upon which relief can be granted against Defendants. 50. Plaintiff procured Defendants' signatures on the first page of the document labeled Yard Account Agreement by having its employee,Mr. Sibert,present the document to them in person,describe the document simply as an account application, dismiss any significance to any other page of the document, encourage Defendants to quickly complete and sign the first page and return it to him, fail to make any mention of any personal guaranty component or that provision of a personal guaranty was required in order for Plaintiff to extend credit terms to Stoner Contracting, or at any time providing notice that any alleged personal guaranty was accepted. 51. Plaintiff,through its agent,Jeff Sibert,was aware of the material and supply allowances provided for in Stoner Contracting's contact with its customers,Terry and Claudia Cook. 52. On various occasions,Plaintiff,through its agent,Jeff Sibert,met directly with Terry and/or Claudia Cook in order to encourage them to select materials and supplies for the construction project at their residence without representatives of Stoner Contracting being present or involved in the selections. 53. Plaintiff,primarily through Mr. Sibert, caused materials and supplies to be charged to the Stoner Contracting account without the knowledge and consent of Stoner Contracting and without the orders being authorized by one of the four Stoner Contracting authorized account users. 54. Plaintiff,primarily through Mr. Sibert, encouraged Terry and Claudia Cook to purchase materials and supplies exceeding in cost their allowances under their construction contract with Stoner Contracting. 55. Plaintiff,primarily through Mr. Sibert, failed to regularly and timely advise Stoner Contracting of supplies and materials and related quantities and costs being ordered by Terry and Claudia Cook. 56. Plaintiff failed to send timely and accurate invoices to Stoner Contracting with respect to materials and supplies allegedly ordered by it but which were actually being ordered by Terry and Claudia Cook. 57. Plaintiff failed to respond timely and completely to various account questions posed to it by Stoner Contracting. 58. Plaintiff regularly and routinely shipped excessive materials to the Stoner Contracting job site and then failed timely to pick up and remove the excess materials when requested to do so. 59. Plaintiff failed to process credits to Stoner Contracting's account based upon material that should never have been delivered and invoiced in the first place. 60. Defendants aver on information and belief that Plaintiff compensated its agent,Jeff Sibert,in part,on a commission basis based upon the cost of materials and supplies Mr. Sibert sold. 61. Defendants aver on information and belief that Mr. Sibert, acting in his capacity as Plaintiff's employee, deliberately encouraged Terry and Claudia Cook to order supplies and materials beyond their allowances in order to generate more personal commission compensation to him. 62. Defendants aver on information and belief that Mr. Sibert caused excessive materials to regularly be delivered to the Stoner Contracting job site so that he would generate commissions on those alleged sales. 63. Plaintiff failed to act in good faith and in accordance with its contract obligations and reasonable commercial standards in its dealings with Stoner Contracting and Defendants. 64. Defendants never agreed to any increase or change in the credit limit of $10,000 applicable to Stoner Contracting. 65. Defendants never agreed to any extension in time for payment of Stoner Contracting's account payments, the addition of any authorized account users, or any other modification of the underlying account terms. 64. On the basis of the foregoing and other facts that maybe developed through discovery, some or all of Plaintiff's claims may be barred in whole or in part by the defenses of consent, duress, estoppel, failure/lack of consideration, fraud,illegality, impossibility of performance,justification,laches,novation,payment, statute of frauds, statute of limitations, unclean hands,unconscionability, and waiver. Defendants reserve the right to plead and raise such further and additional defenses as may be applicable following discovery and further investigation. WHEREFORE,Defendants demand that Plaintiff's Complaint be dismissed with prejudice and that they be awarded fees, cost of suit and such other and further relief as this Honorable Court deems appropriate. SAIDIS, SULLIVAN & ROGERS Date: 20% (— Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717- 243-6222 - Phone 717- 243-6486 - Fax dsullivan@ssr-attorneys.com Attorneys for Fred E. Stoner and Michael A. Stoner VERIFICATION I, Fred E. Stoner, hereby verify that the facts set forth in the foregoing document are true and correct to the best of my knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Fr: . Stoner VERIFICATION I, Michael A. Stoner, hereby verify that the facts set forth in the foregoing document are true and correct to the best of my knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Michael A. Stoner CERTIFICATE OF SERVICE I hereby certify that on this a L day of -boc r , 2013, a true and correct copy of the foregoing document was served upon the party listed below, via First Class Mail, postage prepaid, addressed as follows: Joshua J. Bovender, Esquire John f. Yaninek, Esquire Thomas, Thomas & Hafer, LLP P. O. Box 999 Harrisburg, PA 17108-0999 SAIDIS, SULLIVAN &ROGERS ( 131 Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717-243-6222 - Phone 717- 243-6486 - Fax dsullivan @ssr-attorneys.corn IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW CARTER LUMBER COMPANY, Plaintiff • • No. 13-2125 Civil Term v. STONER CONTRACTING GROUP,LLC, • FRED E. STONER and MICHAEL A. STONER, Defendants • r— • NOTICE TO PLEAD .� L ., TO: Carter Lumber Company r- c:; c/o Joshua J. Bovender, Esquire John F.Yaninek, Esquire re< «;..; Thomas,Thomas &Hafer, LLP t _ 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 You are hereby notified to file a written response to the enclosed New Matter within twenty(20)days from service hereof or a judgment may be entered against you. SAIDIS, SULLIVAN & ROGERS Date: C12-r- ZLk ZO13 Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717- 243-6222 - Phone 717- 243-6486 - Fax dsullivan(&,ssr-attorneys.com Attorneys for Stoner Contracting Group, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW CARTER LUMBER COMPANY, Plaintiff • • No. 13-2125 Civil Term v. • STONER CONTRACTING GROUP, LLC, FRED E. STONER and MICHAEL A. STONER, Defendants • ANSWER AND NEW MATTER OF DEFENDANT STONER CONTRACTING GROUP,LLC AND NOW this 2tA`'`t day of , 2013, comes Defendant, Stoner Contracting Group, LLC ("Stoner Contracting"),by its attorneys, Saidis, Sullivan&Rogers, and files the following Answer and New Matter to Plaintiff's Complaint: 1. Admitted on information and belief. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part and denied as stated in part. It is admitted that at times Fred E. Stoner and Michael A. Stoner acted within the course and scope of their employment with Stoner phrase Contracting. Because the h "�a�t all times material hereto"is indefinite and p imprecise, Stoner Contracting is unable to respond with specificity with respect to any particular action on their part as being within or without the course and scope of their employment. 6. Admitted in part and denied as stated in part. It is admitted that at times Fred E. Stoner and Michael A. Stoner acted with apparent and actual authority to conduct and transact business on behalf of Stoner Contracting. Because the phrase "[a]t all times material hereto"is indefinite and imprecise, Stoner Contracting is unable to respond with specificity with respect to any particular conduct or transaction of business that may have been performed on behalf of Stoner Contracting. 7. Admitted. 8. Admitted in part and denied in part. It is admitted that Fred Stoner and Michael Stoner signed a document similar to the first page of Exhibit"A"on behalf of Stoner Contracting on or about March 10, 2010. However, Stoner Contracting denies the remaining averments of this paragraph. When the document was presented to them for execution in person by Plaintiff's representative,Jeff Sibert,Mr. Sibert described to them that it was simply a credit application and dismissed any significance to the second page of Exhibit"A"(which was not pointed out to them or presented to them by Mr. Sibert or otherwise provided to them by Plaintiff). Mr. Sibert encouraged them to quickly complete and sign the first page and return it to him. The document signed by Fred Stoner and Mike Stoner did not include the scratched-out sections or some of the handwriting appearing at the top of Exhibit"A." The document provided to Fred and Michael Stoner did not include the handwritten credit limit of"$10,000.00." Further, the block checked as"yes, sign me up" was not checked on the form signed by Fred Stoner and Michael Stoner. The averment that Exhibit"A"is a valid and enforceable contract is a conclusion of law to which no responsive pleading is required. 9. Admitted in part and denied in part. As set forth in paragraph 8, above, which is hereby incorporated by reference,Fred Stoner and Michael Stoner executed a page similar to the first page of Exhibit"A." The remaining averments of this paragraph are conclusions of law to which no responsive pleading is required. 10. Admitted in part and denied in part. It is admitted that at one or more times one of the authorized account users from Stoner Contracting ordered building supplies and materials from Plaintiff. However, Stoner Contracting avers on information and belief that various building supplies and materials which purportedly were ordered on behalf of Stoner Contracting were ordered by persons others than the four persons authorized as account users on the first page of Exhibit"A." Without specific identification and production of supporting documents with respect to each and every item of building supplies and material allegedly ordered on behalf of Stoner Contracting, after reasonable investigation Stoner Contracting is unable to admit or deny that Stoner Contracting ordered any particular building supplies and materials at issue herein, so that these averments are denied and proof demanded.. 11. After reasonable investigation, Stoner Contracting is without knowledge or information sufficient to form a belief as to the specific dates on which its authorized account users made purchases on the Yard Account or ordered any particular building supplies and materials, so that this averment is deemed denied and proof demanded. 12. Admitted in part and denied in part. Stoner Contracting admits on information and belief that its last payment was made on or about December 21, 2011. The phrase in this paragraph averring that Stoner Contracting"continued to make payments"is unclear and imprecise, so that this averment is deemed denied and proof demanded. 13. The averments of paragraph 13 are conclusions of law to which no responsive pleading is required. 14. Admitted in part and denied in part; Stoner Contracting's responses to paragraphs 11 and 12 are hereby incorporated by reference. 15. After reasonable investigation, Stoner Contracting is without information or knowledge sufficient to form a belief as to the truth of the averments of paragraph 15 so that these averments are deemed denied and proof demanded; Stoner Contracting's response to paragraph 10 is hereby incorporated by reference. 16. The averments of paragraph 16 are conclusions of law to which no responsive pleading is required. 17. The averments of paragraph 17 are conclusions of law to which no responsive pleading is required. In further response,nevertheless, Stoner Contracting's responses to paragraphs 10, 21 and the New Matter allegations set forth in paragraphs 47 - 66 are hereby incorporated by reference. 18. The averments of paragraph 18 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,the document identified as Exhibit"A' is a written document which speaks for itself, and Stoner Contracting denies the accuracy and completeness of any attempt by Plaintiff to describe, characterize, or selectively quote therefrom. 19. The averments of paragraph 19 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,the document identified as Exhibit"A' is a written document which speaks for itself, and Stoner Contracting denies the accuracy and completeness of any attempt by Plaintiff to describe, characterize,or selectively quote therefrom. COUNT I—BREACH OF CONTRACT Carter Lumber v. Stoner Contracting Group,LLC Breach of Yard Account Agreement 20. Stoner Contracting hereby incorporates by reference all other paragraphs of this document as if the same were set forth at length herein. 21. Denied. On the contrary, Plaintiff, acting primarily through its authorized agent and employee, Jeff Sibert,undertook a persistent course of conduct not in good faith and not in accordance with any agreement or reasonable commercial standard,whether set forth in the Yard Account Agreement or otherwise. In particular,Plaintiff,primarily through Mr. Sibert, failed to communicate with Stoner Contracting in a timely and meaningful manner, failed to invoice in a timely manner, failed to respond meaningfully and promptly to account questions, and failed to keep Stoner Contracting apprised of the status of its account throughout the course of its dealings with Stoner Contracting. Stoner Contracting further avers on information and belief that Plaintiff,primarily through Mr. Sibert, interacted directly and extensively with Stoner Contracting customers Terry and Claudia Cook regarding selections for their house which was being remodeled without involving a representative of Stoner Contracting in the selection,pricing or ordering process. Mr. Sibert persuaded Mr. and Mrs. Cook to order material beyond their contracted allowance, despite Mr. Sibert knowing the Cook's contract allowance on the items under discussion. Mr. Sibert consistently caused to be shipped excessive materials to the Cook job site and failed to pick up excess shipments in a timely manner. Plaintiff,through Mr. Sibert or others in Plaintiff's billing department, failed to timely,regularly and properly advise Stoner Contracting of the material allegedly being purchased on its behalf through its account and failed to process invoices and credits in a timely and proper manner. Plaintiff charged various materials and supplies to Stoner Contracting's account without those materials and supplies being ordered by any of Stoner Contracting's authorized account users. 22. The averments of paragraph 22 are conclusions of law to which no responsive pleading is required. In further response,nevertheless, Stoner Contracting's response to paragraph 10 is hereby incorporated by reference. 23. The averments of paragraph 23 are conclusions of law to which no responsive pleading is required. In further response,nevertheless, Stoner Contracting's response to paragraph 10 is hereby incorporated by reference. 24. The averments of paragraph 24 are conclusions of law to which no responsive pleading is required. In further response,nevertheless, Stoner Contracting's response to paragraph 10 is hereby incorporated by reference. WHEREFORE, Stoner Contracting demands that Plaintiff's Complaint be dismissed with prejudice and that they be awarded fees, cost of suit and such other and further relief as this Honorable Court deems just and appropriate. COUNT II—BREACH OF CONTRACT Carter Lumber v.Fred E. Stoner&Michael A. Stoner Breach of Personal Guarantees 25.—28. The averments of Count II,paragraphs 25—28, are directed at Defendants other than Stoner Contracting so that no response by Stoner Contracting is required. COUNT III—UNJUST ENRICHMENT Carter Lumber Company,Inc.v.All Defendants 29. The responses to the foregoing paragraphs are incorporated herein as if the same were set forth at length. 30. Admitted in part and denied in part. Stoner Contracting's response to paragraph 10 is hereby incorporated by reference. 31. Admitted in part and denied in part. It is admitted that when Stoner Contracting ordered supplies and materials by its authorized account users it assumed Plaintiff was not providing the supplies and materials gratuitously. With respect to supplies and materials ordered by persons other than Stoner Contracting's authorized account users, after reasonable investigation Stoner Contracting is without information or knowledge sufficient to form a belief as to the truth of these averments so that the same are deemed denied and proof demanded. 32. After reasonable investigation, Stoner Contracting is without information or knowledge sufficient to form a belief as to the truth of the averments describing Plaintiff's reasonable expectations so that these averments are deemed denied and proof demanded. In further response,nevertheless, as set forth in paragraph 31 above, Stoner Contracting assumed that supplies and materials purchased by its authorized account users on its behalf were not supplied gratuitously. 33. The averments of paragraph 33 are conclusions of law to which no responsive pleading is required. In further response, Stoner Contracting denies that it was ever advised that any personal guarantee was required in order to purchase supplies and materials on credit. 34. The averments of paragraph 34 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,without specific identification of the building materials and supplies to which this paragraph refers, after reasonable investigation Stoner Contractor is without information or knowledge sufficient to form a belief as to the truth of the averments so that the averments are therefore deemed denied and p roof demanded. 35. The averments of paragraph 35 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,without specific identification of the building materials and supplies to which this paragraph refers, after reasonable investigation Stoner Contractor is without information or knowledge sufficient to form a belief as to the truth of the averments so that the averments are therefore deemed denied and proof demanded. 36. Admitted in part and denied in part. Stoner Contracting's response to paragraph 10 is hereby incorporated by reference. 37. The averments of paragraph 37 are conclusions of law to which no response is required. In further response,nevertheless,the averments are denied on the basis of the responses set forth in paragraphs 10,21 and 47-66,which are hereby incorporated by reference. 38. The averments of paragraph 38 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,the averments are denied and Stoner Contracting's responses to paragraphs 10 and 31 are hereby incorporated by reference. 39. The averments of paragraph 39 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,the averments are denied and Stoner Contracting's responses to paragraphs 10 and 31 are hereby incorporated by reference. WHEREFORE, Stoner Contracting demands that Plaintiff's Complaint be dismissed with prejudice and it be awarded fees, cost of suit and such other and further relief as this Honorable Court deems just and appropriate. COUNT IV—CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT Carter Lumber Company,Inc.v. Stoner Contracting Group,LLC 40. The averments of the foregoing paragraphs are hereby incorporated by reference as if set forth in full. 41. The averments of paragraph 41 are conclusions of law to which no responsive pleading is required. In further response,nevertheless, as set forth herein,the averments are denied. Stoner Contracting has not wrongfully and without reasonable justification withheld payment from Plaintiff. 42. The averments of paragraph 42 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,the averments are denied and the responses set forth in paragraphs 10,21 and 47-66 are hereby incorporated by reference. 43. The averments of paragraph 43 are conclusions of law to which no responsive pleading is required. WHEREFORE, Stoner Contracting demands that Plaintiff's Complaint be dismissed with prejudice and that it be awarded fees, cost of suit and such other and further relief that this Honorable Court deems just and appropriate. COUNT IV(sic)—ATTORNEYS FEES AND COSTS Plaintiff v.All Defendants 44. The foregoing paragraphs are incorporated by reference as if set forth in full. 45. Denied. Exhibit"A"is a written document which speaks for itself, and Stoner Contracting denies the accuracy and completeness of any attempt by Plaintiff to describe, characterize or selectively quote therefrom. In further response thereto,the response to paragraph 8 is hereby incorporated by reference. 46. The averments of paragraph 46 are conclusions of law to which no responsive pleading is required. In further response, nevertheless, for the reasons set forth herein, and in particular the responses to paragraphs 10 and 21, Stoner Contracting denies the accuracy of Plaintiff's attempt to characterize the nature of this action. WHEREFORE, Stoner Contracting demands that Plaintiff's Complaint be dismissed with prejudice and that it be awarded fees, cost of suit and such other and further relief as this Honorable Court deems just and appropriate. NEW MATTER 47. Count I of the Complaint fails to state a valid claim upon which relief can be granted against Stoner Contracting. 48. Count III of the Complaint fails to state a valid claim upon which relief can be granted against Stoner Contracting. 49. Count IV(Contractor and Subcontractor Payment Act) fails to state a valid claim upon which relief can be granted against Stoner Contracting. 50. Court IV(sic) (Attorneys Fees and Costs) fails to state a valid claim upon which relief can be granted against Stoner Contracting. 51. Stoner Contracting avers on information and belief that the components of Plaintiff's claims against Stoner Contracting relate to no more than three residential building projects. 52. Plaintiff, through its agent, Jeff Sibert,was aware of the material and supply allowances provided for in Stoner Contracting's contract with its customers,Terry and Claudia Cook. 53. On various occasions, Plaintiff,through its agent,Jeff Sibert,met directly with Terry and/or Claudia Cook in order to encourage them to select materials and supplies for the construction project at their residence without representatives of Stoner Contracting being present or involved in the selections. 54. Plaintiff,primarily through Mr. Sibert, caused materials and supplies to be charged to the Stoner Contracting account without the knowledge and consent of Stoner Contracting and without the orders being authorized by one of the four Stoner Contracting authorized account users. 55. Plaintiff,primarily through Mr. Sibert, encouraged Terry and Claudia Cook to purchase materials and supplies exceeding in cost their allowances under their construction contract with Stoner Contracting. 56. Plaintiff,primarily through Mr. Sibert, failed to regularly and timely advise Stoner Contracting of supplies and materials and related quantities and costs being ordered by Terry and Claudia Cook. 57. Plaintiff failed to send timely and accurate invoices to Stoner Contracting with respect to materials and supplies allegedly ordered by it but which were actually being ordered by Terry and Claudia Cook. 58. Plaintiff failed to respond timely and completely to various account questions posed to it by Stoner Contracting. 59. Plaintiff regularly and routinely shipped excessive materials to the Stoner Contracting job site and then failed timely to pick up and remove the excess materials when requested to do so. 60. Plaintiff failed to process credits to Stoner Contracting's account based upon material that should never have been delivered and invoiced in the first place. 61. Stoner Contracting avers on information and belief that Plaintiff compensated its agent,Jeff Sibert,in part, on a commission basis based upon the cost of materials and supplies Mr. Sibert sold. 62. Stoner Contracting avers on infonnation and belief that Mr. Sibert, acting in his capacity as Plaintiff's employee, deliberately encouraged Terry and Claudia Cook to order supplies and materials beyond their allowances in order to generate more personal commission compensation to him. 63. Stoner Contracting avers on information and belief that Mr. Sibert caused excessive materials to regularly be delivered to the Stoner Contracting job site so that he would generate commissions on those alleged sales. 64. Plaintiff failed to act in good faith and in accordance with reasonable commercial standards in its dealings with Stoner Contracting. 65. Stoner Contracting never agreed to any increase in its credit limit beyond $10,000. 66. On the basis of the foregoing and other facts that may be developed through discovery, some or all of Plaintiff's claims maybe barred in whole or in part by the defenses of consent, duress, estoppel, failure/lack of consideration, fraud,illegality,impossibility of performance,justification,laches,payment, statute of frauds, statute of limitations,unclean hands, unconscionability and waiver. Stone Contracting reserves the right to plead and raise such further and additional defenses as may be applicable following discovery and further investigation. WHEREFORE, Stoner Contracting demands that Plaintiffs Complaint be dismissed with prejudice and that it be awarded fees, cost of suit and such other and further relief as this Honorable Court deems appropriate. SAIDIS, SULLIVAN & ROGERS Date: an%3 1— 4 Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717- 243-6222 - Phone 717- 243-6486 - Fax dsullivan@ssr-attorneys.com Attorneys for Stoner Contracting Group, LLC VERIFICATION I, Fred E. Stoner, Member of Stoner Contracting Group, LLC, hereby verify that I am authorized to make this Verification, and that the facts set forth in the foregoing document are true and correct to the best of my knowledge or information and belief I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. F -4 '. Stoner CERTIFICATE OF SERVICE I hereby certify that on this .`*k day of 'cep. r, 2013, a true and correct copy of the foregoing document was served upon the party listed below, via First Class Mail,postage prepaid, addressed as follows: Joshua J. Bovender, Esquire John f. Yaninek, Esquire Thomas, Thomas &Hafer, LLP P. O. Box 999 Harrisburg, PA 17108-0999 SAIDIS, SULLIVAN &ROGERS • Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717-243-6222 - Phone 717- 243-6486 - Fax dsullivan @ssr-attorneys.corn IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CARTER LUMBER COMPANY, Plaintiff No. 13-2125 Civil Term N V. �. STONER CONTRACTING GROUP, LLC, :Z 3- FRED E. STONER and w , MICHAEL A. STONER, rte- ' Defendants x v. TERRY COOK and CLAUDIA COOK, Additional Defendants NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY(20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN 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 PROCEEDWITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUECED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE,PA 17013 1-800-990-9108 717-249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CARTER LUMBER COMPANY, Plaintiff No. 13-2125 Civil Term V. STONER CONTRACTING GROUP, LLC, FRED E. STONER and MICHAEL A. STONER, Defendants V. TERRY COOK and CLAUDIA COOK, Additional Defendants JOINDER COMPLAINT OF STONER CONTRACTING GROUP, LLC AGAINST ADDITIONAL DEFENDANTS TERRY COOK AND CLAUDIA COOK AND NOW,this 24`x' day of January, 2014, comes Third Party Plaintiff/Defendant, Stoner Contracting Group, LLC ("Stoner Contracting"), by its attorneys, Saidis, Sullivan& Rogers, and files the following Joinder Complaint against Additional Defendants Terry Cook and Claudia Cook: Parties 1. Third Party Plaintiff/Defendant Stoner Contracting is a Pennsylvania limited liability company with a business address at 300 Walnut Circle, Shiremanstown, Pennsylvania 17011. 2. Additional Defendants Terry Cook and Claudia Cook are adult individuals, husband and wife, residing at 1366 West Trindle Road, Carlisle, Pennsylvania 17015. (Terry Cook and Claudia Cook will be referred to herein collectively as either"Mr. and Mrs. Cook"or the"Cooks.") 3. Original Plaintiff is Carter Lumber Company, Inc.,which is alleged to be an Ohio-based corporation authorized to conduct business in Pennsylvania with a principal place of business at 601 Pallmadge Road, Kent, Ohio. Background 4. On or about July 6,2011, Stoner Contracting and the Cooks entered into a construction contract for home improvements to be performed by Stoner Contracting at the Cook's residence at 1366 West Trindle Road, Carlisle, Pennsylvania(the"Construction Contract".) A true and correct copy of the Construction Contract is attached hereto as Exhibit"A." The work contemplated to be performed pursuant to the Construction Contract is referred to herein as the"Cook Project." 5. Subsequent to July 6,2011, Stoner Contracting performed work pursuant to the Construction Contract on the Cook Project. 6. The Contract Price identified in the Construction Contract for completion of the work on the Cook Project was $208,898.00. 7. The Construction Contract specifically provided for contract allowances for certain portions of the work, including certain materials and supplies which were to be selected by the Cooks as the Cook Project was underway. 8. During the course of contract performance on the Cook Project,the Cooks identified and designated for use materials and supplies which in many instances exceeded the allowance amounts provided for under the Construction Contract. 9. On numerous occasions,Mr. and Mrs. Cook, or one of them, dealt directly with a representative of Carter Lumber for the purpose of selecting certain materials and supplies for the Cook Project without the involvement of Stoner Contracting. 10. On numerous occasions,the Cooks ordered materials and supplies directly from Carter Lumber for use in the Cook Project without either the Cooks or Carter Lumber advising Stoner Contracting in a timely fashion what had been ordered and at what cost. 11. Materials and supplies ordered by the Cooks directly from Carter Lumber were delivered to the job site, and on at least certain occasions the Cooks (or one of them) confirmed to Stoner Contracting that what was delivered was what they(the Cooks)wanted; on other occasions materials and supplies would be returned to Carter Lumber(often with delays in pick-up)because the materials and supplies or the quantities ordered were not,in fact, for use in the Cook Project. 12. Stoner Contracting proceeded at the direction of the Cooks to install and utilize the materials and supplies the Cooks had ordered in order to keep the construction schedule moving, even though Stoner Contracting had not received any supporting paperwork from either the Cooks or Carter Lumber. 13. Although Carter Lumber delivered various materials and supplies to the Cook Project upon order by the Cooks, and without those materials having been ordered and authorized by Stoner Contracting, Carter Lumber nevertheless charged the cost of these materials and supplies to Stoner Contracting's account and eventually invoiced Stoner Contracting for the materials and supplies ordered by the Cooks. 14. On numerous occasions, once Stoner Contracting had been advised of the cost of the materials and supplies ordered by the Cooks from Carter Lumber as well as from other suppliers, Stoner Contracting advised the Cooks that the materials and supplies they were ordering exceeded the allowances provided for in the Construction Contract. 15. On each occasion on which Stoner Contracting advised the Cooks that the materials and supplies they had ordered exceeded the allowances provided for in the Construction Contract,the Cooks assured Stoner Contracting that what they ordered was what they wanted, and that they would pay the difference between the allowance amount and the actual cost for each item. 16. In addition to materials and supplies that exceeded the allowances set forth in the Construction Contract,the Cooks also made other changes to the Cook Project and directed Stoner Contracting to make changes in the scope of work. 17. The changes and over-allowance items to the Construction Contract as directed by the Cooks,including those materials and supplies ordered by the Cooks from Carter Lumber which Stoner Contracting believes and therefore avers have been charged by Carter Lumber to its account, are summarized and set forth in three documents labeled "Change Orders"which are attached hereto as Exhibit`B." 18. The"Change Order"costs directed by the Cooks,including those materials and supplies ordered by the Cooks from Carter Lumber which Stoner Contracting believes and therefore avers have been charged by Carter Lumber to its account, increased the total project cost by$46,215.00,resulting in a total contract price of$255,113.00. 19. The Cooks have paid Stoner Contracting to date the total amount of $188,230.00,the last payment having been made in and around December 19, 2011. 20. If, in fact, Stoner Contracting is indebted to Carter Lumber for all of the materials and supplies the Cooks ordered directly from Carter Lumber,which Stoner Contracting denies (see par. 26 and Ex. "D,"infra),then the Cooks remain due and owing to Stoner Contracting for work performed under the Construction Contract the sum of $66,883.00,which the Cooks have refused to pay to Stoner Contracting despite demand. 21. The Cooks are in breach of their obligations under the Construction Contract. 22. By approximately mid-January, 2012, Stoner Contracting had substantially performed its obligations under the Construction Contract and was attempting to finalize a punch list with the Cooks of outstanding items or issues. 23. In and around that time,however,the communications between Stoner Contracting and the Cooks began to deteriorate, and only limited progress was made on completion of the punch list. 24. By the end of February,2012,the Cooks had refused to cooperate in preparation of a final punch list,had refused to allow Stoner Contracting access to the job site to complete any work, and had stopped communicating with Stoner Contracting except through their attorney. The Carter Lumber Lawsuit 25. On or about December 5, 2013, Carter Lumber filed a Complaint against Stoner Contracting, Fred E. Stoner and Michael A. Stoner alleging,in part, that Stoner Contracting had failed to pay its account with Carter Lumber,which was comprised primarily of materials and supplies pertaining to the Cook Project. A true and correct copy of the Complaint is attached hereto as Exhibit"C." For purposes of background only,the allegations of that Complaint are incorporated herein by reference without adoption by Stoner Contracting as its own allegations. 26. On or about December 26, 2013, Stoner Contracting filed its Answer with New Matter to the Carter Lumber Complaint. A true and correct copy of this pleading is attached hereto as Exhibit"D"and incorporated herein by reference. 27. On or about December 26,2013,the other defendants sued by Carter Lumber, Fred E. Stoner and Michael A. Stoner, also filed an Answer with New Matter to the Carter Lumber Complaint. A true and correct copy of this pleading is attached hereto as Exhibit`B." 28. Of the total amount claimed by Carter Lumber from Stoner Contracting in its lawsuit, ($60,474.53), Stoner Contracting believes and therefore avers that the prevailing component of this total claim, $52,549.34,represents charges for materials and supplies used and incorporated in the Cook Project. 29. Stoner Contracting believes and therefore avers that a substantial portion of the materials and supplies for which a claim has been made against it by Carter Lumber represents materials and supplies which were ordered directly by the Cooks from Carter Lumber for use in the Cook Project and were not ordered or authorized by Stoner Contracting. 30. At this time and until Stoner Contracting has an opportunity for discovery and further investigation,it is unable to identify with specificity those materials and supplies, and the associated cost of the those materials and supplies,which Carter Lumber is asserting as the unpaid obligation of Stoner Contracting and which Stoner Contracting believes were ordered directly from Carter Lumber by the Cooks. 31. Stoner Contracting believes and therefore avers that the overwhelming component of the amount claimed by Carter Lumber from Stoner Contracting in its lawsuit represents the cost of materials and supplies which : (a) have been used and included in the Cook Project,having been ordered at least in part directly by the Cooks; (b) have substantially benefitted the Cooks because the materials and supplies were incorporated into the Cook Project, and (c) have not been paid for by the Cooks, either to Stoner Contracting or directly by them to Carter Lumber. 32. The causes of action asserted by Stoner Contracting herein against the Cooks arise out of the transaction or occurrence or series of transactions or occurrences upon which the underlying cause of action by Carter Lumber against Stoner Contracting is based. 33. The amount claimed by Stoner Contracting herein exceeds the amount requiring reference to compulsory arbitration. COUNT I -BREACH OF CONTRACT 34. The averments of paragraphs 1 —33 are hereby incorporated by reference as if set forth in full. 35. The Cooks are solely liable to Carter Lumber for all or a portion of that amount claimed by Carter Lumber against Stoner Contracting which is based on materials and supplies utilized in the Cook Project. 36. The exact amount of Carter Lumber's claim against Stoner Contacting for which the Cooks are solely liable cannot be identified by Stoner Contacting specifically at this time, and requires an opportunity for discovery and further investigation. 37. The Cooks are also liable to or with Stoner Contracting for any amount of Carter Lumber's claim against Stoner Contracting which is based on materials and supplies utilized in the Cook Project and for which the Cooks are not solely liable to Carter Lumber. 38. The Cooks are further liable to Stoner Contracting for all unpaid amounts due and owing to Stoner Contracting under the Construction Contract, as modified by the "Change Orders"directed by the Cooks,whether for materials and supplies provided by Carter Lumber and utilized in the Cook Project or otherwise. WHEREFORE, Stoner Contracting demands judgment against Terry and Claudia Cook,jointly and severally, as follows: (a) judgment that Terry and Claudia Cook,jointly and severally, are solely liable to Carter Lumber for that amount claimed by Carter Lumber against Stoner Contracting which is based on materials and supplies utilized in the Cook Project and for which Terry and/or Claudia Cook ordered the materials and supplies directly from Carter Lumber without authorization or knowledge by Stoner Contracting,which amount cannot be set forth with specificity at this time for the reasons set forth herein; (b) judgment that Terry and Claudia Cook,jointly and severally, are liable to or with Stoner Contracting for any amount of Carter Lumber's claim against Stoner Contracting which is based on materials and supplies utilized in the Cook Project for which the Cooks are not solely liable to Carter Lumber,which amount cannot be set forth with specificity at this time for the reasons set forth herein; (c) judgment in favor of Stoner Contracting against Terry and Claudia Cook,jointly and severally, for all unpaid amounts due and owing to Stoner Contracting under the Construction Contract, as modified by the "Change Orders"directed by the Cooks,whether for materials and supplies provided by Carter Lumber and utilized in the Cook Project or otherwise; and (d) interest, costs of suit and such further and additional relief as deemed appropriate by this Honorable Court. COUNT II—UNJUST ENRICHMENT/QUANTUM MERUIT 39. The averments of paragraphs 1 —38 are hereby incorporated by reference as if set forth in full. 40. In the alternative,in the event that the Cooks are not liable for contract-based damages,the Cooks are nevertheless liable under the doctrine of unjust enrichment/quantum meruit. 41. At the request and direction of the Cooks, either to Stoner Contracting or to Carter Lumber, Stoner Contracting and Carter Lumber supplied materials, supplies and services to the Cooks with a reasonable value of$255,113.00,which the Cooks knowingly and voluntarily accepted and retained. 42. At this time Stoner Contracting is unable to identify with specificity the reasonable value of the materials and supplies supplied by Carter Lumber for which the Cooks are solely and directly liable, and requires an opportunity for discovery and further investigation. 43. The Cooks' acceptance,retention and use of the supplies,materials and services supplied to the Cook Project created an obligation whereby the Cooks are obligated to pay Stoner Contracting and Carter Lumber(in proportionate amounts to be determined) the reasonable value of the supplies,materials and services utilized in the Cook Project. 44. The Cooks have directly and knowingly benefitted from the materials, supplies and services provided to the Cooks in the Cook Project,but have paid only $188,230.00 to Stoner Contracting. 45. Having knowingly and voluntarily accepted and retained the materials, supplies and services supplied to the Cook Project,the Cooks would be unjustly enriched if they were not required to pay Stoner Contracting and Carter Lumber(in proportionate amounts to be determined)the unpaid reasonable value of said materials, supplies and services, said amount being$66,883.00. 46. As a result of the Cooks' unjust enrichment,the Cooks are obligated to pay to Stoner Contracting and Carter Lumber the sum of$66,883.00,to be paid in proportionate amounts to be determined. WHEREFORE, Stoner Contracting demands judgment against Terry Cook and Claudia Cook,jointly and severally, in the amount of$66,883.00,to be paid to Stoner Contracting and Carter Lumber in proportionate amounts to be determined,together with interest, costs of suit and such further and additional relief as this Honorable Court deems appropriate. COUNT III—PROMISSORY ESTOPPEL 47. The averments of paragraphs 1 —46 are hereby incorporated by reference as if set forth in full. 48. In the alternative,in the event that the Cooks are not liable for contract- based damages,the Cooks are nevertheless liable under the doctrine of promissory estoppel. 49. The Cooks promised to pay Stoner Contracting and Carter Lumber for the materials, supplies and services provided with respect to the Cook Project. 50. The Cooks should have reasonably expected that their promises would induce Stoner Contracting and Carter Lumber to undertake action, i.e.,to provide materials, supplies and services with respect to the Cook Project. 51. Stoner Contracting did, in fact,undertake action in the form of providing materials, supplies and services with respect to the Cook Project in reliance on the Cooks' promises. 52. Stoner Contracting believes and therefore avers that Carter Lumber did,in fact,undertake action in the form of providing materials and supplies to the Cook Project in reliance on the Cooks' promises. 53. The value of the materials, supplies and services provided by Stoner Contracting and Carter Lumber in reliance on the Cooks' promises is $255, 113.00,but to date the Cooks have paid only $188,230.00 to Stoner Contracting. 54. Injustice can be avoided only by enforcing the promises of the Cooks to pay Stoner Contracting and Carter Lumber(in proportionate amounts to be determined) for the materials, supplies and services provided with respect to the Cook Project. 55. The value of the materials, supplies and services provided by Stoner Contracting and Carter Lumber which have not been paid by the Cooks at this time is $66,883.00. WHEREFORE, Stoner Contracting demands judgment against Terry Cook and Claudia Cook,jointly and severally, in the amount of$66,883.00,to be paid to Stoner Contracting and Carter Lumber in proportionate amounts to be determined,together with interest, costs of suit and such further and additional relief as this Honorable Court deems appropriate. SAIDIS, SULLIVAN & ROGERS Date: January 24, 2014 Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717- 243-6222 - Phone 717- 243-6486 - Fax dsullivan a,ssr-attorneys.com Attorneys for Stoner Contracting Group, LLC VERIFICATION I, Fred E. Stoner, Member of Stoner Contracting Group, LLC, hereby verify that I am authorized to make this Verification, and that the facts set forth in the foregoing document are true and correct to the best of my knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904,relating to unsworn falsification to authorities. ('Fr E. toner CERTIFICATE OF SERVICE I hereby certify that on this 24`h day of January, 2014, a true and correct copy of the foregoing document was served upon the party listed below, via First Class Mail, postage prepaid, addressed as follows: Joshua J. Bovender, Esquire John F. Yaninek, Esquire Thomas, Thomas & Hafer, LLP P. O. Box 999 Harrisburg, PA 17108-0999 SAIDIS, SULLIVAN & ROGERS Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717-243-6222 - Phone 717- 243-6486 - Fax dsullivan(ir),ssr-attorneys.com Exhibit "A" ,=*MW=- ;l Contracfing .Gyroup, LLC Construction Contract This agreement is made on the date written above our signatures between Contractor Name: Stoner Contracting Group LLC(Contractor)and Owner Name:Terry&Claudia Cook(Owner). Contractor Contractor Name: Stoner Contracting Group LLC Address: 300 Walnut Circle City: Shiremanstown, State:Penns lv vania Zip:17011 Work Phone Number:(717 73) 7-5326 Fax Number: dl 7)737-5327 Email Address: stonercontractgrp(i�comeast.net License Number:#PA8550 Contractor Name: Stoner Contracting;Group LLC will be referred to as Contractor throughout this agreement. Owner Owner Name:Terry&Claudia Cook Address: 1366 West Trindle Road City: Carlisle, State:Penn is yania Zip: 17015 Day Phone Number: (717)795-0791 Owner Name: Terry&Claudia Cook will be referred to as Owner throughout this agreement. The Construction Site Address: 1366 West Trindle Road City: Mechanicsburg,Pennsylvania Zip: 17015 I. Project Description A. For a price identified below,Contractor agrees to complete home improvements(identified as the Project in this agreement)for Owner. ➢ See Attached Proposals 11. Contract Price A. In addition to any ether charges specified in this agreement, Owner agrees to pay Contractor $208,898.00 for completing the Work described as the Project. M. Allowances A. This Contract Price includes an allowance for an item to be selected later by Owner. 1. $9.00 allowance per square foot for sticky stone around the base of house&front porch. 2. $75.0075.00 allowance per square for vinyl sidingsquare for vinvl sidang. 300 Walnut Circle,Shiremanstown,PA.17011 • Phone: 717-737-5326 • Pax:717-737-5327! Email: stonercontractgrp @ comcast.nef 3. $135.00 allowance per toilet. 4. $300.00 allowance for cast iron tub. 5. $150.00 allowance for Master Bath Room shower faucet. 6. $100.00 allowance for Master Bath Room tub faucet. 7. $50.00 allowance per Bath Room sink faucet. 8. $100.00 for Kitchen sink faucet. 9. $200.00 allowance for Kitchen Sink 10. $100.00 per Guest Bath Room tub/shower faucet. 11. $3.00 per square foot for prefinished hardwood flooring. 10. $4.00 per square foot for tile to be installed in Master Bath Room, Guest Bathroom,Laundry, and Foyer. 11. $2.00 per square foot for tile in the shower. 12. $320.00 for Kitchen Cabinet Hardware. 13. $42.00 for Bath Room Cabinet Hardware. 14. $150.00 per Front Porch post/column. 15. $60.00 per oval mirrors in Bath Rooms. 16. $50.00 per medicine cabinets in Bath Rooms. 16. $20.00 per Bath Room accessories in Bath Rooms. Installation will be by Contractor at a cost included in the Contract Price. The allowance price covers the cost of: Materials Taxes III. Scheduled Start of Construction A. Work under this agreement will begin within after the following contingencies have been met. 1. Stoner Contracting Group LLC Receives the Building Permit from Silver Springs Township. IV. Scheduled Completion of Construction A. Work under this agreement will be Substantially Complete within approximately 5 Months after the date construction begins. V. Documents Incorporated A. This agreement incorporates by reference certain disclosures and notices required by federal and state law.The following documents are incorporated as though included in full as part of this agreement. Notice of Right to Cancel under Regulation Z VI. Scope of Work A. Contractor shall supervise and direct the Work and accepts responsibility for construction means, methods,techniques,sequences and procedures required to complete the Project in compliance with the Contract Documents. B. Except for materials expressly designated otherwise in the Contract Documents,Contractor warrants that all materials and equipment furnished under this contract shall be of good quality and new. VII. Cutting and Patching A. The color,texture and planes between existing and new materials might not match exactly. Contractor will use due diligence to create the best match possible. Owner acknowledges that patched surfaces may be detectable when construction is complete. VIII. Compliance with Law A. Contractor and Owner mutually commit to use reasonable care to meet the Requirements of state, - federal and local Law when discharging their responsibilities under this agreement. IX. Owner's Responsibilities A. Owner shall have sole responsibility to secure financing for the Project and shall pay all fees, charges, or other costs of such financing,including Inspection fees charged by any lender.The nonperformance of any lender shall not affect the obligation of Owner to Contractor. Owner hereby authorizes and directs any lender on the Project to fiun.ish Contractor with full information on undisbursed loan proceeds when requested by Contractor. B. Owner will not interfere with or permit others to interfere with,stop,hinder,or delay completion of the Work by Contractor or Subcontractors except as provided under this agreement. X. Representations by Contractor A. Owner has reported to Contractor all conditions known to Owner which may not be apparent to Contractor and which might significantly increase cost of the Work or delay completion. These concealed conditions include,but are not limited to,hazards on the Job Site,unsuitable soil conditions, prior Defective Work of others,latent Defects in the Plans or Specifications,earlier attempts to do Similar or related Work,and obligations imposed by government. M. Disclaimer by Owner,Reliance by Contractor A. Owner has provided Contractor with information on subsurface or concealed conditions at the Job Site. Except to the extent that Contractor knows this information to be false,Contractor is entitled to rely on the accuracy of this information. X11. Discrepancy Between Plans and Field Conditions A. if any concealed structure,water,power,waste, drain or gas line is uncovered or revealed during construction which is not as indicated in the Contract Documents or is inconsistent with information provided by Owner, Contractor shall promptly,and before any such structure or line is disturbed or damaged(except in an Emergency),notify Owner.Contractor shall submit a Claim for a Change Order which covers the additional cost incurred as a result of-such structure,water,power,waste,drain,or gas line uncovered or revealed during construction. XHL Differing Site Conditions A. Contractor shall promptly,and before the conditions are disturbed,give a written notice to Owner on encountering unforeseeable conditions adversely affecting the Work.Owner shall investigate the site conditions promptly after receiving notice.If the conditions cause an increase in cost to Contractor or the time required for performing any part of the Work and were not reasonably foreseeable by an experienced Contractor,an equitable adjustment shall be made under this clause and the contract modified in writing accordingly. B. If concealed or unanticipated conditions require a change in the Plans or Specifications,Owner will issue a Change Order modifying the Contract Documents,Contract Price and Contract Completion Date, if any. C. Anything in this contract notwithstanding,Contractor is entitled to rely on express or implied representations concerning site conditions made by Owner and those employed by Owner regardless of whether those representations are made in Contract Documents or otherwise. 301V. Payment Plan A. Owner will pay to Contractor the Contract Price in installments consisting of an initial payment, progress payments,and a final payment on completion of the Work. XV. Initial Payment A. One initial payment is due with the signed Construction Agreement, Owner shall pay to Contractor U.O. B. The initial payment is refundable to Owner, less actual cost to Contractor,if Owner is not able to obtain a commitment for construction financing in an amount adequate to complete the Work. XVI. Progress Payments A. Schedule of Progress Payments 1. The draw schedule is to be determined by Ag Choice Farm Credit. B. Processing of Progress Payments 1. No less than 2 Calendar Days before each progress payment is due under the terms of this contract, Contractor shall provide Owner with an application for payment(invoice)in a form which complies with generally accepted trade practice. 2. Except as provided otherwise in this agreement, Owner shall pay the amount due within 15 Calendar Days after approval of any application for initial,progress or final payment XVII. Contract Allowances A. The Contract Price includes the sum of all contract allowance items identified in this agreement. The price listed for each contract allowance item is a preliminary estimate made before actual selection by Owner of the item to be installed.Contractor makes no representation that purchase and Installation of any contract allowance item can be performed for the contract allowance price. Cost to Owner for any contract allowance item may be more or less than the contract allowance price. B. If the cost to Contractor for a contract allowance item is more or less than the allowance price,the Contract Price shall be adjusted for the difference by a Change Order. C. Selection by Owner of contract allowance items shall be submitted in writing to Contractor. At the request of Contractor, Owner shall verify selection of each contract allowance item with the Material Supplier and provide Contractor with confirmation that the order is correct. D. If selection of any contract allowance item by Owner delays the Work,the Contract Completion Date shall be extended by the equivalent of the delay and Contractor shall be entitled to recover for the cost of delay,including liquidated damages, shutdown or startup expense,lost profits,or consequential damages. XV 111. Interest A. Payments due and not paid under the Contract Documents shall bear interest from the date payment is due at an annual rate of 1.5%percent. B. When payment is withheld pending settlement of a bona fide dispute on the quantity,quality,or timeliness of the Work,interest shall accrue only on the amount ultimately paid. C. Payment of interest does not abrogate or replace any other rights Contractor may have under this agreement. D. Any interest which remains unpaid at the end of any 30-Calendar Day period shall be added to the principal amount due and thereafter shall accrue interest at the same rate as the principal. XIX. Insurance A. General Requirements 1. Contractor shall carry workers'compensation insurance and public liability insurance as required by Law and regulation for the protection of Contractor and Owner during progress of the Work. Compliance with the Home Improvement Consumer Protection Act (1)This contract is legible.(2)This contract includes the signature of Owner and spouse(or authorized agent)and Contractor(or authorized salesperson).(3)This contract contains the entire agreement between Owner and Contractor for the Project,including attached copies of all required notices. (4)This contract shows the date the contract was signed. (5)When this contract is signed,a signed copy of this agreement will be provided to Owner at no charge and with all required notices. (6)This contract includes the registration number of Contractor.(7)This contract includes a three-day right of rescission: An individual signing a home improvement contract,except as provided in the emergency provisions of Section 7 of the act known as the Unfair Trade Practices and Consumer Protection Law(Title 73 Pennsylvania Statutes § 201 et seq.),shall be permitted to rescind the contract without penalty regardless of where the contract was signed,within three business days of the date of signing. (8)This contract shows the toll-free telephone number of the Bureau of Consumer Protection in the Office of Attorney General which is 1-888-520-6680. Contractor carries insurance coverage with the policy limits identified below and agrees to maintain: (1) Liability insurance covering personal injury in an amount not less than$50,000,and(2)Insurance covering property damage caused by the work of a home improvement contractor in an amount not less than$ 50,000. Current property damage insurance policy limits.$1,000,000.00 Current public liability insurance policy limits:$1.000.000.00 Signatures This contract is for immediate acceptance.Any delay in acceptance beyond July 6,2011 will require renegotiation of the terms of this agreement. This agreement is entered into as of the date written below. Ow ame�Te Claudia Cook,Owner / /Zdlf (Signs e) (Date) (Printed Name) l l,�2at (Signs e) (Date) (Printed Name) Contract r Name: Stoner Contracting Groun LLC,Contractor (Si/g}nature) f, (Date) /N-Sk J- (Printed Name and Title) NOTICE OF RIGHT TO CANCEL UNDER REGULATION Z To: Owner Re: Your right to cancel Project You are entering into a transaction that will result in a security interest being placed on your home. You have a legal right under federal law to cancel this transaction,without cost,within three business days from whichever of the fallowing events occurs last: (1)The date of the transaction,which is / / ,or (2)The date you receive your Truth in Lending disclosures,or (3)The date you receive this notice of your right to cancel. If you cancel this transaction,the security interest is also cancelled. Within 20 calendar days after we receive your notice,we must take the steps necessary to reflect the fact that the security interest on your home has been cancelled,and we must rerun to you any money or property you have given us or to anyone else in connection with this transaction. You may keep any money or property we have given you until we have done the things mentioned above,but you must then offer to return the money or property.If it is impractical or unfair for you to return the property,you must offer its reasonable value.You may offer to return the property at your home or at the location of the property.Money must be returned to the address below.If we do not take possession of the money or property within 20 calendar days of your offer,you may keep it without further obligation. How to cancel: If you decide to cancel this transaction,you may do so by notifying us in writing at: Contractor Name: Stoner Contracting Group LLC Address:300 Walnut Circle City: Shiremanstown, State:Pennsylvania Zip: 17055 You may use any written statement that is signed and dated by you and states your intention to cancel,or you may use this notice by dating and signing below.Keep one copy of this notice because it contains important information about your rights. If you cancel by mail or telegram,you must send the notice no later than midnight of (midnight of the third business day following the latest of the three events listed above). If you send or deliver your written notice to cancel some other way,it must be delivered to the above address no later than that tune. I WISH TO CANCEL. Signature Date Stoner Contracting Group, LLC Job Number. 02-382 License#:PA8550 .lab Name: Additions&Remodeling Address:I Client Cook,Terry 300 Walnut Circle Site Address: Shiremanstown,PA,17011 1366 W Trindle Rd Phone: 717-737-5326 Carlisle,PA,17015 Fax: 717-737-5327 Job Contacts Sales Person: Darin Waybright Phone: 717-737-5326 Mobile: 717-602-9868 Email: dwaybdght@hotmail.com Project Manager: Mike Stoner Phone: 717-737-5326 Mobile: 717-443-9783 Email: wstonerl @comcast.net General:Conditions General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 1.00 EA Provide Building Permits&Plan Review 80.00 HR Daily Setup&Job Site Clean Up 4.00 HR Final Clean Up 1.00 EA Construction Waste Disposal 30 yard dumpster. Site Work­_....... General Type: General Requirements Level:Other -Note: Unit Qty Unit Description Notes 1.00 EA Provide Excavation&Site Work as Specified per Plan `Any extra rock breaking& removal above what is considered to be"normal" will be extra. Demolition.'-.- - General Type: General Requirements Level:Other Note- Unit Qty Unit Description Notes 600.00 SF Demo Deck Components 8.00 LF Demo Entire Exterior Walt `Around existing front door. 2668.00 SF Demo Siding *Includes detached garage. 264.00 SF Demo Wall Sheathing `Only where new master bedroom&office/den will attach to existing house so new drywall can be installed on those sections. 3.00 EA Demo Exterior Door 1.00 EA Demo-Rear Patio Door 12.00 EA Demo Window 320.00 LF Demo Soffit,Fascia&Gutter(1st Floor) `Includes detached garage. 132.00 SY Demo Carpet&Pad 0.00 SF Demo Vinyl Flooring&Underiayment 'No charge assuming can go over with new flooring (ceramic file or hardwood). 182.00 SF Demo Drywall from Existing Walls `Where cement board will need to be installed for the on walls(shower& above/around both tubs). Job: Initials: 1 Pages:2 of 12 610.00 LF Demo Casing *From windows,exterior doors,&interior doors. 550.00 LF Demo Base Trim 12.00 EA Demo Interior Door 104.00 LF Demo Interior Wall 12.00 EA Demo Electrical Switches&Outlets *Approx.B outlets&4 switches. 16.00 LF Demo Cabinetry-Including Countertops 4.00 EA Demo Plumbing Fixtures *Existing kitchen sink, toilet,tub/shower faucet,& bath sinks. 1.00 EA Disconnect&Relocate Appliances `Refridgerator. 2.00 EA Demo Medicine Cabinet 2.00 EA Demo Wall Mounted Mirror 2.00 EA Demo Tub&Shower Surround Concrete General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 1.00 EA Supply&Install Footer according to Plan *For under master bedroom&office/den additions. 1.00 EA Supply&Install Concrete Rear Patio *Concrete rear patio. 1.00 EA Supply&Install Front Porch *Includes footers, toundation,stone,&slab. 1.00 EA Supply&Install Foundation Walls *Includes waterproofing. 474.00 SF Supply&Install a Slab on Grade Platform for Crawl Spaces 546.00 SF Supply&Install Cultured Stone-Exterior `Includes$9/SF for sticky stone. Around base of house&front parch. 1.00 EA Schedule&Attend Required Inspection Framing General Type: .General Requirements Level:Other Note: Unit Qty Unit Description Notes 22.00 LF Supply&Install Structural Beams&Columns as Specified per Plan on *Substitute vinyl/pvc Front Porch support pasts in place of HB&G columns called out on plan. 30.00 LF Supply Structural Lam Beam Header as Specified 33.00 LF Attach Ledger Board to Wood Joists Job: Initials: / Pages:3 of 12 87.00 LF Supply&Install Treated Sill Plate over Sill Sealer 54.00 LF Supply&Install Rim Joist 10.00 EA Supply&Install 2 x 10 Floor Joists-16 On Center-14 Ft 12.00 EA Supply&Install 2 x 10 Floor Joists-16 On Center-19 Ft 17.00 SHT Supply&Install 23/32 T&G OSB Sub Floor-Glued&Fastened 38.00 LF Walls to be Framed with 2 x 4-8 Foot Studs-16 on Center 1.00 EA Wall Comers Framed with 2 x 4 -8 Foot Studs 75.00 LF Walls to be Framed with 2 x 6-8 Foot Studs-16 on Center 4.00 EA Wall Comers Framed with 2 x 6 Studs-8 Foot Studs 9.00 EA Window Opening Framed as Specified 1.00 EA Door Opening Framed as Specified 'Master bedroom to patio. 148.00 SF Supply&Install Exterior Soffits 67.00 SF Supply&Install Interior Soffits .23.00 SHT Supply&Install Exterior Wall Sheathing-7116Inch OSB 690.00 SF Supply&Install TYVEK®Type or Equivalent Wall Covering 23.00 EA Supply&Install Engineered Trusses-24 on Center `Includes crane. 362.00 SF Supply&Install(Eland Framing)2 x 10 Rafters-16 on Center 225.00 SF Supply&Install 2 x 6 Ceiling Joists-16 on Center 38.00 SHT Supply&Install 112 OSB Roof Sheathing 143.00 LF Supply&install Sub-Fascia on All Eaves 160.00 LF Frame Soffit&Fascia as Specified on Gables 1.00 EA Schedule&Attend Required Inspection Roofing General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 32.00 SQ Tear off Existing Roofing Down to Roof Decking *Includes detached garage. 350.00 LF Supply&Install Ice&Water Shield per Code *Includes detached garage. 39.00 SQ Supply&Install #15 Felt Paper over Roof Decking *Includes detached garage. 438.00 LF Supply&Install Painted Drip Edge as Specified *Includes detached garage. 51.00 SQ Supply&Install 30 Year Shingles *Includes detached garage. 140.00 LF Supply&Install a Continuous Ridge Vent *Includes detached garage. 140.00 LF Supply&Install Ridge Cap *Includes detached garage. Job: Initials: / Pages:4 of 12 2.00 EA Supply&Install Sewer Stack or PVC Boot 160.00 LF Supply&Install Aluminum Gutters as Specified 'Includes all hangers,end caps,comers,and fasteners. Includes detached garage. 70.00 LF Supply&Install Aluminum Downspouts *Includes all brackets, elbows,outlets,and fasteners. Includes detached garage. 35.00 LF Supply&Install Aluminum Downspout Extensions *Includes all brackets, elbows,and fasteners. Includes detached garage. Siding General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 3488.00 SF Supply&Install Vinyl Horizontal Siding *Includes allowance of$75 SQ for vinyl siding. Includes detached garage. 36.00 LF Supply&Install Starter Strip *Includes detached garage. 10.00 EA Supply&Install Outside Comers *Includes detached garage. 2.00 EA Supply&Install Inside Corners 28.00 EA Supply&Install J-Channel Around Window and Door Perimeters *Includes detached garage. 42.00 EA Supply&Install J-Channel at Top of Wall Under Soffit *Includes detached garage. 465.00 LF Supply&Install 12 Inch Vinyl Solid Soffit Under Front Porch&Rear Patio 464.00 LF Supply&Install 12 inch Vinyl Soffit *includes detached garage. 10.00 EA Supply&Install Aluminum Return Boxes *Includes detached garage. 47.00 LF Supply&Install Aluminum Around Front Porch Beams 464.00 LF Supply&Install 6 Inch Aluminum Fascia *Includes detached garage. 0.00 LF Supply&Install 6 Inch Aluminum Fascia Andersen.Windows General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 1.00 EA Supply and Install Andersen Windows as Specified per Plan *Andersen 200 Series Tilt Wash windows,except 2 venting awnings for master bedroom. Job: Initials: f Pages;5 m 12 Windows........., General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 1.00 EA Supply&Install a 10 Inch Solatube `In guest bath. Installed Windows General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 4.00 EA Installation Labor for Cutting New Opening&Installing New Header *For new locations of windows in back side comer of great room,triple window behind kitchen, single window above toilet, and twin window above master tub. All other should fit with minor modifications. 18.00 EA Installation Labor for Capping Window Trim with Aluminum 3.00 EA Provide Aluminum Trim Coil for Capping Window Trim as Specified Doors .................. . General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 1.00 EA Supply&Install-a Pre-Hung Embossed Fiberglass Entry Door with *Includes single sidelite Panel Glass with front door. Matches front of Jeld-Wen exterior door catalog with oil rubbed bronze hinges. 2.00 EA Supply&Install a Pre-Hung Fullview Fiberglass Entry Door *1 behind kitchen&1 in master bedroom. 3.00 EA Supply Supply&Install a Double Pre-flung Paneled Paint Grade *1 for coat closet,1 for bed Hollow Core Door 1 closet,&1 for bed 2 closet. 8.00 EA Supply&Install a Pre-Hung Paneled Paint Grade Hollow Core Door 1.00 EA Supply&Install a Double Pre-Hung Interior French Door with Divided *Office/Den. Lights 2.00 EA Supply&install 1/2 HP Opener with Two Transmitters *1 wall module&1 remote per opener. 2.00 EA Supply&install Steel Raised Panel Overhead Door(9 X 7) *Insulated. 3.00 EA Supply&Install Exterior Lockset&Single Side Deadbolt *1 for front door, 1 for master bedroom door to patio,&1 for door behind kitchen to patio. 10.00 EA Supply&Install a Standard Interior Lockset as Specified Job: Initials: ! Pages:6 of 12 6.00 EA Supply&Install Dummy Lockset as Specified *2 per each closet(coat closet,bed 1 closet,&bed 2 closet). Installed-.Doors--- . ... .. General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 2.00 EA Installation Labor to Cut New Openings&Install Header 'From new master bath into new master bedroom& from new great room into new office/den. Plumbing.... General Type: General Requirements Level:Other Note: Unit Oty Unit Description Notes 1.00 EA Provide Plumbing as Specified per Plan 2.00 Fes+ Plumbing Allowance-Toilet *-Includes allowance of $135 for per toilet with best flush power rating. 2.00 EA Plumbing Allowance-Cast Iron Tubs _ *Includes allowance of ___ $300 per cast iron tub. 4.00 EA Plumbing Allowance-Bath Sink Faucets *Includes allowance of$50 per bath sink faucet. 1.00 EA Plumbing Allowance-Kitchen Sink Faucet *inlcudes allowance of $100 per kitchen sink faucet. .1.00 EA Plumbing Allowance-Guest Bath Tub/Shower Faucet *Includes allowance of $100 per guest bath tub/shower faucet. 1.00 EA Plumbing Allowance-Master Bath Shower Faucet *lnicudes allowance of $150 per master bath shower faucet. 1.00 EA Plumbing Allowance-Master Bath Tub Only Faucet *Iniudes allowance of $100 per master bath tub faucet. 1.00 EA Plumbing Allowance-Kitchen Sink 'Includes allowance of $200 for kitchen sink. 1.00 EA Supply Plumbing Permit as Specified 1.00 EA Install Owners Dishwasher-Includes New Piping *Customer responsible for purchasing new dishwasher. 1.00 EA Install Water Line to Refrigerator&Connect 1.00 EA Supply&Install Insinkerator Septic Assist Garbage Disposal w/out Sink 1.00 EA Supply&Install Water Softening System Job: Initials: / Pages:7 of 12 1.00 EA Schedule&Attend Required Inspection HVAC : :- General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 1.00 EA Provide HVAC as Specified per Plan 'Includes tankless hot water heater. 1.00 EA Schedule&Attend Required Inspection Electrical_ General Type: General Requirements Level:Other Nate: Unit Qty Unit Description Notes 1.00 EA Provide Electrical as Specified per Plan 1.00 EA Supply Electrical Permit as Specked 1.00 EA Schedule&Attend Required Inspection Insulation General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 1.00 EA Provide Insulation as Specified per Plan 1.00 EA Schedule&Attend Required Inspection Drywall .. General Type: General Requirements Level:Other (Vote:. Unit Qty Unit Description Notes 1.00 EA Provide Drywall as Specified per Plan Job: Initials: ! Pages:8 of 12 Flooring General :. Type: General Requirements Level:Other W. : . Note: Unit Qty Unit Description Notes 1850.00 SF Supply&Install Prefinished Wood Flooring *Includes$3/SF for prefinished hardwood flooring. To be installed everywhere in house where file is not being installed. Tile&Stone.:...-,.-..-.. :... .: :.. General Type: General Requirements Level:Other -Note: Unit Qty Unit Description Notes 32.00 SF Supply&install Anti-Fracture Membrane `Master tiled shower. 32-00 SF Prep Shower Floor,Build Curb&Tile Curb 'Master tiled shower. 288.00 SF Supply&Install Floor Tile-Cement Board Base :Includes$4/SF for tile. To be installed in master bath,guest bath,laundry, and foyer. 122.00 SF Supply&Install In-Floor Heating 1.00 LF Supply&Install Sanitary Base 145.00 SF Supply&Install Tile with a Concrete Backer Board on Shower Walls `In master bath shower. Includes$2/SF for tiles for shower. 1.00 Fro Supply&Install a Tiled Shampoo Niche 1.00 EA Supply&install Bullnose for Shower Door Jamb 'In master bath. 80.00 SF Supply&Install Tile with Concrete Backer Board in Tub Surround 'Above tub in guest bath. 30.00 SF Supply&install Standard Wail Tile 'Above tub in master bath. 14.00 SF Supply&install Tile Backsplash `Above kitchen countertops. 1.00 EA Supply&Install Soap Dish or Shampoo Shelf 1.00 Fro Supply&Install Threshold .. . ........ Cabinets..-.....:: General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 1.00 EA Provide Kitchen Cabinets as Specified per Plan 'Includes undermount sinks. Includes allowance of$320 for hardware. Job: Initials: / Pages:9 of 12 1.00 Flt Provide Cabinets as Specked per Plan `For master bath,guest bath,&laundry. Includes allowance of$42 for hardware for each bathroom. Countertops:-.:-.,.-"""*-..'--.:.,"::"--- General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 1.00 EA Provide Hard Surface Guest Bath Countertops as Specified per Plan 1.00 EA Provide Hard Surface Master Bath Countertops as Specified per Plan 1.00 EA Provide Hard Surface nchen Countertops as Specified per Plan Finish Carpent General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 4.00 EA Supply&Install Decorative Columns 'Front porch. Includes allowance of$150 per posvcolumn. 475.00 LF Supply&Install 3-114"Paint Grade Base Trim 826.00 LF Supply&Install 2-114"Paint Grade Casing 65.00 LF Supply&Install 3-114"Paint Grade Crown Trim 'In trey ceiling in master bedroom. Painting &.Finishing.. General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 1.00 EA Provide Painting&Finishing as Specified per plan Glass&Minors..-:-. General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 4.00 EA Supply&Install 24 x 36 Oval Mirror with 1 Inch Bevel '2 per bath room. Includes allowance of$60 per oval mirror. Job: initials: 1 Pages:10 of 12 2.00 EA Supply&Install Recessed Medicine Cabinet '1 for each bath room. Includes allowance of$50 per recessed medicine cabinet. 1.00 EA Supply&Install Clear Glass-frameless Shower Door 1.00 EA Supply&Install Clear Glass Panel Above Knee Wail 'Master bath shower. Appliances General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 1.00 EA Re-Install Owners Stove/Range 'After kitchen is finished. 1.00 EA Install Owners Refrigerator in New Location 1.00 EA Re-Install Owners Washing Machine 'After tiled floor is finished. 1.00 EA Re-Install Owners Dryer 'After filed floor is finished. Landsca in - General Type:..General Requirements Level:Other Note: Unit Qty Unit Description Notes 0.00 EA Supply&Install Grass 'Customer said would take care of grass. Other General Type: General Requirements Level:Other Note: Unit Qty Unit Description Notes 8.00 EA Supply&Install Bath Accessories `Includes allowance of$20 per bath accessory. 2 toilet paper holders,2 towel rings,2 towel rods,2 robe hooks. 4.00 EA Supply&Install Closet Rod&Shelf(up to 4 ft) '2-V sections in new master bedroom closet. Subtotal: 208,898.00 Taxes: 0.00 Grand Total: $208,898.00 Job: Initials: 1 Pages:11 of U Signature Date Signature Date Signature Date Job: lnitials: / Pages:12 of 12 Exhibit "B" Q 0 C j Q- () -0 Ch 'O a) O O O C tLa ! RR � O) L "- ca O O to O a) (� 1C ''' C L L N --r O Q. +-' U Cl) > Q N � o a) a) O p � � a) to p. � O to O p j NON . 3 OC O a) -c Q � O Q E «= O :- 0 O) o _ U° E 4N a U O C to ca N O •E N 'O O p a O L O a) E .Q O L 3 3 U o O fa Q O 'a 2 34 L u N ca O O O o c � o O � ° 3> ON U 3:a) X 4- a) J o Y v O CU � a) E r- E ai Q N p m Q M a) E a 6� E o a) ° > o cQ� o o a030 a) 0 - E tn o o ° CO E� -0 p co to 0 o N °) p c ° L >+ � a) ° p :r -0 r 07 U to '"' N U > 4--� -0-� N •� 0 Q C "a "a rn to p U) to a) tat a) Z i` N u- X O .Q +r O N p � C_ E U a) O M (n LO U U .o .X •a) •tV �. .X V •F+ L to .tom 'a � L \ CD 0 a) NO U Q ty C CO L a) p O p L ca ... L ca °? c E ch E� w w O L •w G to L — L -0 N 0 " 4O X X L L to ca to -a w to p to N to U L- CA p p O m o CU aa)) � ? m 0 m cu u o rn 66 ° a 0 � � ) (A a) > L �. to L a) L r• 4- LO d' O Q > Q �• I•— ca !— 'a ,H c H U U L rfr o U-) U U o c LO o o LO o U') o LO LO o U') cc I- m � d- ti rn to v U') U') LO LO o C �t (D m mot• M o It v o ao 0 6c3 cq 6g c- ff} N 6F} 6% �— r M 00 E V tf} fl 4fl <f3 EF3 63 Efl a) a) 06 J Q Q� L O rL "O_' m U) N U O ca J tZ L cn 0 W ♦� N 42 p IL C fA a) W E Q U- 0 W E rn Z J Q O W N Y (� Q Q -r aU)d) t N. � O a) U O 0 U Z a — °- n aa)) . � c Y -v� - > o U U Q "O v 06 � U 0 m E o ti 3 V O cj M E ° o m o a. w E m p ca O 2 O to to L co to M 0 o a—�i Z o U U °a. 0 0 I J � �W W W Q Z > W W f= Q Q 06 ) U) +� U > •0 L o o r .� U a O° COD a) = 3 a� 0 � 0 0 � 0 c o N p a� .� c c m a) ° O U O N O °ch c Y E 0 cu cu m a c 0 Q v- (n a) N a) O a) ca a) •� L -cc `Ln U Cl) •� N O a cu c p = .> 0 CA O � � •c, 0 U � � O � U p U C c +0. 0 06 06 N 'a � � a) U � •� Y L U :2 c L p 0 >+ O O Q � .O ° _C N N � -� N a) O_ a) -L a L (n � E a) 'U) 0) N a) CC p •pL � C o L O O N ++ 4- '� 0 yL„ a) cn a) Z O U Y C.a N '� N •O N U N O —� a) +r O O (� c a) ...= cn (u 0 Q 0 a U 'O 0 U N U CU o a) c m a- m a� O - .E- -r � �- 0 � cn cc cn CA cu := cnUEoUU) C.) , U) x � � � c� CO -n v 0) 0) M M 1t' LO d' r T- 0 C It 'qt T- T- N I� N N f` L1 V V r 6%,- ~ EF} (f} 60. bg !' O W O OCl) 4-0 Cn °Lo CL o U LU o C%4 Q c t� 0 0 cl a ° 0 0 v O 0 a� c0 = w ~ � ' cn •Q U) 0 +r N Z Q X cu cc Q L t �L L L 0 U L O O LL N V4- 4- ca L*- W a Q O O O ° .� 0 U) U U c W o Cl) a cm cm 0 m o c� o W W to U r U U- U' cl O O cn a .cn N E '~ N 0 a) O x .c O L C ;F C w a.• p N a) `• -a co cu E y cn � C N c a' L p ._ . a3 U 0 a U C C C O O a0 O E L C la C r 0 p U 0 � S 0 -a (D C O cu 3 Q 'a O O O ` Y C O 'a ca O rb U O C C (n «. (n .0 O O Q ca O a ca = C C O O a3 o LL N a) c E m X O C,4 In ° o. "- (nova) cLa) c -a ca 1 � � -0 a) a) c = 0 ,a> > 3aa) N (D CY = "- c -a -a �- co (n ,. U cn 4-- CO a ca n C� ca �y n o ui c -a ° .a Cr .. c 0 3 ca a) ca o �c @>, ca CD cn a- ET X C Q (n ° a) ca c c E ca •- :fl cc -0 � 0 o � 3 ` a• c o ca cc 0 V o o a) U 'a ca C ° a a n CE E a = Q acQ0 p ° 0 p 'D- Y O .a � , '0 ��11 -a o m C ,a 0 V L- � O V O C 0 V N 0 w O N N a) N a) o V.� N ' Y Y = . 0w✓ a' 0 0O U LL r` a) c U L Cn �• O Co ° C w r (n Q 40. .L 0 (a N i C a+ 4-- Q �� �h E +. o .a ' L v- C 'a V E >, E (n C O U c 'O O :a L a) O 'a 0 O p O O C C a) ° U ° a) ca .0 a) 0 'Q C N J'r C c �' a) 0 w- 0 .� — N �; c N 'a >c5 2 U can O 0 ° O as ca ca 'a ca O 0 c •O a• ca a) Q- O 'O C cn acn 3 Lo = N C U cLC• L Q E E -a U . 0 U . Q •,... ..... .w UUUUU C N CD N co ti � co N co ZZZZZ M N co a0 O d^ O r,: EA 6F} C6 NEf� 6% � 63 i O O -C a cn In a) a) -c E _ 06 :5 N O N O o m ° m ° ca � c 3 o 0 > LLt S .n ,. 3 Cl) cl C) o � Cl)ca > a 3 0 3 ° 0 CU«-• cn L .0 4w N a) CU (1)N uj fa (} U Q Cc L .c Q QO)Z E > c U .0 O O O O w ca V w M ^^L co X O L C O 0 O C CO m 0 = o U c 0S a) aam0 ° ca L 06 a) ,� > c to t O NC U C 00 CO a) .� U. +—U+ co ° ojLj Y o ca _ cu a o o cm m 5 E O a o a a� -0 w 70 �ca a) V CD cn N a. 0 O 0 U 4) a C" L O L N a) cu L E E u C E O O 0 +r U _ LL 1�- O 0 0 LL U C6 Y V U) LL O O ., L _ r_ J ca m D O In ca Cc cLQ x ?� ca O O O•'a X v 0 @ ca V > O 0 fa X: cu cu y O LL .G LL L LL "' O 0. Cl) J O CO O � U L) 0 0 Co `�• N N -00 a O M O M a) ao r wa � a Y 4? o L oL O Lo.. N CL CL 0.:a 0 y 1 0_0- 0_ CL L < < EQ car � I— a O O O O OIl- 0co00010 N co M_ OT,. co- O ti co 04 �t. O N co 1� 0) co N 00 I� N r N V r N '(D_ 63 6% 63 6F} d4 N r 6% 6h} 69 V-)- 6l} N w a� W c ccu O � J o u- •� O c LL O .0 7, a Co c O (n a) > o Y CO F— U a) >N (D O O ) C' L t ry O a) > a > V O E 0 O Cn O c6 N C' O L .,.., C Y a) O E O ca c co o m U rl, cn cu U)aa) a CO c O °o C: "aa cLa E "- 0 ? `E a ca 0 o CD aa) a rn� m (D am m U U a o o ,E 'L C L L L 0 cu 0 �a o 0 12 O cn 0 ca .. o O Cl) U t a� rn rn Z U L a) ca ca ca = a) + Q E i Q a o ca` a � aai cu U > > _ 21 U2O2 > m Exhibit "C" i THOMAS,THOMAS&HAFER,LLP John F.Yaninek,Esquire Attorney ID#55741 Joshua J.Bovender,Esquire Attorney ID#314001 P.O.Box 999 Harrisburg,PA 17108-0999 717-237-7153 jovender @tthlaw.com Attorneys for Plaintiff CARTER LUMBER COMPANY, IN THE COURT OF COMMON PLEAS 601 Talmadge Road CUMBERLAND CO.,PENNSYLVANIA Kent, OH 44240, Plaintiff V. NO. 13-2125 Civ STONER CONTRACTING GROUP, LLC 706 Somerset Drive Mechanicsburg, PA 17055, CIVIL ACTION—LAW FRED E. STONER, 706 Somerset Drive Mechanicsburg, PA 17055 MICHAEL A. STONER, 300 Walnut Circle Shiremanstown, PA 17011, Defendants. NOTICE TO DEFEND 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 PLEADING AND NOTICE ARE SERVED BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER 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 800-990-9108 NOTICIA LE HAN DEMANDO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tien viente (20) dias de plaza al partir de la' fecha de la demanda y la notificacion. Usted debe presentar una apariencia excrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades b otros derechos impotantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONE A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 717-249-3166 800-990-9108 1395458-1 THOMAS,THOMAS&HAFER,LLP John F.Yaninek,Esquire Attorney ID#55741 Joshua J.Bovender,Esquire Attorney ID#314001 P.O.Box 999 Harrisburg,PA 17108-0999 717-237-7153 jovender@tthlaw.com Attorneys for Plaintiff CARTER LUMBER COMPANY, IN THE COURT OF COMMON PLEAS 601 Talmadge Road CUMBERLAND CO.,PENNSYLVANIA Kent, OH 44240, Plaintiff V. NO. 13-2125 Civ STONER CONTRACTING GROUP, LLC 706 Somerset Drive Mechanicsburg, PA 17055, CIVIL ACTION—LAW FRED E. STONER, 706 Somerset Drive Mechanicsburg, PA 17055 MICHAEL A. STONER, 300 Walnut Circle Shiremanstown, PA 17011, Defendants COMPLAINT Plaintiff, Carter Lumber Company, Inc., by and through its counsel, Thomas, Thomas & Hafer, LLP, respectfully files the within Complaint against Defendants, Stoner Contracting Group, LLC, Fred E. Stoner, and Michael A. Stoner(collectively "Defendants"), and in support thereof avers the following: 1. Plaintiff, Carter Lumber Company, Inc. (hereinafter"Plaintiff') is an Ohio-based corporation duly authorized to conduct business in the Commonwealth of Pennsylvania with a principal place of business located at 601 Tallmadge Road, Kent, Ohio. 2. Defendant Stoner Contracting Group, LLC is a Pennsylvania limited liability corporation registered to do business within the Commonwealth of Pennsylvania. . 3. Defendant Fred E. Stoner is an adult individual residing at 706 Somerset Drive, Mechanicsburg, Pennsylvania 17055, and is a co-owner and member of Defendant Stoner Contracting Group, LLC. 4. Defendant Michael A. Stoner is an adult individual residing at 300 Walnut Circle, Shiremanstown, Pennsylvania 17011, and is a co-owner and member of Defendant Stoner Contracting Group, LLC. 5. At all times material hereto, Defendants Fred E. Stoner and Michael A. Stoner acted within the course and scope of their employment with Defendant Stoner Contracting Group, LLC. 6. At all times material hereto, Defendants Fred E. Stoner and Michael A. Stoner acted with apparent and actual authority to conduct and transact business on behalf of Stoner Contracting Group, LLC. 7. At all times material hereto, Stoner Contracting Group, LLC, was engaged as a contractor for the construction of commercial and/or residential properties in Pennsylvania. 8. On or about March 10, 2010, Plaintiff and Defendant Stoner Contracting Group, LLC, entered into an a valid and enforceable contract whereby Plaintiff agreed to sell building supplies and materials to Defendant Stoner Contracting Group, LLC, on a line of credit for use 2 � r on construction projects ("Yard Account Agreement"). A true and correct copy of the Yard Account Agreement is attached hereto and marked as Exhibit"A." 9. Defendants Fred E. Stoner and Michael A. Stoner, in their capacity as duly authorized agents of Stoner Contracting Group, LLC, personally guaranteed Defendant Stoner Contracting Group's obligations. under the Yard Account Agreement in order to obtain the materials and building supplies from Plaintiff. 10. In consideration of the Yard Account Agreement, Stoner.Contracting Group, LLC ordered building supplies and materials from Plaintiff who, in turn, sold the building supplies and materials to Defendant Stoner Contracting Group, LLC. 11. Defendant Stoner Contracting Group, LLC continued to make purchases on the Yard Account until March 23, 2012. 12. Subsequent to the formation of the Yard Account Agreement, Defendant Stoner Contracting Group, LLC continued to make payments on the Yard Account until December 21, 2011, after which Defendant Stoner Contracting Group, LLC failed to make any further payments. 13. Defendant Stoner Contracting Group, LLC's failure to make the foregoing payments constitutes a breach of the Yard Account Agreement. See Exhibit A. 14. Specifically, Defendant Stoner Contracting Group, LLC has not made any payments on its Yard Account debt since the December 21, 2011 payment in the amount of $10,000.00, despite making purchases on the account until March 23, 2012. 15. As a result, Stoner Contracting Group, LLC has failed to pay for the building supplies and materials purchased on account from Plaintiff per the express terms of the Yard Account Agreement. See Exhibit A. 3 16. Following Stoner Contracting Group, LLC's breach of the Yard Account Agreement, Defendants Fred E. Stoner and Michael A. Stoner, in their personal capacities, also breached their obligations under the Yard Agreement by failing to make the required payments under their personal guarantee of Stoner Contracting Group, LLC's debt with Plaintiff. 17. Defendants currently. owe Plaintiff$60,474.53-in unpaid principal on their Yard Account. 18. Defendants also owe Plaintiff an undetermined amount in financing charges, which continue to accrue as the result of Defendants' delinquent debt pursuant to the express terms of the Yard Account Agreement. See Exhibit"A." 19. Additionally, Defendants are liable to Plaintiffs for the reasonable attorney's fees and costs associated with pursuing this collection action under the express terms of the Yard Account Agreement. See Exhibit"A." COUNT I—BREACH OF CONTRACT Carter Lumber v. Stoner Contracting Group,LLC Breach of Yard Account Agreement 20. Plaintiff incorporates all other paragraphs as if the same were set forth at length herein. 21. At all times material hereto, Plaintiff acted in good faith and in accordance with the parties' Yard Account Agreement as set forth above. 22. Defendant Stoner Contracting Group, LLC entered into the Yard Account Agreement,which constitutes a valid and enforceable contract. 23. Defendant Stoner Contracting Group, LLC breached the Yard Account Agreement by failing to make the payments required by the express terms of the Yard Account Agreement. 4 t 24. As a direct result of Defendant Stoner Contracting Group, LLC's breach of the Yard Account Agreement, Plaintiff has been damaged in an amount of$60,474.53,plus interest, attorney's fees, and costs. WHEREFORE,Plaintiff, Carter Lumber Company, Inc., demands judgment be entered in its favor and against that of the Defendant Stoner Contracting Group, LLC in the amount of $60,474.53, together with interest, financing fees, attorneys' fees, cost of suit, and any other relief this Honorable Court deems just and appropriate. COUNT II—BREACH OF CONTRACT Carter Lumber v. Fred E. Stoner& Michael A. Stoner Breach of Personal Guarantees 25. The foregoing paragraphs are incorporated by reference as if set forth at length herein. 26. Stoner Contracting Group, LLC, breached the Yard Account Agreement when it failed to make its required payments to Plaintiff, thereby triggering Defendants Fred E. Stoner and Michael A. Stoner's personal obligations to assume payment of the outstanding balance on the Yard Account. 27. Defendants Fred E. Stoner and Michael A. Stoner breached their personal guarantee obligations under the Yard Account Agreement by failing to make the required payments to Plaintiff. 28. As a result of Defendants Fred E. Stoner and Michael A. Stoner's respective breaches of their personal guarantee of Defendant Stoner Contracting Group, LLC's obligations under the Yard Account Agreement, Plaintiff has been damaged in an amount of $60,474.53, plus interest, attorney's fees, and costs. 5 i WHEREFORE, Plaintiff, Carter Lumber Company, Inc., demands judgment be entered in its favor and against that of the Defendants Fred E. Stoner and Michael A. Stoner in the amount of$60,474.53, together with interest, financing fees, attorneys' fees, cost of suit, and any other relief this Honorable Court deems just and appropriate. COUNT III—UNJUST ENRICHMENT Carter Lumber Company,Inc.v.All Defendants 29. The foregoing paragraphs are incorporated as if the same were set forth at length herein. 30. At the request of Defendants, Plaintiff provided building supplies and materials to Defendants for use and incorporation into certain construction projects. 31. Plaintiff did not provide the supplies and materials to Defendants gratuitously. 32. At all times material hereto, Plaintiff reasonably expected to be paid for the building supplies and materials sold and provided to Defendants. 33. In order to obtain the financing provided under the Yard Account Agreement, Defendants Fred E. Stoner and Michael A. Stoner'personally guaranteed the Yard Account Agreement. 34. Defendant Stoner Contracting Group, LLC benefited from building materials and supplies it received from Plaintiff as said materials and supplies were required in order to complete the commercial and/or residential construction for which Defendant Stoner Contracting Group, LLC, is believed to have contracted. 35. As principals of Defendant Stoner Contracting Group, LLC, Defendants Fred E. Stoner and Michael A. Stoner personally benefited from the personal guarantee as it enabled their business, Stoner Contracting Group, LLC, to obtain financing to purchase building supplies and materials. 6 I 36. The building supplies and materials provided by Plaintiff were knowingly and voluntarily accepted by Defendants. 37. In the alternative to Counts I and II, the acceptance and use of the building supplies and materials by Defendants created an implied contract, whereby Defendants are obligated to pay.Plaintiff the reasonable value of said building supplies and materials. 38. The provision of building supplies and materials by Plaintiff to Defendants has directly benefited Defendants and, in the event that Defendants are not required to pay Plaintiff the reasonable value of the same, then Defendants will have been unjustly enriched. 39. As a direct result of Defendant's unjust enrichment, Carter Lumber is entitled to recover not less than$60,474.53 from Defendants. WHEREFORE, Plaintiff Carter Lumber Company, Inc. demands judgment be entered in its favor and against that of Defendants in the amount of$60,474.53, together with cost of suit, reasonable attorneys' fees, and other relief this honorable Court deems just and appropriate. COUNT IV—CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT Carter Lumber Company,Inc.v. Stoner Contracting Group, LLC 40. The foregoing paragraphs are incorporated as if the same were set forth at length herein. 41. Defendant Stoner Contracting Group, LLC, has wrongfully and without reasonable justification withheld payment from Plaintiff as aforesaid. 42. The unjustifiable failure to pay Plaintiff was arbitrary and vexatious, and constitutes bad faith. 43. Defendant Stoner Contracting Group, LLC's actions therefore violate the Pennsylvania Contractor and Subcontractor Act, 73 Pa.C.S. §§ 501-516 and entitle Carter Lumber to the award of interest,penalties, and attorneys' fees as set forth therein. 7 WHEREFORE, Plaintiff, Carter Lumber Company, Inc., demands judgment be entered in its favor and against that of Defendant Stoner Contracting Group, LLC in the amount of $60,474.53, together with cost of suit, interest, penalties, attorneys' fees, and other relief this honorable Court deems just and appropriate. COUNT IV—ATTORNEYS FEES AND COSTS Plaintiff v.All Defendants 44. The foregoing paragraphs are incorporated as if set forth at length herein. 45. Defendants' contract with Plaintiff provides that Defendants "agree to pay all actual cost of collection including actual attorneys fees, court cost and or collection agency fees due to . . . [Defendant's] breach of the terms of sale." Exhibit"A." 46. This case is a collection action to collect the outstanding balance on the Yard Account executed by Defendant Stoner Contracting Group, LLC, and personally guaranteed by Defendants Fred E. Stoner and Michael A. Stoner. WHEREFORE, Plaintiff, Carter Lumber Company, Inc., demands judgment be entered in its favor and against Defendants Stoner Contracting Group, LLC, Fred E. Stoner, and Michael A. Stoner,in the amount of$60,474.53,together with cost of suit, interest,penalties, attorneys' fees, and other relief this Honorable Court deems just and appropriate. Respectfully submitted, THOMAS, THOMAS &HAFER,LLP By: J ua J. Bo der Es re John F. Yaninek,Esquire Date: I`L l S l 3 1395458.1 8 2010-04-12 14,37 JEFF SIBERT ` 717-467-5575>>FAXCOM { P 1/1 YARD? ACCOUNT,PP LIPATION �.,�• ��� M Nrrormetlm moat be aompWad for pmaWnp STORE CV&MATE STORE IQUhd M 0$R NAl41SAtVC]NUMBER PA -1 Z36-4 0MCK TYPE Of ACMUN'I: 12 BUSMS Cflt w ilw RWUEuw . }�;�I 4be�f 0 OWMM!Sohn(H)ACC�IJF1r-(oWWW It saoonnt Mto-) r rj rh 0 tt0li ROPIT 1 o�ID I WIOH TO SIGN UP FOR YARD RKWARDA; !�Ysn,sign mo up p 0d n4t tlpn mo up at tt"th" Cfis&0m.- 0 ME-PROPRIETOR IV PAMMHIP LLC 0 CORPORATION ►�.r_/aea�'larr�j'++ +�,r�ws � 4l�lr��' �`�'�4;• • FA91! L X36 r NAAlsIB OF OWNERS CR CFRMM TITLE HOME Ann1tE9A TEt EPrIONfE ha, s S N rt0. rea1 ..� ..iSJy�JL-fr��.•r► r i1AG))�'��� 1� ��/(y�y(Ly�H //�Oyf7��I-/�'�G Ai-�rt Ir�� Pill 1p,L ����P l_I II ~i/ M i���_ •wi . CheekTWo of dote: t(REWDRaIAL C1 COMMMIAL Chank If Wcablm O TAX EX MPT 0 P.O.REGAARED M:�A. Ste- ► �►� � : � nq it L r1d, ra, x Me-lk- ,- t. coat =A _-_)`egL.rsL�epW eMLm OerW unbar CDorr�n+p{`w to kq to ait,ft�a Lbova�bwkk sttkh��i�Luyi myy 0"4udM tw- t(1NO as W20 the#have Bju*to �tt VGILOL .. k41�M1!l-N tM�FZ.4� �IrF�LYUA'IYINO: TtDB AOFtaL111tNr li ik7*JLCT 1C if3g IV=Nia CPMRiTip s Pty gm Awn ANQ QH Ymr.REM19SO,*WHM Am mw PAW HEMW AND %WH M D ED ACKlMLMES THAT7MY HAYE BEAD AND UNDO=" x A- 10 IMP 114 200 MTE Trim �Lf>�r �• I- ar` ' fff e •'i1...4� r kiA{ �W id" 1 17th QW 70-om 14 '�--� FNRNCSR pdc x[ FAK TO CR1r rMPARTNFJ&AT 9"7G9*M �n�n.na.�n t�,ad emnlFa a 7177a7ra?7 D—, FJCHIBIT i TMS AND COND1TiONS This agreement states the terms for your credit account with Carter Lumber Company and any of its subsidiaries. "You"and"your" meats each person orcorporation who is named on this account."We","Ifs",and"Our"mean site Carter Lumber Company or any of ifssubsldiartes, ' Purchases: You can use your credit account to purchase goods at Carter Lumber Company and any of its subsidiaries noted on this application. C edt Limit:We will tell you die amount of your*credit limit when we approve your account Personas Guarantee:Guarantorls jointly and severally,unconditionally guarantee the payment of any and All sums of money as are now,or at any time hereinafter may be owing to Career Lumber Company by Applicant or Guarantor/s,as a result ofCatter Lumber Company's extension of credit Guarantorls waives notice of extension of time or modification of terms,settlements or resolutions of disputes,modification of credit line,default ofApplieant. This is intended to be and is a continuing guarantee and shall not be revoked except by written notice to Carter Lumber Company not to make any further sales and deliveries on the security of this guarantco.The Guarantor/s signature further acknowledgcs that speeifto authorization has been granted to Carter Lumber Company to Investigate the Guarantor/s Individual consumer credit zepott,necessary with this guarantee, Prompt Payment All building construction accounts must fallow the pay when paid requirements of state law. It is your responsibility to discuss the time of payments In the event the above leans vary from the normal terms outlined below. Appiicantand or guarantor/s agree to pay all actual cost of collection including actual attorney's fees,courtcostand or collection agency fees due to Carter Lumber Company as applicants'or guarantorls breach of the terms ofsale,whether or note lawsuit is brought to satisfy the debt owed to Carter Lumber by applicant or guarantor/s. In the event that any suit or collection action Is required to enforce the terms of this Credit Application and to collect unpaid account balances owing to Carter Lumber Company,die undersigned agrees that jurisdiction end venuo for any such action shall not be limited to the state and county in which the materials,goods or services are purchased or received. PaymentTenns farComoradon Account:30 Day Terms Entire balance due on or before the IP of every month unless otherwise approved by the Credit DepamncnL Elnancechargos of l.5%per month will be added to past duo amounts. All past due accounts are subject to Icnnlnation of additlonal credit. You agree to be bound by above terms and conditions,which are hereby Incotporated by reference and made a part of this eppllcation. Your check is your receipt , Payment Terms ForAfon-arofitand Government 60 bay Terms Endrebalance due an or before the 15'a of the 2"d month unless otherwise approved by the Credit Department Finance charges of 1.5%per month will be added to past due amounts. All past clue accounts are subject to termination ofadditional credit.You agree to be bound by above terms and conditions,which are hereby Incorporated byreferencc And made apart of this application. Your check is yourreceipL .._.Pa=cnl Terms jarRAccounts-, aju Terms:Cash Financing,any owacr•buiit home that is•financed•with cash-and does-not have- an existing bank financed construction loan will be subject to 30 Day Terms,Entire balance due on or before the(5'a of every month unless otherwise approved by the ercdit DepartmenL Finance charges of 1.5%per month will be added to past due amounts. All past duo accounts are subject to termination of additional credit. 60 bay'Cerms: Bank Construction Loan Financing any owner built home that is financed with aconstructioa loan will be subject to 60 day terms,Entire balance due on or before the 10 of the 2n1 month unless otherwise approved by the Credit Department Finance charges of 1.5%per month will be added to past due amounts.All past due accounts are subject to termination of additional credit You agree to be bound by above terms and conditions,which are hereby incorporated by reference and made a part of this Application. Your check is your receipt. Cancellation: Exceptwher0 specific written notice is requited by law,we can caned your account anytime in person,by phone,or written notice sent to you at the address where we mail your statcmtnt. You can cancel your account by notifying us in writing.IF your account is cancelled by your,or by us,you will have to pay us Utc Nit amount you owe us,including amounts that have not been billed to you yet. Change in Terms: We can change die terms of this agreement anytime.Notification of changes will be made in accordance with federal or stata law. You agree that changes will apply to purchases made prior to any change as well as to new purchases.If the law makes ally pact of this agreement void,all the outer(arms shall be soverab le and enforceable. pisautcst Disputes must be submitted in writing within,60 days of invoice date In order to be considered valid.Any disputes that arc not in writing will be considered valid and payment terms above will apply. Lien Righ%You understand and agree that we reserve 1110 rlgltt to file a mechanic's lien,allestcd Account;or take whatever action is necessary against you,the property owner where;the materials are being utilized,the general contractor,the lending institution financing said construction,or any other party that would have control over the funds utilized for the purchase of said merchandise. Credit Renort: You autharizc us to obtain reports to be used in connection with this application,and to obtain further credit information from any persons or firm set forth in this application and from any other source that we decide to use regarding the business,Its officers,director,agents,employees,or principals. You authorize us to retain all information and reports for our files. Buyers Acrecment:The person signing amities that all Information provided is true and correct. You hereby give consent and authorized Ute below named person(s)to use the CarterLumber Yard Account and understand thatyour business Is liable for payment of all charges incurred by autlterized signers. You agree to promptly notify Carter Lumber of any changes in authorized users. Carter Lumber Company,Carer-tones Lumber Company,,Holmes Lumber Company,Su ercrcek Lumber Company, ' ' Kight Lumber Cgmpapy _..._..._.._._............... l t VERIFICATION I, Joshua J. Bovender, Esquire, state that I am the attorney for the party filing the foregoing document; that I make this Affidavit as an attorney because I have sufficient knowledge or information and belief, based upon my investigation of the matters averred or denied in the foregoing document; that time is of the essence in the filing of this document; and that this statement is made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. THOMAS, THOMAS, &HAFER,LLP o h J. squire DATE: 1 S (3 38603-1 CERTIFICATE OF SERVICE I, Gwen M. Cleck, an employee of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I served the foregoing Complaint on the following by placing same in the United States mail,postage prepaid, and addressed as follows: Daniel L. Sullivan,Esquire Saidis, Sullivan&Rogers 26 West High Street Carlisle,PA 17013 C �> wen M. Cleck Date: 1395458-1 Exhibit "D" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW CARTER LUMBER COMPANY, Plaintiff No. 13-2125 Civil Term V. STONER CONTRACTING GROUP,LLC, FRED E. STONER and MICHAEL A. STONER, C-- L Defendants 73 C7) NOTICE TO PLEAD r--= _�= c_i—r TO: Carter Lumber Company c/o Joshua J.Bovender, Esquire John F.Yaninek,Esquire ~_. Thomas,Thomas&Hafer,LLP 305 North Front Street P. O.Box 999 Harrisburg,PA 17108 You are hereby notified to file a written response to the enclosed New Matter within twenty(20) days from service hereof or a judgment maybe entered against you. SAIDIS, SULLIVAN &ROGERS Dater Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle,PA 17013 717-243-6222 -Phone 717-243-6486 - Fax dsullivannssr-attorneys.com Attorneys for Stoner Contracting Group, LLC f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW CARTER LUMBER COMPANY, Plaintiff No. 13-2125 Civil Term V. STONER CONTRACTING GROUP,LLC, FRED E. STONER and MICHAEL A. STONER, Defendants ANSWER AND NEW MATTER OF DEFENDANT STONER CONTRACTING GROUP,LLC AND NOW this aq day of 4ecp... V&- ,2013, comes Defendant, Stoner Contracting Group,LLC("Stoner Contracting"),by its attorneys, Saidis, Sullivan&Rogers, and files the following Answer and New Matter to Plaintiff s Complaint: 1. Admitted on information and belief. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part and denied as stated in part. It is admitted that at times Fred E. Stoner and Michael A. Stoner acted within the course and scope of their employment with Stoner Contracting. Because the phrase"[a]t all times material hereto'is indefinite and imprecise, Stoner Contracting is unable to respond with specificity with respect to any particular action on their part as being within or without the course and scope of their employment. 6. Admitted in part and denied as stated in part. It is admitted that at times Fred E. Stoner and Michael A. Stoner acted with apparent and actual authority to conduct and transact business on behalf of Stoner Contracting. Because the phrase "[a]t all times material hereto'is indefinite and imprecise, Stoner Contracting is unable to respond with specificity with respect to any particular conduct or transaction of business that may have been performed on behalf of Stoner Contracting. 7. Admitted. 8. Admitted in part and denied in part. It is admitted that Fred Stoner and Michael Stoner signed a document similar to the first page of Exhibit"A"on behalf of Stoner Contracting on or about March 10, 2010. However, Stoner Contracting denies the remainuig averments of this paragraph. When the document was presented to them for execution in person by Plaintiff s representative,Jeff Sibert,Mr. Sibert described to therm that it was simply a credit application and dismissed any significance to the second page of Exhibit"A"(which was not pointed out to theirs or presented to them by Mr. Sibert or otherwise provided to them by Plaintif). Mr. Sibert encouraged them to quickly complete and sign the first page and return it to him. The document signed by Fred Stoner and Mike Stoner did not include the scratched-out sections or some of the handwriting appearing at the top of Exhibit"A." The document provided to Fred and Michael Stoner did not include the handwritten credit limit of"$10,000.00." Further,the block checked as"yes,sign me up" was not checked on the form signed by Fred Stoner and Michael Stoner. The averment that Exhibit"A"is a valid and enforceable contract is a conclusion of law to which no responsive pleading is required. 9. Admitted in part and denied in part. As set forth in paragraph 8, above, which is hereby incorporated by reference,Fred Stoner and Michael Stoner executed a page similar to the first page of Exhibit"A." The remaining averments of this paragraph are conclusions of law to which no responsive pleading is required. 10. Admitted in part and denied in part. It is admitted that at one or more times one of the authorized account users from Stoner Contracting ordered building supplies and materials from Plaintiff. However, Stoner Contracting avers on information and belief that various building supplies and materials which purportedly were ordered on behalf of Stoner Contracting were ordered by persons others than the four persons authorized as account users on the first page of Exhibit"A." Without specific identification and production of supporting documents with respect to each and every item of building supplies and material allegedly ordered on behalf of Stoner Contracting, after reasonable investigation Stoner Contracting is unable to admit or deny that Stoner Contracting ordered any particular building supplies and materials at issue herein, so that these averments are denied and proof demanded.. 11. After reasonable investigation, Stoner Contracting is without knowledge or information sufficient to form a belief as to the specific dates on which its authorized account users made purchases on the Yard Account or ordered any particular building supplies and materials, so that this averment is deemed denied and proof demanded. 12. Admitted in part and denied in part. Stoner Contracting admits on information and belief that its last payment was made on or about December 21,2011. The phrase in this paragraph averring that Stoner Contracting"continued to make payments"is unclear and imprecise, so that this averment is deemed denied and proof demanded. 13. The averments of paragraph 13 are conclusions of law to which no responsive pleading is required. 14. Admitted in part and denied in part; Stoner Contracting's responses to paragraphs 11 and 12 are hereby incorporated by reference. 15. After reasonable investigation, Stoner Contracting is without information or knowledge sufficient to form a belief as to the truth of the averments of paragraph 15 so that these averments are deemed denied and proof demanded; Stoner Contracting's response to paragraph 10 is hereby incorporated by reference. 16. The averments of paragraph 16 are conclusions of law to which no responsive pleading is required. 17. The averments of paragraph 17 are conclusions of law to which no responsive pleading is required. In further response,nevertheless, Stoner Contracting's responses to paragraphs 10,21 and the New Matter allegations set forth in paragraphs 47 - 66 are hereby incorporated by reference. 18. The averments of paragraph 18 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,the document identified as Exhibit"A' is a written document which speaks for itself, and Stoner Contracting denies the accuracy and completeness of any attempt by Plaintiff to describe, characterize,or selectively quote therefrom. 19. The averments of paragraph 19 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,the document identified r (. as Exhibit"A' is a written document which speaks for itself, and Stoner Contracting denies the accuracy and completeness of any attempt by Plaintiff to describe, characterize,or selectively quote therefrom. COUNT I—BREACH OF CONTRACT Carter Lumber v. Stoner Contracting Group,LLC Breach of Yard Account Agreement 20. Stoner Contracting hereby incorporates by reference all other paragraphs of this document as if the same were set forth at length herein. 21. Denied. On the contrary, Plaintiff, acting primarily through its authorized agent and employee,Jeff Sibert,undertook a persistent course of conduct not in good faith and not in accordance with any agreement or reasonable commercial standard,whether set forth in the Yard Account Agreement or otherwise. In particular,Plaintiff,primarily through Mr. Sibert, failed to communicate with Stoner Contracting in a timely and meaningful manner,failed to invoice in a timely manner,failed to respond meaningfully and promptly to account questions, and failed to keep Stoner Contracting apprised of the status of its account throughout the course of its dealings with Stoner Contracting. Stoner Contracting further avers on information and belief that Plaintiff,primarily through Mr. Sibert,interacted directly and extensively with Stoner Contracting customers Terry and Claudia Cook regarding selections for their house which was being remodeled without involving a representative of Stoner Contracting in the selection,pricing or ordering process. Mr. Sibert persuaded Mr. and Mrs. Cook to order material beyond their contracted allowance, despite Mr. Sibert knowing the Cook's contract allowance on the items under discussion. Mr. Sibert consistently caused to be shipped excessive materials to the Cook job I � site and failed to pick up excess shipments in a timely manner. Plaintiff,through Mr. Sibert or others in Plaintiffs billing department,failed to timely,regularly and properly advise Stoner Contracting of the material allegedly being purchased on its behalf through its account and failed to process invoices and credits in a timely and proper manner. Plaintiff charged various materials and supplies to Stoner Contracting's account without those materials and supplies being ordered by any of Stoner Contracting's authorized account users. 22. The averments of paragraph 22 are conclusions of law to which no responsive pleading is required. In further response,nevertheless, Stoner Contracting's response to paragraph 10 is hereby incorporated by reference. 23. The averments of paragraph 23 are conclusions of law to which no responsive pleading is required. In further response,nevertheless, Stoner Contracting's response to paragraph 10 is hereby incorporated by reference. 24. The averments of paragraph 24 are conclusions of law to which no responsive pleading is required. In further response,nevertheless, Stoner Contracting's response to paragraph 10 is hereby incorporated by reference. WHEREFORE, Stoner Contracting demands that Plaintiff s Complaint be dismissed with prejudice and that they be awarded fees, cost of suit and such other and further relief as this Honorable Court deems just and appropriate. COUNT H—BREACH OF CONTRACT Carter Lumber v.Fred E. Stoner&Michael A. Stoner Breach of Personal Guarantees 25.-28. The averments of Count H,paragraphs 25—28,are directed at Defendants other than Stoner Contracting so that no response by Stoner Contracting is required. COUNT III—UNJUST ENRICHMENT Carter Lumber Company,Inc.v.All Defendants 29. The responses to the foregoing paragraphs are incorporated herein as if the same were set forth at length. 30. Admitted in part and denied in part. Stoner Contracting's response to paragraph 10 is hereby incorporated by reference. 31. Admitted in part and denied in part. It is admitted that when Stoner Contracting ordered supplies and materials by its authorized account users it assumed Plaintiff was not providing the supplies and materials gratuitously. With respect to supplies and materials ordered by persons other than Stoner Contracting's authorized account users, after reasonable investigation Stoner Contracting is without information or knowledge sufficient to form a belief as to the truth of these averments so that the same are deemed denied and proof demanded. 32. After reasonable investigation, Stoner Contracting is without information or knowledge sufficient to form a belief as to the truth of the averments describing Plaintiff's reasonable expectations so that these averments are deemed denied and proof demanded. In further response,nevertheless, as set forth in paragraph 31 above, Stoner Contracting f (. assumed that supplies and materials purchased by its authorized account users on its behalf were not supplied gratuitously. 33. The averments of paragraph 33 are conclusions of law to which no responsive pleading is required. In further response, Stoner Contracting denies that it was ever advised that any personal guarantee was required in order to purchase supplies and materials on credit. 34. The averments of paragraph 34 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,without specific identification of the building materials and supplies to which this paragraph refers, after reasonable investigation Stoner Contractor is without information or knowledge sufficient to form a belief as to the truth of the averments so that the averments are therefore deemed denied and proof demanded. 35. The averments of paragraph 35 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,without specific identification of the building materials and supplies to which this paragraph refers, after reasonable investigation Stoner Contractor is without infonnation or knowledge sufficient to form a belief as to the truth of the averments so that the averments are therefore deemed denied and proof demanded. 36. Admitted in part and denied in part. Stoner Contracting's response to paragraph 10 is hereby incorporated by reference. 37. The avennents of paragraph 37 are conclusions of law to which no response is required. In further response,nevertheless,the averments are denied on the basis of the i f responses set forth in paragraphs 10,21 and 47-66,which are hereby incorporated by reference. 38. The averments of paragraph 38 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,the averments are denied and Stoner Contracting's responses to paragraphs 10 and 31 are hereby incorporated by reference. 39. The averments of paragraph 39 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,the averments are denied and Stoner Contracting's responses to paragraphs 10 and 31 are hereby incorporated by reference. WHEREFORE, Stoner Contracting demands that Plaintiff s Complaint be dismissed with prejudice and it be awarded fees, cost of suit and such other and further relief as this Honorable Court deems just and appropriate. COUNT IV—CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT Carter Lumber Company,Inc.v. Stoner Contracting Group,LLC 40. The averments of the foregoing paragraphs are hereby incorporated by reference as if set forth in full. 41. The avennents of paragraph 41 are conclusions of law to which no responsive pleading is required. In further response,nevertheless, as set forth herein,the averments are denied. Stoner Contracting has not wrongfully and without reasonable justification withheld payment from Plaintiff. 42. The averments of paragraph 42 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,the averments are denied I and the responses set forth in paragraphs 10,21 and 47-66 are hereby incorporated by reference. 43. The averments of paragraph 43 are conclusions of law to which no responsive pleading is required. WHEREFORE, Stoner Contracting demands that Plaintiff s Complaint be dismissed with prejudice and that it be awarded fees,cost of suit and such other and further relief that this Honorable Court deems just and appropriate. COUNT IV(sic)—ATTORNEYS FEES AND COSTS Plaintiff v.All Defendants 44. The foregoing paragraphs are incorporated by reference as if set forth in full. 45. Denied. Exhibit"A"is a written document which speaks for itself, and Stoner Contracting denies the accuracy and completeness of any attempt by Plaintiff to describe, characterize or selectively quote therefrom. In further response thereto,the response to paragraph 8 is hereby incorporated by reference. 46. The averments of paragraph 46 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,for the reasons set forth herein, and in particular the responses to paragraphs 10 and 21, Stoner Contracting denies the accuracy of Plaintiffs attempt to characterize the nature of this action. WHEREFORE, Stoner Contracting demands that Plaintiff s Complaint be dismissed with prejudice and that it be awarded fees,cost of suit and such other and further relief as this Honorable Court deems just and appropriate. NEW MATTER 47. Count I of the Complaint fails to state a valid claim upon which relief can be granted against Stoner Contracting. 48. Count III of the Complaint fails to state a valid claim upon which relief can be granted against Stoner Contracting. 49. Count IV(Contractor and Subcontractor Payment Act) fails to state a valid claim upon which relief can be granted against Stoner Contracting. 50. Court IV(sic)(Attorneys Fees and Costs)fails to state a valid claim upon which relief can be granted against Stoner Contracting. 51. Stoner Contracting avers on information and belief that the components of Plaintiff s claims against Stoner Contracting relate to no more than three residential building projects. 52. Plaintiff,through its agent,Jeff Sibert,was aware of the material and supply allowances provided for in Stoner Contracting's contract with its customers,Terry and Claudia Cook. 53. On various occasions,Plaintiff,through its agent,Jeff Sibert,met directly with Terry and/or Claudia Cook in order to encourage them to select materials and supplies for the construction project at their residence without representatives of Stoner Contracting being present or involved in the selections. 54. Plaintiff,primarily through Mr. Sibert, caused materials and supplies to be charged to the Stoner Contracting account without the knowledge and consent of Stoner Contracting and without the orders being authorized by one of the four Stoner Contracting authorized account users. 55. Plaintiff,primarily through Mr. Sibert,encouraged Terry and Claudia Cook to purchase materials and supplies exceeding in cost their allowances under their construction contract with Stoner Contracting. 56. Plaintiff,primarily through Mr. Sibert,failed to regularly and timely advise Stoner Contracting of supplies and materials and related quantities and costs being ordered by Terry and Claudia Cook. 57. Plaintiff failed to send timely and accurate invoices to Stoner Contracting with respect to materials and supplies allegedly ordered by it but which were actually being ordered by Terry and Claudia Cook. 58. Plaintiff failed to respond timely and completely to various account questions posed to it by Stoner Contracting. 59. Plaintiff regularly and routinely shipped excessive materials to the Stoner Contracting job site and then failed timely to pick up and remove the excess materials when requested to do so. 60. Plaintiff failed to process credits to Stoner Contracting's account based upon material that should never have been delivered and invoiced in the first place. 61. Stoner Contracting avers on information and belief that Plaintiff compensated its agent,Jeff Sibert,in part,on a commission basis based upon the cost of materials and supplies Mr. Sibert sold. 62. Stoner Contracting avers on information and belief that Mr. Sibert, acting in his capacity as Plaintiff s employee,deliberately encouraged Terry and Claudia Cook to order supplies and materials beyond their allowances in order to generate more personal commission compensation to him. 63. Stoner Contracting avers on information and belief that Mr. Sibert caused excessive materials to regularly be delivered to the Stoner Contracting job site so that he would generate commissions on those alleged sales. 64. Plaintiff failed to act in good faith and in accordance with reasonable commercial standards in its dealings with Stoner Contracting. 65. Stoner Contracting never agreed to any increase in its credit limit beyond $10,000. 66. On the basis of the foregoing and other facts that may be developed through discovery, some or all of Plaintiff's claims may be barred in whole or in part by the defenses of consent, duress,estoppel,failure/lack of consideration, fraud,illegality,impossibility of performance,justification,laches,payment, statute of frauds, statute of limitations,unclean hands, unconscionability and waiver. Stone Contracting reserves the right to plead and raise such further and additional defenses as may be applicable following discovery and further investigation. WHEREFORE, Stoner Contracting demands that Plaintiff's Complaint be dismissed with prejudice and that it be awarded fees, cost of suit and such other and further relief as this Honorable Court deems appropriate. SAIDIS, SULLIVAN &ROGERS Date: �a,.,.,b-�-. ay iank 3 Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717-243-6222 -Phone 717-243-6486 -Fax dsullivan(a,ssr-attorneys.com Attorneys for Stoner Contracting Group, LLC VERIFICATION I, Fred E. Stoner,Member of Stoner Contracting Group, LLC,hereby verify that I am authorized to make this Verification, and that the facts set forth in the foregoing document are true and correct to the best of my knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904,relating to unworn falsification to authorities. F '. Stoner CERTIFICATE OF SERVICE I hereby certify that on this Q k day of 1'1�cew.�4o r, 2013, a true and correct copy of the foregoing document was served upon the party listed below, via First Class Mail,postage prepaid, addressed as follows: Joshua J. Bovender, Esquire John f.Yaninek, Esquire Thomas, Thomas &Hafer, LLP P. O. Box 999 Harrisburg, PA 17108-0999 SAIDIS, SULLIVAN&ROGERS Daniel L. Sullivan,Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717-243-6222 -Phone 717-243-6486 - Fax dsullivan(a,ssr-attome s Jam. �..-- Exhibit "E" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW CARTER LUMBER COMPANY, Plaintiff No. 13-2125 Civil Term V. STONER CONTRACTING GROUP,LLC, FRED E. STONER and MICHAEL A. STONER, Defendants NOTICE TO PLEAD t , ; TO: Carter Lumber Company =, c/o Joshua J.Bovender,Esquire John F.Yaninek,Esquire Thomas,Thomas&Hafer,LLP 305 North Front Street P. O. Box 999 Harrisburg,PA 17108 You are hereby notified to file a written response to the enclosed New Matter within twenty(20) days from service hereof or a judgment may be entered against you. SAIDIS, SULLIVAN&ROGERS Date-k Daniel L. Sullivan,Esquire Attorney Id. 34548 26 West High Street Carlisle,PA 17013 717-243-6222 - Phone 717-243-6486 - Fax dsullivanna,ssr-attome sum Attorneys for Fred E. Stoner and Michael A. Stoner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW CARTER LUMBER COMPANY, Plaintiff No. 13-2125 Civil Term V. STONER CONTRACTING GROUP,LLC, FRED E. STONER and MICHAEL A. STONER, Defendants ANSWER AND NEW MATTER OF DEFENDANTS FRED E. STONER AND MICHAEL A.STONER AND NOW this 211, day of 2013, come Defendants,Fred E. Stoner and Michael A. Stoner(collectively referred to as"Defendants"),by their attorneys, Saidis, Sullivan&Rogers, and file the following Answer and New Matter to Plaintiff's Complaint: 1. Admitted on information and belief. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part and denied as stated in part. It is admitted that at times Fred E. Stoner and Michael A. Stoner acted within the course and scope of their employment with Stoner Contracting Group, LLC("Stoner Contracting"). Because the phrase"[a]t all times material hereto"is indefinite and imprecise,Defendants are unable to respond with specificity with respect to any particular action on their part as being within or without the course and scope of their employment. 6. Admitted in part and denied as stated in part. It is admitted that at times Fred E. Stoner and Michael A. Stoner acted with apparent and actual authority to conduct and transact business on behalf of Stoner Contracting. Because the phrase "[a]t all times material hereto"is indefinite and imprecise,Defendants are unable to respond with specificity with respect to any particular conduct or transaction of business that may have been performed on behalf of Stoner Contracting. 7. Admitted. 8. Admitted in part and denied in part. It is admitted that Fred Stoner and Michael Stoner signed a document similar to the first page of Exhibit"A"on behalf of Stoner Contracting on or about March 10,2010. However,Defendants deny the remaining averments of this paragraph. When the document was presented to them for execution in person by Plaintiff's representative,Jeff Sibert,Mr. Sibert described to them that it was simply a credit application and dismissed any significance to the second page of Exhibit"A" (which was not pointed out to them or presented to them by Mr. Sibert or otherwise provided to them by Plaintiff) . Mr. Sibert encouraged them to quickly complete and sign the first page and return it to him. The document signed by Fred Stoner and Mike Stoner did not include the scratched-out sections or some of the handwriting appearing at the top of Exhibit"A." The document provided to Fred and Michael Stoner did not include the handwritten credit limit of"$10,000.00." Further,the block checked as"yes, sign me up" was not checked on the form signed by Fred Stoner and Michael Stoner. The averment that Exhibit"A"is a valid and enforceable contract is a conclusion of law to which no responsive pleading is required. 9. Admitted in part and denied in part. As set forth in paragraph 8, above, which is hereby incorporated by reference,Fred Stoner and Michael Stoner executed a document similar to the first page of Exhibit"A." The remaining averments of this paragraph are conclusions of law to which no responsive pleading is required. 10. Admitted in part and denied in part. It is admitted that at one or more times one of the authorized account users from Stoner Contracting ordered building supplies and materials from Plaintiff. However,Defendants aver on information and belief that various building supplies and materials which purportedly were ordered on behalf of Stoner Contracting were ordered by persons others than the four persons authorized as account users on the first page of Exhibit"A." Without specific identification and production of supporting documents with respect to each and every item of building supplies and material allegedly ordered on behalf of Stoner Contracting, after reasonable investigation Defendants are unable to admit or deny that Stoner Contracting ordered any particular building supplies and materials at issue herein, so that these averments are deemed denied and proof demanded.. 11. After reasonable investigation,Defendants are without knowledge or information sufficient to form a belief as to the specific dates on which Stoner Contracting's authorized account users made purchases on the Yard Account or ordered any particular building supplies or materials, so that these avennents are deemed denied and proof demanded. I 12. Admitted in part and denied in part. Defendants admit on information and belief that Stoner Contracting's last payment was made on or about December 21, 2011. The phrase in this paragraph averring that Stoner Contracting"continued to make payments"is unclear and imprecise, so that this averment is deemed denied and proof demanded. 13. The averments of paragraph 13 are conclusions of law to which no responsive pleading is required. 14. Admitted in part and denied in part;Defendants' responses to paragraphs 11 and 12 are hereby incorporated by reference. 15. After reasonable investigation,Defendants are without infonnation or knowledge sufficient to form a belief as to the truth of the averments of paragraph 15 so that these averments are deemed denied and proof demanded; Defendants' response to paragraph 10 is hereby incorporated by reference. 16. The averments of paragraph 16 are conclusions of law to which no responsive pleading is required. 17. The averments of paragraph 17 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,Defendants' responses to paragraphs 10,21 and the New Matter allegations set forth in paragraphs 47- 66 are hereby incorporated by reference. 18. The averments of paragraph 18 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,the document identified as Exhibit"A' is a written document which speaks for itself, and Defendants deny the accuracy and completeness of any attempt by Plaintiff to describe, characterize, or selectively quote therefrom. 19. The averments of paragraph 19 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,the document identified as Exhibit"A' is a written document which speaks for itself, and Defendants deny the accuracy and completeness of any attempt by Plaintiff to describe, characterize, or selectively quote therefrom. COUNT I—BREACH OF CONTRACT Carter Lumber v. Stoner Contracting Group,LLC Breach of Yard Account Agreement 20.-24. Count I,paragraphs 20—24 are directed at a Defendant other than Fred E. Stoner and Michael A. Stoner so that no response by them is required. COUNT H—BREACH OF CONTRACT Carter Lumber v.Fred E. Stoner&Michael A. Stoner Breach of Personal Guarantees 25. The foregoing paragraphs are incorporated herein by reference as if set forth at length herein. 26. The averments of this paragraph constitute conclusions of law to which no responsive pleading is required. In further response,nevertheless,Defendants deny that Stoner Contracting breached the Yard Account Agreement. Plaintiff, acting primarily through its authorized agent and employee,Jeff Sibert,undertook a persistent course of conduct not in good faith and not in accordance with any agreement or reasonable commercial standard,whether set forth in the Yard Account Agreement or otherwise. In particular,Plaintiff,primarily through Mr. Sibert,failed to communicate with Stoner Contracting in a timely and meaningful manner,failed to invoice in a tunely manner, failed to respond meaningfully and promptly to account questions, and failed to keep Stoner Contracting apprised of the status of its account throughout the course of its dealings with Stoner Contracting. Defendants further aver on information and belief that Plaintiff, primarily through Mr. Sibert,interacted directly and extensively with Stoner Contracting customers Terry and Claudia Cook regarding selections for their house which was being remodeled without involving a representative of Stoner Contracting in the selection,pricing or ordering process. Mr. Sibert persuaded Mr. and Mrs. Cook to order material beyond their contracted allowance, despite Mr. Sibert knowing the Cooks'contract allowance on the items under discussion. Mr. Sibert constantly caused to be shipped excessive materials to the Cook job site and failed to pick up excess shipments in a timely manner. Plaintiff, through Mr. Sibert or-others in Plaintiff s billing department,failed to timely,regularly and properly advise Stoner Contracting of the material allegedly being purchased on its behalf through its account and failed to process invoices and credits in a timely and proper manner. Plaintiff charged various materials and supplies to Stoner Contracting's account without those materials and supplies being ordered by any of Stoner Contracting's authorized account users. 27. The averments of paragraph 27 are conclusions of law to which no responsive pleading is required. 28. The averments of paragraph 28 are conclusions of law to which no responsive pleading is required. WHEREFORE,Defendants demand that Plaintiff s Complaint be dismissed with prejudice and that they be awarded fees, cost of suit and such other and further relief as this Honorable Court deems just and appropriate. COUNT III—UNJUST ENRICHMENT Carter Lumber Company,Inc.v.All Defendants 29. The responses to the foregoing paragraphs are incorporated herein as if the same were set forth at length. 30. Admitted in part and denied in part. Defendants' response to paragraph 10 is hereby incorporated by reference. 31. Admitted in part and denied in part. It is admitted that when Stoner Contracting ordered supplies and materials by its authorized account users it assumed Plaintiff was not providing the supplies and materials gratuitously. With respect to supplies and materials ordered by persons other than Stoner Contracting's authorized account users, after reasonable investigation Defendants are without information or knowledge sufficient to form a belief as to the truth of these averments so that the same are deemed denied and proof demanded. 32. After reasonable investigation,Defendants are without infonnation or knowledge sufficient to fonn a belief as to the truth of the averments describing Plaintiff s reasonable expectations so that these averments are denied and proof demanded. In further response,nevertheless, as set forth in paragraph 31 above,Defendants assumed that supplies and materials purchased by authorized account users on Stoner Contracting's behalf were not supplied gratuitously. i 33. The averments of paragraph 33 are conclusions of law to which no responsive pleading is required. In further response,Defendants deny that they were ever advised that any personal guarantee was required in order for Stoner Contracting to purchase supplies and materials on credit. 34. The averments of paragraph 34 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,without specific identification of the building materials and supplies to which this paragraph refers, after reasonable investigation Defendants are without information or knowledge sufficient to form a belief as to the truth of the averments so that the averments are therefore deemed denied and proof demanded. 35. The averments of paragraph 35 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,without specific identification of the building materials and supplies to which this paragraph refers, after reasonable investigation Defendants are without information or knowledge sufficient to form a belief as to the truth of the averments so that the averments are therefore deemed denied and proof demanded. 36. Admitted in part and denied in part. Defendants' response to paragraph 10 is hereby incorporated by reference. 37. The averments of paragraph 37 are conclusions of law to which no response is required. In further response,nevertheless,the averments are denied on the basis of the responses set forth in paragraphs 10,26 and 47-66,which are hereby incorporated by reference. 38. The avennents of paragraph 38 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,the averments are denied and Defendants' responses to paragraphs 10 and 31 are hereby incorporated by reference. 39. The averments of paragraph 39 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,the averments are denied and Defendants' responses to paragraphs 10 and 31 are hereby incorporated by reference. WHEREFORE,Defendants demand that Plaintiff's Complaint be dismissed with prejudice and they be awarded fees, cost of suit and such other and further relief as this Honorable Court deems just and appropriate. COUNT IV—CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT Carter Lumber Company,Inc.v. Stoner Contracting Group,LLC 40.-43. The averments of Court IV,paragraphs 40—43, are directed at a Defendant other than Fred E. Stoner and Michael A. Stoner so that no response by them is required. COUNT IV(sic)—ATTORNEYS FEES AND COSTS Plaintiff v.All Defendants 44. The foregoing paragraphs are incorporated by reference as if set forth in full. 45. Denied. Exhibit"A"is a written document which speaks for itself, and Defendants deny the accuracy and completeness of any attempt by Plaintiff to describe, characterize or selectively quote therefrom. In further response thereto,the response to paragraph 8 is hereby incorporated by reference. 46. The averments of paragraph 46 are conclusions of law to which no responsive pleading is required. In further response,nevertheless,for the reasons set forth herein, and in particular the responses to paragraphs 10 and 26,Defendants deny the accuracy of Plaintiff s attempt to characterize the nature of this action. WHEREFORE,Defendants demand that Plaintiff s Complaint be dismissed with prejudice and that they be awarded fees,cost of suit and such other and further relief as this Honorable Court deems just and appropriate. NEW MATTER 47. Count II of the Complaint fails to state a valid claim upon which relief can be granted against Defendants. 48. Count III of the Complaint fails to state a valid claim upon which relief can be granted against Defendants. 49. Court IV(sic) (Attorneys Fees and Costs)fails to state a valid claim upon which relief can be granted against Defendants. 50. Plaintiff procured Defendants' signatures on the first page of the document labeled Yard Account Agreement by having its employee,Mr. Sibert,present the document to them in person,describe the document simply as an account application, dismiss any significance to any other page of the document,encourage Defendants to quickly complete and sign the first page and return it to him, fail to make any mention of any personal guaranty component or that provision of a personal guaranty was required in order for Plaintiff to extend credit terms to Stoner Contracting,or at any time providing notice that any alleged personal guaranty was accepted. i 51. Plaintiff,through its agent,Jeff Sibert,was aware of the material and supply allowances provided for in Stoner Contracting's contact with its customers,Terry and Claudia Cook. 52. On various occasions,Plaintiff,through its agent,Jeff Sibert,met directly with Terry and/or Claudia Cook in order to encourage them to select materials and supplies for the construction project at their residence without representatives of Stoner Contracting being present or involved in the selections. 53. Plaintiff,primarily through Mr. Sibert, caused materials and supplies to be charged to the Stoner Contracting account without the knowledge and consent of Stoner Contracting and without the orders being authorized by one of the four Stoner Contracting authorized account users. 54. Plaintiff,primarily through Mr. Sibert, encouraged Terry and Claudia Cook to purchase materials and supplies exceeding in cost their allowances under their construction contract with Stoner Contracting. 55. Plaintiff,primarily through Mr. Sibert, failed to regularly and timely advise Stoner Contracting of supplies and materials and related quantities and costs being ordered by Terry and Claudia Cook. 56. Plaintiff failed to send timely and accurate invoices to Stoner Contracting with respect to materials and supplies allegedly ordered by it but which were actually being ordered by Terry and Claudia Cook. 57. Plaintiff failed to respond timely and completely to various account questions posed to it by Stoner Contracting. i 58. Plaintiff regularly and routinely shipped excessive materials to the Stoner Contracting job site and then failed timely to pick up and remove the excess materials when requested to do so. 59. Plaintiff failed to process credits to Stoner Contracting's account based upon material that should never have been delivered and invoiced in the first place. 60. Defendants aver on information and belief that Plaintiff compensated its agent,Jeff Sibert,in part,on a commission basis based upon the cost of materials and supplies Mr. Sibert sold. 61. Defendants aver on information and belief that Mr. Sibert, acting in his capacity as Plaintiff s employee, deliberately encouraged Terry and Claudia Cook to order supplies and materials beyond their allowances in order to generate more personal commission compensation to him. 62. Defendants aver on information and belief that Mr. Sibert caused excessive materials to regularly be delivered to the Stoner Contracting job site so that he would generate commissions on those alleged sales. 63. Plaintiff failed to act in good faith and in accordance with its contract obligations and reasonable commercial standards in its dealings with Stoner Contracting and Defendants. 64. Defendants never agreed to any increase or change in the credit limit of $10,000 applicable to Stoner Contracting. 65. Defendants never agreed to any extension in time for payment of Stoner Contracting's account payments,the addition of any authorized account users, or any other modification of the underlying account teens. 64. On the basis of the foregoing and other facts that may be developed through discovery, some or all of Plaintiff s claims may be barred in whole or in part by the defenses of consent, duress, estoppel, failure/lack of consideration, fraud,illegality,impossibility of performance,justification,laches,novation,payment, statute of frauds, statute of limitations, unclean hands,unconscionability, and waiver. Defendants reserve the right to plead and raise such further and additional defenses as may be applicable following discovery and further investigation. WHEREFORE,Defendants demand that Plaintiff s Complaint be dismissed with prejudice and that they be awarded fees, cost of suit and such other and further relief as this Honorable Court deems appropriate. SAIDIS, SULLIVAN &ROGERS Date: 2y 203 ► d-o.�� F— Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle,PA 17013 717-243-6222 -Phone 717-243-6486 - Fax dsullivan(cTssr-attome s� coin Attorneys for Fred E. Stoner and Michael A. Stoner i VERIFICATION I, Fred E. Stoner, hereby verify that the facts set forth in the foregoing document are true and correct to the best of my knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904,relating to unworn falsification to authorities. Fr Wt. Stoner VERIFICATION I, Michael A. Stoner, hereby verify that the facts set forth in the foregoing document are true and correct to the best of my knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904,relating to unworn falsification to authorities. Michael A. Stoner �flftffl.WOMAN- i t CERTIFICATE OF SERVICE I hereby certify that on this a LAI day of 1��e.t.�sc r , 2013, a true and correct copy of the foregoing document was served upon the party listed below, via First Class Mail, postage prepaid, addressed as follows: Joshua J. Bovender, Esquire John f.Yaninek, Esquire Thomas, Thomas &Hafer, LLP P. O. Box 999 Harrisburg, PA 17108-0999 SAIDIS, SULLIVAN &ROGERS Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717-243-6222 - Phone 717-243-6486 -Fax dsullivan@ssr-attomeys.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CARTER LUMBER COMPANY, Plaintiff No. 13-2125 Civil Term V. STONER CONTRACTING GROUP, LLC, FRED E. STONER and MICHAEL A. STONER, Defendants V. M TERRY COOK and CLAUDIA COOK, wr mu Additional Defendants r «- iw ACCEPTANCE OF SERVICE - cr• I, David A. Fitzsimons, Esquire, hereby accept service of the Joinder Complaint in the above-referenced matter on behalf of Additional Defendants Terry Cook and Claudia Cook and represent that I am authorized to do so. MARTSON LAW ICES Date: Cam`' By David A. Fitzsimons t... ! // rr wilte 31 etilveRI 41111. In THOMAS,THOMAS&HAFER,LLP peNNS y11©C(jU John F.Yaninek,Esquire rA/j/ ��,� Attorney ID#55741 A Joshua J.Bovender,Esquire Attorney ID#314001 P.O.Box 999 Harrisburg,PA 17108-0999 717-237-7153 jbovender@tthlaw.com Attorneys for Plaintiff CARTER LUMBER COMPANY, IN THE COURT OF COMMON PLEAS 601 Talmadge Road CUMBERLAND CO.,PENNSYLVANIA Kent, OH 44240, Plaintiff v. NO. 13-2125 Civ STONER CONTRACTING GROUP,LLC 706 Somerset Drive Mechanicsburg,PA 17055, CIVIL ACTION—LAW FRED E. STONER, 706 Somerset Drive Mechanicsburg,PA 17055 MICHAEL A. STONER, 300 Walnut Circle Shiremanstown,PA 17011, Defendants PLAINTIFF'S ANSWER TO DEFENDANTS FRED E. STONER AND MICHAEL A. STONER'S NEW MATTER AND.NOW,"comes Plaintiff, Carter Lumber Company, by and through its counsel, Thomas, Thomas&Hafer, LLP, and files its Answer to the New Matter of Defendants Fred E. Stoner and Michael A. Stoner, as follows: 47. Denied. Paragraph 47 represents a conclusion of law to which no response is required. 48. Denied. Paragraph 48 represents a conclusion of law to which no response is required. 49. Denied. Paragraph 49 represents a conclusion of law to which no response is required. 50. Denied. Plaintiff denies the use of any improper techniques in obtaining Defendants' signatures as alleged in this paragraph. The terms of the agreement are expressly detailed therein, and Defendants, being sophisticated businessmen, were free to accept or reject Plaintiff's offer to enter into the agreement. 51. Denied. Plaintiff denies that its agent, Jeff Siebert, was aware of the specific contractual arrangements relating to material and supply allowances maintained by Stoner Contracting and its customers, Terry and Claudia Cook,pursuant to Pa.R.C.P. 1029(c). 52. Admitted in part and denied in part. It is admitted that Jeff Siebert had previously been in contact with Terry and/or Claudia Cook. The balance of the allegations in this paragraph relating to Jeff Siebert's intentions or representations are denied. 53. Denied. Plaintiff denies improperly causing any supplies or materials to be purchased as all such conduct was in accordance with the contractual arrangement between Plaintiff and Defendants. 54. Denied. Plaintiff specifically denies inducing Terry and Claudia Cook to breach their agreement with Defendant Stoner Contracting. 55. Denied. Plaintiff denies failing to regularly and timely advise Stoner Contracting of materials and related supplies being purchased, as Plaintiff acted at all times material hereto in accordance with its contractual agreement with Defendant Stoner Contracting and Defendant Fred E. Stoner and Michael A. Stoner. 56. Denied. Plaintiff denies failing to timely send accurate invoices to Defendant Stoner Contracting. 57. Denied. Plaintiff denies failing to respond to Defendant Stoner Contracting. 58. Denied. Plaintiff denies shipping any excessive materials or failing to remove such materials from the subject job site as Plaintiff's conduct was, at all times material hereto, in accordance with the contractual arrangement between Plaintiff, Defendant Stoner Contracting, Fred E. Stoner and Michael A. Stoner. 2 59. Denied. Plaintiff denies failing to process any credits to Stoner Contracting's account as all such materials were purchased in accordance with Plaintiff's contractual agreement with Defendant Stoner Contracting,LLC,Fred E. Stoner and Michael A. Stoner. 60. Admitted in part and denied in part. It is admitted that Jeff Siebert was compensated on a commission basis. The balance of the allegations contained in this paragraph are denied. 61. Denied. Plaintiff denies any deliberate encouragement on the part of its agents or employees in obtaining the purchase of supplies and materials. 62. Denied. Plaintiff denies any conduct on the part of its agents or employees aimed at causing excessive materials to be delivered to the Stoner Contracting job site for the purpose of personal profit. 63. Denied. Plaintiff denies failing to act in good faith and in accordance with its contractual agreement with Defendant Stoner Contractor,Fred E. Stoner and Michael A. Stoner. 64. Denied. Plaintiff denies the allegation contained in Paragraph 64 as Defendant's purchase of supplies and materials was at all times material hereto in accordance with the contractual agreement between Stoner Contracting and Plaintiff. 65. Denied. Defendants agreed to a credit limit increase with Plaintiff. 64 [sic]. Denied. The New Matter affirmative defenses asserted in this paragraph are conclusions of law to which no response is required. WHEREFORE, Plaintiff respectfully demands judgment in its favor and against.Defendants Fred E. Stoner and Michael A. Stoner. Respectfully submitted, THOMAS THOMAS &HAFER,LLP By: oshua J. svender,Esqu' e John F.Yanine , squire Date: I 3a 1' 3 CERTIFICATE OF SERVICE I, Gwen M. Cleck, an employee of the law firm of Thomas, Thomas&Hafer,LLP,hereby certify that I served the foregoing document on the following by placing same in the United States mail, postage prepaid, and addressed as follows: Daniel L. Sullivan,Esquire Saidis, Sullivan&Rogers 26 West High Street Carlisle,PA 17013 Gwen M. Cleck Date: 1423360.1 k — "10 1 two 7, /. 204 80A, THOMAS,THOMAS&HAFER,LLP PEA LAfiLl John'F.Yaninek,Esquire ��S YL Vq 0UN'7"}> Attorney ID#55741 4 Joshua J.Bovender,Esquire Attorney ID#314001 P.O.Box 999 Harrisburg,PA 17108-0999 717-237-7153 jbovender@tthlaw.com Attorneys for Plaintiff CARTER LUMBER COMPANY, IN THE COURT OF COMMON PLEAS 601 Talmadge Road CUMBERLAND CO.,PENNSYLVANIA Kent,OH 44240, Plaintiff v. NO. 13-2125 Civ STONER CONTRACTING GROUP,LLC 706 Somerset Drive Mechanicsburg, PA 17055, CIVIL ACTION-LAW FRED E. STONER, 706 Somerset Drive Mechanicsburg,PA 17055 MICHAEL A. STONER, 300 Walnut Circle Shiremanstown,PA 17011, Defendants PLAINTIFF'S ANSWER TO DEFENDANT STONER CONTRACTING GROUP,LLC'S NEW MATTER AND NOW,;,comes Plaintiff, Carter Lumber Company, by.and through its counsel, Thomas, .. Thomas & Hafer, LLP, and files its Answer to the New Matter of Defendant Stoner Contracting Group, LLC, as follows: 47. Denied. Paragraph 47 represents a conclusion of law to which no response is required. 48. Denied. Paragraph 48 represents a conclusion of law to which no response is required. 49. Denied. Paragraph 49 represents a conclusion of law to which no response is required. 50. Paragraph 50 represents a conclusion of law to which no response is required. 51. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph pursuant to Pa.R.C.P. 1029(e)and proof thereof is demanded. 52. Denied. Plaintiff denies the averments contained in this paragraph pursuant to Pa.R.C.P. 1029(c). 53. Admitted in part and denied in part. Plaintiff, through its agent, Jeff.Siebert, admits to having met directly with Terry and/or Claudia Cook. The balance of the allegations contained in this paragraph are denied pursuant to Pa.R.C.P. 1029(c). 54. Denied. Plaintiff denies causing materials and supplies to be charged to the Stoner Contracting account through any improper means as Plaintiff's conduct was, at all times, in accordance with the contractual agreement between Plaintiff and Stoner Contracting. 55. Denied. Plaintiff denies encouraging Terry and/or Claudia Cook to purchase materials in violation of their cost allowances as Plaintiff's conduct was, at all times, in accordance with the contractual agreement between Plaintiff and Stoner Contracting. 56. Denied. Plaintiff denies failing to properly advise Stoner Contracting of supplies and materials and related quantities and costs being ordered as Plaintiff's conduct was, at all times, in accordance with its contractual agreement between Plaintiff and Stoner Contracting. 57. Denied. Plaintiff denies failing to send the proper invoices to Stoner Contracting. 58. Denied. Plaintiff denies failing to appropriately respond to various account questions posed by Stoner Contracting. 59. Denied. Plaintiff denies any excessive shipments or failure to remove excess materials at the subject job site. 60. Denied. Plaintiff denies failing to process credits to Stoner Contracting's account as the material was properly purchased and delivered. 61. Admitted in part and denied in part. It is admitted Mr. Siebert worked on a commission basis. The balance of the allegations contained in this paragraph are denied. 2 62. Denied. Plaintiff denies that Mr. Siebert deliberately encouraged Terry and/or Claudia Cook to order supply materials beyond their allowances in order to generate more personal compensation to Mr. Siebert. 63. Denied. Plaintiff denies it caused excessive materials to be delivered to the Stoner Contracting job so that Mr. Siebert could generate commissions on the alleged sales. 64. Denied. Plaintiff denies failing to act in good faith in accordance with reasonable commercial standards in its dealings with Stoner Contracting. 65. Denied. Defendants agreed to an increase of their credit limit. 66. Denied. The New Matter defenses asserted in this paragraph are conclusions of law to which no response is required. WHEREFORE, Plaintiff respectfully demands judgment in its favor and against Defendant Stoner Contracting Group,LLC. Respectfully submitted, THOMAS,THOMAS &HAFER,LLP 4111),- By: i/1/► rshua J. ovender :I uire John F. Yaninek,Esquire Date: i'2?0 I • 3 CERTIFICATE OF SERVICE I, Gwen M. Cleck, an employee of the law firm of Thomas, Thomas&Hafer,LLP,hereby certify that I served the foregoing document on the following by placing same in the United States mail, postage prepaid, and addressed as follows: Daniel L. Sullivan,Esquire Saidis, Sullivan&Rogers 26 West High Street Carlisle,PA 17013 Gwen M. Cleck Date: 1423852.1 Z(JtG FEB _S P111 2; 23 THOMAS,THOMAS&HAFER,LLP t tjo C , John F.Yaninek,Esquire S Y L VAN CA Attorney.ID#55741 Joshua J.Bovender,Esquire Attorney ID#314001 P.O.Box 999 Harrisburg,PA 17108-0999 717-237-7153 jovender @tthlaw.com Attorneys for Plaintiff CARTER LUMBER COMPANY, IN THE COURT OF COMMON PLEAS 601 Talmadge Road CUMBERLAND CO., PENNSYLVANIA Kent, OH 44240, Plaintiff V. NO. 13-2125 Civ STONER CONTRACTING GROUP, LLC 706 Somerset Drive Mechanicsburg, PA 17055, CIVIL ACTION—LAW FRED E. STONER, 706 Somerset Drive Mechanicsburg, PA 17055 MICHAEL A. STONER, 300 Walnut Circle Shiremanstown, PA 17011, Defendants PRAECIPE TO ATTACH VERIFICATION TO THE PROTHONOTARY: G . Please append the attached Attorney Verification to Plaintiff's Answer to Defendant Stoner Contracting Group, LLC's New Matter, filed on January 31, 2014 Respectfully submitted, THOMAS ;MA FER, LLP By: oshu Esquire John F. , squire Date: VERIFICATION I, Joshua J. Bovender, Esquire, state that I am the attorney for the parry filing the foregoing document; that I make this Affidavit as an attorney because I have sufficient knowledge or information and belief, based upon my investigation of the matters averred or denied in the foregoing document; that time is of the essence in the filing of this document; and that this statement is made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. THOMAS, THOMAS, &HAFER,LLP Jo a . B vender, Esquir DATE: 2 1 38603-1 CERTIFICATE OF SERVICE I, Gwen M. Cleck, an employee of the law firm of Thomas, Thomas&Hafer,LLP, hereby certify that I served the foregoing document on the following by placing same in the United States mail, postage prepaid, and addressed as follows: Daniel L. Sullivan, Esquire Saidis, Sullivan &Rogers 26 West High Street Carlisle, PA 17013 David Alan Fitzsimons, Esquire Martson Deardorff,et al. 10 E High Street Carlisle, PA 17013 Gwen M. Cleck Date: W..,, FES 'S Ply . U g h 23 THOMAS THOMAS&HAFER LLP 5 " I Out. . John F.Yaninek,Esquire }� Attorney ID#55741 1�y NIA Y Joshua J.Bovender,Esquire Attorney ID#314001 P.O.Box 999 Harrisburg,PA 17108-0999 717-237-7153 jbovender@tthlaw.com Attorneys for Plaintiff CARTER LUMBER COMPANY, IN THE COURT OF_COMMON PLEAS 601 Talmadge Road CUMBERLAND CO.,PENNSYLVANIA Kent, OH 44240, Plaintiff V. NO. 13-2125 Civ STONER CONTRACTING GROUP, LLC 706 Somerset Drive Mechanicsburg, PA 17055, CIVIL ACTION—LAW FRED E. STONER, 706 Somerset Drive Mechanicsburg,PA 17055 MICHAEL A. STONER, 300 Walnut Circle Shiremanstown,PA 17011, Defendants PRAECIPE TO ATTACH VERIFICATION TO THE PROTHONOTARY: Please append the attached Attorney Verification to Plaintiff's Answer to Defendants Fred E. Stoner and Michael A; Stoner's New Matter,filed on January 31, 2014. Respectfully submitted, THOMAS, THOMAS &HAFER,LLP By. -- os ua r, Esquire John F. Yaninek,Esquire Date: 1� i VERIFICATION I, Joshua J. Bovender, Esquire, state that 1.am the attorney for the parry filing the foregoing document; that I make this Affidavit as an attorney because I have sufficient knowledge or information and belief, based upon my investigation of the matters averred or denied in the foregoing document; that time is of the essence in the filing of this document; and that this statement is made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. THOMAS, THOMAS, &HAFER,LLP J ua J. Bo nder, Esquire DATE: Z �� 38603-1 6:. Y CERTIFICATE OF SERVICE I, Gwen M. Cleck, an employee of the law firm of Thomas, Thomas& Hafer, LLP,hereby certify that I served the foregoing document on the following by placing same in the United States mail, postage prepaid,and addressed as follows: Daniel L. Sullivan,Esquire Saidis, Sullivan &Rogers 26 West High Street Carlisle, PA 17013 David Alan Fitzsimons, Esquire Martson Deardorff,et al. 10 E High Street Carlisle, PA 17013 C��K 9, Gwen M. Cleck Date: THOMAS, THOMAS & HAFER, LLP John F. Yaninek, Esquire Attorney 1D # 55741 Joshua J. Bovender, Esquire Attorney ID # 314001 P.O. Box 999 Harrisburg, PA 17108-0999 717-237-7153 jbovender@tthlaw.com Attorneys for Plaintiff - OFFAE or PRO IffatiO R ;KR 161 AM 11: 04 'CUM-BERLAND COUNTY - PENNSYLVANIA CARTER LUMBER COMPANY, 601 Talmadge Road Kent, OH 44240, Plaintiff V. STONER CONTRACTING GROUP, LLC, FRED E. STONER, and MICHAEL A. STONER, Defendants V. TERRY COOK and CLAUDIA COOK, Additional Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA NO. 13-2125 Civ CIVIL ACTION — LAW PLAINTIFF'S ANSWER TO ADDITIONAL DEFENDANTS TERRY COOK AND CLAUDIA COOK'S NEW MATTER AND COUNTERCLAIMS AND NOW, comes Plaintiff, Carter Lumber Company, by and through its counsel, Thomas, Thomas & Hafer, LLP, and files its Answer to the New Matter and Counterclaims of Additional Defendants Terry Cook and Claudia Cook, as follows: 56. Denied. The averments of Paragraphs 1 through 55 are denied. 57-68. Denied. Plaintiff, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the matter asserted in these paragraphs. These paragraphs are therefore denied pursuant to Pa.R.C.P. 1029(c). 69. Denied. This paragraph references pleadings, which are written documents, and therefore speak for themselves. By way of further response, Plaintiff specifically denies any implications or inferences Terry Cook or Claudia Cook may make with respect thereto. 70-77. Denied. Plaintiff, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the matter asserted in these, paragraphs. These paragraphs are therefore denied pursuant to Pa.R.C.P. I029(c). 78. Admitted. 79-82. Denied. Plaintiff, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the matter asserted in these paragraphs. These paragraphs are therefore denied pursuant to Pa.R.C.P. 1029(c). 83. Denied. This paragraph represents a conclusion of law to which no response is required. To the extent a response is required, the allegations contained in this paragraph are further denied pursuant to Pa.R.C.P. 1020(c). 84. This New Matter defense constitutes a denial, to which no response is required. To the extent a response is required, the allegations contained in this paragraph are denied pursuant to Pa. R.C.P. 1029(c). 85. Denied. This paragraph represents a conclusion of law to which no response is required. To the extent a response is required, the allegations contained in this paragraph are further denied pursuant to Pa.R.C.P. 1020(c), 85, Denied. The amount in dispute in this action is specifically alleged in Plaintiff's Complaint, a written document which speaks for itself. 87. Admitted. 88. Denied. Plaintiff, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the matter asserted in this paragraph. This paragraph is therefore denied pursuant to Pa.R.C.P. 1029(c). 2 WHEREFORE, Plaintiff respectfully demands judgment in its favor and against Defendants Stoner Contracting, Fred H. Stoner, and Michael A. Stoner, and/or Additional Defendants Terry Cook and Claudia Cook. BREACH OF CONTRACT Terry Cook and Claudia Cook v. Stoner Contracting Group, LLC 89-90. Denied. The averments contained in this paragraph are directed to a party other than Plaintiff. Said allegations are therefore denied. WHEREFORE, Plaintiff respectfully demands judgment in its favor and against Defendants Stoner Contracting, Fred H. Stoner, and Michael A. Stoner, and/or Additional Defendants Terry Cook and Claudia Cook. Date: Respectfully submitted, THOMAS, THOMAS & HAFER, LLP u.J. ovende squire John F. Yaninek, Esquire VERIFICATION I, Joshua J. Bovender, Esquire, state that I am the attorney for the party filing the foregoing document; that I make this Affidavit as an attorney because I have sufficient knowledge or information and belief, based upon my investigation of the matters averred or denied in the foregoing document; that time is of the essence in the filing of this document; and that this statement is made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unworn falsification to authorities. DATE: THOMAS, THOMAS, & HAFER, LLP CERTIFICATE OF SERVICE I, Gwen M. Deck, an employee of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I served the foregoing document on the following by placing same in the United States mail, postage prepaid, and addressed as follows: Daniel L. Sullivan, Esquire Saidis, Sullivan & Rogers 26 West High Street Carlisle, PA 17013 David Alan Fitzsimons, Esquire Martson Deardorff, et al. 10 E High Street Carlisle, PA 17013 Date: 1462289.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CARTER LUMBER COMPANY, Plaintiff No. 13-2125 Civil Term v. STONER CONTRACTING GROUP, LLC, FRED E. STONER and MICHAEL A. STONER, • Defendants v. -la a TERRY COOK and CLAUDIA COOK, Additional Defendants NOTICE TO PLEAD TO: Terry and Claudia Cook c/o David A. Fitzsimons, Esq. Marton Law Offices 10 East High Street Carlisle, PA 17013 "ID You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof, or a default judgment may be entered against you. SAIDIS, SULLIVAN & ROGERS Date: ifV\ 'Cij" By DANIEL L. SULLIVAN Attorney I.D. #34548 26 West High Street Carlisle, PA 17013 Phone: (717) 243-6222 Email: dsullivan@ssr-attorneys.com Attorney for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CARTER LUMBER COMPANY, Plaintiff No. 13-2125 Civil Term v. STONER CONTRACTING GROUP, LLC, FRED E. STONER and MICHAEL A. STONER, Defendants v. TERRY COOK and CLAUDIA COOK, Additional Defendants REPLY TO NEW MATTER AND ANSWER WITH NEW MATTER OF STONER CONTRACTING GROUP, LLC TO ANSWER WITH NEW MATTER AND COUNTERCLAIM OF ADDITIONAL DEFENDANTS TERRY COOK AND CLAUDIA COOK AND NOW, comes Stoner Contracting Group, LLC ("Stoner Contracting"), by its attorneys, Saidis, Sullivan & Rogers, and files the following Reply to New Matter and Answer with New Matter to Answer with New Matter and Counterclaim of Additional Defendants Terry Cook and Claudia Cook ("Cooks"): 56. The averments of paragraphs 1 — 55 of Stoner Contracting's Joinder Complaint are hereby incorporated by reference. 57. Denied. On the contrary, at various times representatives of Stoner Contracting communicated with the Cooks and advised that certain of their selections exceeded allowance amounts. In further response, the contract documents set forth allowance amounts for various components of the construction contract so that these amounts were known to the Cooks so that they could readily compare the allowance amount with the cost of materials they selected. 58. Denied. Stoner Contracting's administration of the project was not consistently and uniformly poor. In further response, Stoner Contracting's representatives did not "make themselves unavailable" or otherwise refuse to engage in the selection of materials. On the contrary, Stoner Contracting's administration of the project and availability on the project were proper and appropriate. 59. The averments of paragraph 59 are conclusions of law to which no responsive pleading is required. 60. Denied. Stoner Contracting representatives were appropriately present at the project site to perform the necessary work and did not refuse to participate when supplies and materials needed to be ordered in order to keep the project moving. 61. Denied. While at times the Cooks communicated with Stoner Contracting regarding what had been ordered and what had been delivered, it is denied that they "at all times" did so. 62. The averments of paragraph 62 appear to be a conclusion of law to which no responsive pleading is required. To the extent a response is required, assuming that "this" refers to the selection and ordering of material, both Stoner Contracting and the Cooks had appropriate roles in this responsibility, and it is denied that Stoner Contracting failed to undertake their responsibility on the construction job. 2 63. After reasonable investigation, Stoner Contracting is without information or knowledge sufficient to form a belief as to the Cooks' independent knowledge or lack of independent knowledge so that this averment is denied. 64. The averments of paragraph 64 are conclusions of law to which no responsive pleading is required. 65. The averments of paragraph 65 are conclusions of law to which no responsive pleading is required. 66. After reasonable investigation, Stoner Contracting is without information or knowledge sufficient to form a belief as to the Cooks' knowledge or lack of knowledge so that this averment is denied. 67. The averments of paragraph 67 appear to be conclusions of law to which no responsive pleading is required. In further response, nevertheless, the phrase "responsibility to obtain selections and to order materials through its suppliers" is unclear and Stoner Contracting is therefore unable to respond further. 68 Denied. On the contrary, Stoner Contracting exercised proper and appropriate administration under the circumstances. In further response, changes in the project were discussed at various times with the Cooks during the project and to the extent known to them, advised the Cooks of the ongoing cost of materials being installed into the project. 69. Denied. Stoner Contracting had appropriate knowledge of the materials utilized in the project, though not always in advance, but the pleadings reflect that it is unable to determine from the invoices submitted by Carter Lumber the precise components of the invoices which reflect material ordered directly by the Cooks. 70. Denied. Stoner Contracting was ready, willing and able to complete remaining portions of the project and to work with the Cooks to address any complaints regarding their perception of poor workmanship or incomplete work. It appears that the Cooks determined to cease payments and stop communicating with Stoner Contracting near the end of the project when it became clear that, as had been discussed throughout the project, Stoner Contracting expected to be paid for changes in the project requested by the Cooks and for the difference in the cost of materials that exceeded contract allowances. 71. Denied. It is denied that substantial portions of the work performed by Stoner Contracting failed a minimum standard of workman-like product and craftsmanship or that certain materials were "improperly installed so they have to be replaced," Stoner Contracting does not fully understand the averment that it has not and "cannot account" for what supplies were installed and when, if at all, because the averment is vague and unclear. 72. After reasonable investigation, Stoner Contracting is without information or knowledge sufficient to form a belief regarding the averment that additional materials were left stacked at the home and never installed by Stoner Contracting. To the best of Stoner Contracting's belief the Cooks' house was left clean. Stoner Contracting further denies that it did not confer "substantial benefit" to the Cooks beyond the amounts already paid. 73. The averments of paragraph 73 are conclusions of law to which no responsive pleading is required. In further response, nevertheless, Stoner Contracting denies any duty to "account." 74. Denied. As set forth in the Joinder Complaint, the value of the materials, supplies and services provided to the Cooks exceeds the amount they have already paid, which is known or should be known by the Cooks. 4 75. Denied. As set forth in the Joinder Complaint, the value of the materials, supplies and services provided to the Cooks exceeds the amount they have already paid. 76. While Stoner Contracting acknowledges the Cooks denial, the accuracy of the denial is denied, and as set forth in the Joinder Complaint, Stoner Contracting asserts on the contrary that the reasonable value on the unpaid materials, supplies and services is $66,883.00. 77. Denied. On the contrary, there is a dispute between Stoner Contracting and Carter Lumber regarding the payment of funds to Carter Lumber, which dispute is set forth in detail in the Complaint and corresponding Answer with New Matter between Carter Lumber and Stoner Contracting already filed in this case, which pleadings are hereby incorporated by reference. 78. After reasonable investigation, Stoner Contracting is currently without information or knowledge sufficient to form a belief as to the precise nature of the interaction between the Cooks and Carter Lumber with regard to the provision of materials by Carter on the Cooks' project. With respect to the averments regarding what Stoner Contracting has or has not already paid to Carter, the averments of Stoner Contracting's Answer and New Matter to Carter Lumber's Complaint are hereby incorporated by reference. 79. The averments of paragraph 79 are conclusions of law to which no responsive pleading is required. In further response, nevertheless, Stoner Contracting denies the Cooks' descriptions of alleged inept, unworkmanlike and poor performance and further denies that Stoner Contracting owes any money to the Cooks. On the contrary, as set forth 5 in the Joinder Complaint, the Cooks owe Stoner Contracting a considerable amount of money. 80. Denied. Stoner Contracting has not categorized as change orders materials and work within the original scope of work. Stoner Contracting does not understand the phrase "admitting in its own pleadings that it is unable to account for costs on the project" since the averment is vague and unclear, so that Stoner Contracting is unable to respond further. 81. The averments of paragraph 81 are conclusions of law to which no responsive pleading is required. 82. Admitted in part and denied in part. It is admitted that the Cooks have made certain payments to Stoner Contracting. The Cooks have not paid all sums due to Stoner Contracting and that is a significant factor why Carter Lumber has not been paid. 83. Denied. The Cooks misunderstand and misinterpret Stoner Contracting's averment at paragraph 30, which is in writing and which speaks for itself. 84. While Stoner Contracting acknowledges the Cooks' denial, Stoner Contracting denies the accuracy of that denial and incorporates by reference paragraph 74- 76 of this Reply. 85. The averments of paragraph 85 are conclusions of law to which no responsive pleading is required. 86. The averments of paragraph 86 are conclusions of law to which no responsive pleading is required. 87. Admitted in part and denied in part. It is admitted that, to the best of Stoner Contracting's information, no one other than Stoner Contracting incorporated materials into 6 the Cook project. The remaining averments of this paragraph with respect to being able to "detail such work" is vague and unclear so that Stoner Contracting cannot respond further. 88. Denied. The original plumbing subcontractor was paid for the work he did as the work was completed. A replacement subcontractor performed the remaining plumbing work and was paid for this work. The Cooks are responsible to pay plumbing costs whether in the original contract or change orders irrespective of the identity of the plumbing subcontractors. WHEREFORE, Stoner Contracting requests judgment against Terry and Claudia Cook as set forth in the Joinder Complaint. BREACH OF CONTRACT Terry Cook and Claudia Cook v. Stoner ContractingGroup, LLC 89. The averments of the preceding paragraphs of this Reply to New Matter as well as the assertions of the Joinder Complaint are hereby incorporated by reference as if fully set forth. 90. Denied. The averments of paragraph 90 are conclusions of law to which no responsive pleading is required. In further response, nevertheless, Stoner Contracting states: a. it fulfilled its obligations as general contractor; b. it properly supervised subcontractors and employees; it is denied that its subcontractors and employees on numerous occasions performed construction services in an unworkmanlike manner which failed to reach the appropriate standard of expected workmanship and utility; 7 c. it coordinated appropriately between owners, suppliers and subcontractors except on those occasions when owners and suppliers excluded Stoner Contracting from their communications and interactions; d. it followed the design drawings. After reasonable investigation Stoner Contracting is without information or knowledge sufficient to form a belief regarding the alleged "clear directions provided to [themj" so that this averment is denied and proof demanded. In further response, Stoner Contracting alleges that the Cooks initially advised Stoner Contracting that they would not be residents of the property while the remodeling was ongoing; e. after reasonable investigation, Stoner Contracting is without information or knowledge sufficient on the belief regarding the allegation of purchased materials left uninstalled and storage at the property so that this averment is denied; f. Stoner Contracting installed the joists for the floor in accordance with the plans. Stoner Contracting does not understand the use of the term "design concept" as used in this averment so it cannot respond further. g. Stoner Contracting denies that it installed bamboo interior finished floors in violation of the installation instructions; h. Stoner Contracting denies that various trim and finishes throughout the project were improperly installed in an unworkmanlike manner; i. Stoner Contracting denies that cabinet installation in bathrooms and the kitchen was incomplete, and avers on the contrary that at no time while Stoner Contracting was on the job site did the Cooks complain of any incomplete work. Stoner Contracting further denies that cabinets had damaged finishes, inoperable or unbalanced doors and drawers or poor and missing trim while it was on the job site, and avers on the contrary that at no time while Stoner Contracting was on the job site did the Cooks raise said complaints to Stoner Contracting. j. Stoner Contracting denies that painting was not properly performed. In further response, Stoner Contracting was ready, willing and able to address painting concerns expressed by the Cooks; k. Stoner Contracting denies that framing of new interior doors and closure of door frame spaces in walls was improperly and inadequately performed; 1. the response to subparagraph (h) is hereby incorporated by reference; rn. it is denied the closet shelving systems were not properly installed. After reasonable investigation, Stoner Contracting is without information or knowledge sufficient to form a belief regarding the averments that closet shelving systems have failed so that this averment is denied; n. Stoner Contracting admits only that certain cement siding to be installed in the rear porch area was not installed because the Cooks denied Stoner Contracting access to the job site. The Cooks had instructed Stoner Contracting to store old kitchen cabinets on the rear porch which prevented safe and adequate access to the job site. The Cooks refused to move the cabinets to allow the work to be performed. Stoner Contracting denies that material for completion of the work was left in the back of the property. o. Stoner Contracting denies that aluminum trim on the garage is mismatched, and avers further that at no time prior to the Cooks refusing Stoner Contracting access to the job site did the Cooks complain of any mismatched trim. P. it is admitted that final grading was not complete due to the time of year (Winter) when the Cooks refused to allow Stoner Contracting to complete any further work; q. access from the basement to the areas under the addition was made at the Cooks' request and was not something done for the benefit of Stoner Contracting. While discussions had been held about installing doors on access areas, the Cooks refused to communicate with Stoner Contracting or allow completion of certain items before any final decision was made or work performed. NEW MATTER 91. The Cooks knew from the Construction Contract that various components of the Contract Price included an allowance for items to be selected later by them. 92. To the extent items selected by the Cooks exceeded the contract allowance price, the Cooks knew that they were required to pay the difference between the allowance price and actual price for the products they selected as an increase to the construction contract price. 93. The Cooks failed to submit many of their selections of contract allowance items in writing to Stoner Contracting. 94. During the course of the construction project, the Cooks on numerous occasions acknowledged to representatives of Stoner Contracting that they were responsible for any cost increases occasioned by their changes and their selection of materials which exceeded the contract allowances. 95. In approximately late January/February, 2012, the Cooks denied Stoner Contracting further access to the job site to complete any remaining work. 96. The Cooks refused to provide a punch list of alleged incomplete or unsatisfactory work. 97. The Cooks failed to cooperate with Stoner Contracting in formulating a punch list of alleged incomplete or unsatisfactory work. 98. At all times Stoner Contracting was ready, willing and able to complete work on the project, but the Cooks refused. 11 99. At all times Stoner Contracting was ready, willing and able to work with the Cooks to formulate an agreeable punch list of alleged incomplete and deficient work and to perform said work, but the Cooks refused. 100. As a result of the foregoing, the Cooks' claims against Stoner Contracting are barred in whole or in part by their own breach of the construction contract and/or by the doctrines of waiver, consent, novation or estoppel. WHEREFORE, Stoner Contracting demands that the Cooks' Counterclaim be dismissed with prejudice and it be awarded such other relief as the Court deems appropriate, included but not limited to costs of suit. Date: -4^ a�i , 2014 SAIDIS, SULLIVAN & ROGERS Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717- 243 -6222 - Phone 717- 243 -6486 - Fax dsullivan @ssr- attorneys.com Attorneys for Stoner Contracting Group, LLC 12 VERIFICATION I, Fred E. Stoner, Member of Stoner Contracting Group, LLC, hereby verify that I am authorized to make this Verification, and that the facts set forth in the foregoing document are true and correct to the best of my knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. 12 CERTIFICATE OF SERVICE I hereby certify that on this a 1 day of , 2014, a true and correct copy of the foregoing document was served upon the parties listed below, via First Class Mail, postage prepaid, addressed as follows: David A. Fitzsimons, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Joshua J. Bovender, Esquire John F. Yaninek, Esquire Thomas, Thomas & Hafer, LLP P. O. Box 999 Harrisburg, PA 17108 -0999 SAIDIS, SULLIVAN & ROGERS Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717 - 243 -6222 - Phone 717- 243 -6486 - Fax dsullivan@ssr-attorneys.com 14 A F:\FILES \Clients \14687 Cook114687.1.response to stoner new matter.wpd Revised: 4/23/14 4:45PM David A. Fitzsimons, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 41722 10 East High Street Carlisle, PA 17013 (717) 243 -3341 Attorneys for Additional Defendants Terry Cook and Claudia Cook FILED-OFFICE OF THE PROTHONOTARY 2014 APR 30 Ptf 1:36 CUMBERLAND COUNTY PENNSYLVANIA CARTER LUMBER COMPANY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. STONER CONTRACTING GROUP, LLC, : FRED H. STONER and MICHAEL A. STONER, Defendants v. TERRY COOK and CLAUDIA COOK, Additional Defendants NO. 2013 -2125 CIVIL ACTION - LAW ADDITIONAL DEFENDANTS' RESPONSE TO NEW MATTER OF DEFENDANT STONER CONTRACTING GROUP, LLC 91. Denied. The averments of Paragraph 91 of New Matter are conclusions of law to which no response is required by the Pa. R.C.P. To the extent that a response is required, the construction contract being an instrument in writing speaks for itself, and to the extent that the averments and conclusions of Paragraph 91 are inconsistent therewith, they are denied. 92. Denied. The averments of Paragraph 92 of New Matter are conclusions of law to which no response is required by the Pa. R.C.P. To the extent that a response is required, the construction contract being an instrument in writing speaks for itself and to the extent that the averments and conclusions of Paragraph 92 are inconsistent therewith, they are denied. By way of further response, Stoner Contracting and its representatives absented themselves from the selection process early in construction and did not provide timely or accurate input on the cost of selections. Moreover, based upon the allowances specifically provided under contract and the quoted price of Y the contract for completion of what was essentially a remodeling project, it is believed and therefore averred that Stoner Contracting has been compensated beyond the fair value of the items incorporated into the property and the quality of the construction therein. 93. Denied. It is denied that the Cooks failed to submit many of their selections of contract allowance items in writing to Stoner Contracting. On the contrary, Stoner refused to engage in the selection process and provided next -to -no information to the Cooks regarding allowances for various items. 94. Denied. The averments of Paragraph 94 ofNew Matter constitute conclusions of law to which no response is required by the Pa. R.C.P. To the extent that a response is required, Stoner was advised on bidding for the contract to ensure that it provided adequate allowances particularly for kitchen cabinetry and counter -tops to ensure a project of quality components and workmanship. The price submitted by Stoner certainly appears to have covered the inclusion of appropriate materials; the workmanship and installation fell far short of an appropriate standard and is solely the responsibility of Stoner. By way of further response, Stoner has failed to account in any way for its alleged calculation of increased allowances on the part of the Cooks. 95. Denied. The averments of Paragraph 95 of the New Matter of the Reply is a conclusion of law to which no response is required by the Pa. R.C.P. To the extent that a response is required, it is specifically denied that Stoner was "denied further access to the job site to complete any remaining work." On the contrary, by that time frame Stoner had long stopped working on the project or providing appropriately skilled levels of workmanship on the project and any efforts in that time frame being undertaken by Stoner were merely resulting in more poor workmanship and inadequate construction services. 96. Denied. It is specifically denied that the Cooks refused to provide a punch list of alleged incomplete or unsatisfactory work. On the contrary, the Cooks generated and provided a substantial list of the incomplete and unsatisfactory work, much of which still remains today. 97. It is specifically denied that the Cooks failed to cooperate with Stoner Contracting in formulating a punch list. On the contrary, the Cooks generated and provided a substantial list of the incomplete and unsatisfactory work, much of which still remains today. By way of further response, Stoner Contracting, through its principal, at the relevant time period regressed to a campaign of letter writing, false accusations and attempts at criminal prosecution of the Cooks rather than facing up to the inadequacy of work performed by its forces and their inability to document the materials that they themselves installed in the Cook residence. 98. Denied. The averments of Paragraph 98 are conclusions of law to which no response is required by the Pa. R.C.P. To the extent that a response is required, it is specifically denied that indeed at any time Stoner Contracting was ready, willing and able to complete the work on the project. To the contrary, Stoner voiced both in writing and in person on more than one occasion its displeasure with the Cook project and demonstrated on many more occasions its inability to ably complete work on the project. 99. Denied. The averments of Paragraph 99 are conclusions of law to which no response is required by the Pa. R.C.P. To the extent that a response is required, it is denied that at all times Stoner Contracting was ready, willing and able to work with the Stoners to formulate an agreeable punch list. To the contrary, please refer to the Responses to Paragraphs 96 -98 above which are incorporated by reference as if fully set forth. 100. Denied. The averments of Paragraph 100 are conclusions of law to which no response is required by the Pa. R.C.P. To the extent that a response is required, it is specifically denied that the Cooks in any way breached the construction contract or are barred by the doctrines of waiver, consent, novation or estoppel. WHEREFORE, Additional Defendants Terry and Claudia Cook and Counter Claim Plaintiffs against Stoner Contracting Group, LLC, pray that the Court will dismiss Stoner's claims with prejudice and award damages for breach of contract, poor performance, and poor workmanship on the part of Stoner Contracting in an amount exceeding $50,000.00, which is the compulsory arbitration threshold under the Pa. R.C.P. and Cumberland County Local Rule, together with the award of such other relief as the Court deems appropriate, including but not limited to costs and interest. Date: MARTSON LA N By OFFICES David A. Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 (717) 243 -3341 Attorneys for Additional Defendants VERIFICATION We, Terry Cook and Claudia Cook, hereby verify that we have reviewed the foregoing document and state that to the extent that the foregoing document contains facts supplied by or known to us, they are true and correct to the best of our knowledge, information and belief. We understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Response was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Daniel L. Sullivan, Esquire LAW OFFICES OF SAIDIS, SULLIVAN & ROGERS 26 West High Street Carlisle, PA 17013 John F. Yaninek, Esquire THOMAS, THOMAS & HAFER 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 MARTSON LAW OFFICES Dated: 1-113thq By / j A Tricia D. ' ckenroad Ten East igh Street Carlisle, PA 17013 (717) 243-3341 F. \FILES \Clients \14687 Cook \14687. 1.pral. wpd Revised: 5/13/14 3,57PM i IJ David A. Fitzsimons, Esquire 7.0 14 MAY 1 S AM 10: 27 MARTSON DEARDORFF WILLIAMS OTTO GILROY &'L LAND COUNTY MARTSON LAW OFFICES PENNSYLVANIA I.D. 41722 10 East High Street Carlisle, PA 17013 (717) 243 -3341 Attorneys for Additional Defendants Terry Cook and Claudia Cook CARTER LUMBER COMPANY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 2013 -2125 : CIVIL ACTION - LAW STONER CONTRACTING GROUP, LLC, : FRED H. STONER and MICHAEL A. STONER, Defendants v. TERRY COOK and CLAUDIA COOK, Additional Defendants PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Additional Defendants hereby demand a twelve juror jury trial in the above captioned action. MARTSON LAW OFFICES David A. Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 (717) 243 -3341 Attorneys for Additional Defendants CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Daniel L. Sullivan, Esquire LAW OFFICES OF SAIDIS, SULLIVAN & ROGERS 26 West High Street Carlisle, PA 17013 Joshua J. Bovender, Esquire THOMAS, THOMAS & HAFER 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 MARTSON LAW OFFICES Dated: Sfij51 /1 Tricia D. " i kenroad Ten East High Street Carlisle, PA 17013 (717) 243 -3341 THOMAS, THOMAS & HAFER, LLP John F. Yaninek, Esquire Attorney ID # 55741 Joshua J. Bovender, Esquire Attorney ID # 314001 P.O. Box 999 Harrisburg, PA 17108-0999 717-237-7153 jbovender@tthlaw.com Attorneys for Plaintiff 201t� OFF HON -3 PH 1 CUNDERL AND RENNSYLVANI NT't 42 CARTER LUMBER COMPANY, Plaintiff v. STONER CONTRACTING GROUP, LLC, FRED E. STONER, and MICHAEL A. STONER, Defendants v. TERRY COOK and CLAUDIA COOK, Additional Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA NO. 13-2125 Civ CIVIL ACTION — LAW PLAINTIFF'S MOTION FOR STATUS CONFERENCE AND NOW, comes the Plaintiff, Carter Lumber Company ("Plaintiff'), by and through its counsel, Thomas, Thomas and Hafer, LLP, and respectfully files this Motion for Status Conference, averring as follows: 1. This matter was initiated on April 19, 2013 by the filing of a Praecipe for Writ of Summons and stems from an alleged breach of contract. 2. On December 6, 2013, Plaintiff filed a Complaint naming Stoner Contracting Group, LLC, Fred E. Stoner, and Michael A. Stoner as Defendants. 3. On January 24, 2014, Stoner Contracting Group, LLC joined Terry Cook and Claudia Cook as Additional Defendants. 4. Written discovery has been exchanged, but no parties/witnesses have been deposed. 5. Plaintiff requests a status conference in this matter for the purposes of scheduling deadlines for the completion of discovery, exchange of expert reports, and the scheduling of a date certain for trial. 6. Pursuant to Pa.R.C.P. 212.3(a)(2), the Court may, on motion of any party, direct the attorneys for the parties to appear for a conference to consider, inter alia, "the entry of a scheduling order." See Pa.R.C.P. 212.3(a)(2). 7. On May 30, 2014, counsel for Plaintiff advised all counsel of record of his intent to request a Status Conference. A true and correct copy of the May 30, 2014 correspondence is attached hereto at Exhibit "A." 8. All Counsel of record concur in the filing of the instant motion. WHEREFORE, Plaintiff, Carter Lumber Company, respectfully requests that this Honorable Court grant Plaintiff's Motion for Status Conference and assign this matter to a Judge for a status conference, for the purpose of entering certain case management deadlines. Respectfully submitted, THOMAS HOMAS & HAFER, LLP Date: 6 ILI 2 . Bovender, Es John F. anin kr quire 'ti_ THOMAS, THOMAS & HAFERLLP Attorneys At Law Street Address: 305 North Front Street, Harrisburg, PA 17101 Mailing Address: P.O. Box 999, Harrisburg, PA 17108 Phone: 717.237.7100 Fax: 717.237.7105 Joshua.]: Bovender (717) 237-7153 jbovender@tthlaw. corn May 30, 2014 David Alan Fitzsimons, Esquire Martson Deardorff, et al. 10 E High Street Carlisle, PA 17013 Daniel L. Sullivan, Esquire Saidis, Sullivan & Rogers 26 West High Street Carlisle, PA 17013 RE: Carter Lumber Company v. Stoner Contracting Group, Inc. Cumberland County C.C.P. No. 13-2125 Dear Counsel: Enclosed with this correspondence please find Plaintiff Carter Lumber Company, Inc.'s Supplemental Response to the Request for Production of Documents. Included are the following: 1. Email documentation of Darwin Waybright's prior email correspondence regarding the purchase of materials from Carter Lumber Company; 2. Recently discovered Carter Lumber Company invoices relating to materials purchased for the construction of the subject property; 3. Carter Lumber Company customer inquiry noting the outstanding balance of the subject property; and 4. Finance Charge Report dated March 4, 2014, of Carter Lumber Company, Inc. EXHIBIT A Harrisburg,., Bethlehem Pittsburgh Philadelphia Wilkes-Barre Baltimore, MD Clinton, NJ www.tthlaw.com THOMAS, THOMAS & HAFER LLP Daniel L. Sullivan, Esquire David Alan Fitzsimons, Esquire May 30, 2014 Page 2 In moving forward with this matter, we will be requesting a Status Conference with the Court in order to establishment case management deadlines. Please contact me with any objections you may have to our request for the conference. Sincerely, THOMAS, THOMAS & HAFER, LLP By: JJB/gmc:1511907.1 Enclosure Joshua J. Bovender CERTIFICATE OF SERVICE I, Joshua J. Bovender, Esquire, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I served the foregoing document on the following by placing same in the United States mail, postage prepaid, and addressed as follows: Date: Z //11 1511413.1 Daniel L. Sullivan, Esquire Saidis, Sullivan & Rogers 26 West High Street Carlisle, PA 17013 David Alan Fitzsimons, Esquire Martson Deardorff, et al. 10 E High Street Carlisle, PA 17013 THOMAS, THOMAS & HAFER, LLP i" LED -OI: I 'CE. THE PR0 H0N0 TAl ? 291b, JUN —5 PM -Lc Un. CUMBERLAND LANUNTY IA CARTER LUMBER COMPANY, Plaintiff v. STONER CONTRACTING GROUP, LLC, FRED E. STONER, and MICHAEL A. STONER, Defendants v. TERRY COOK and CLAUDIA COOK, Additional Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA NO. 13-2125 Civ CIVIL ACTION — LAW AND NOW, this ORDER �i day of consideration of Plaintiff's Motion for Status Conference, 2014, upon it is hereby ORDERED and DECREED that a Status Conference is hereby scheduled before the undersigned, to be held on CULI CA.4.• t 1 I , 2014, at /1'00 4-.M. in Chambers. All counsel are ORDERED to attend same. BY THE COURT: 1513233.1 C°ALL -gaLcuac) fritissk A44-(1�.-4as,rn°&'4 1. 4 J.�6 i CARTER LUMBER COMPANY, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. STONE CONTRACTING GROUP, LLC, : FRED E. STONER, and MICHAEL A. : STONER, DEFENDANTS V. TERRY COOK and CLAUDIA COOK, : ADDITIONAL DEFENDANTS : 13-2125 CIVIL TERM AND NOW, this IN RE: STATUS CONFERENCE ORDER OF COURT /(6 day of August, 2014, following a status conference with counsel, which Plaintiff requested to establish scheduling deadlines, pursuant to Pa.R.C.P. 212.3(a)(5) the court finds that this matter is imminently appropriate for resolution by mediation. Therefore, the court defers for a period of ninety (90) days the scheduling of deadlines for the completion of discovery, and the scheduling of a date certain for trial. During this ceasefire, we DIRECT counsel and the litigants to use their best efforts to resolve this matter via alternative dispute resolution measures. Further, we DIRECT counsel to continue the discussions commenced in chambers regarding an appropriate mediator and, if at all possible, to agree on a mediator within fourteen (14) days of this order. Should the efforts to resolve this matter within ninety (90) days prove fruitless, counsel may request a telephonic status conference with the court at which time we will establish a time frame for the expeditious resolution of this case. Finally, counsel and their clients are advised to heed the admonition of our 16th President: Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, and expenses, and waste of time. Joshua J. Bovender, Esquire Matt Clayberger, Esquire P.O. Box 999 Harrisburg, PA 17108-0999 For Plaintiff Daniel L. Sullivan, Esquire 26 West High Street Carlisle, PA 17013 For Defendants David Alan Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 For Additional Defendants :sal 'es 02_,ILEct.._ s���//y By the Court, Albert H. Masland, J. THOMAS, THOMAS & HAFER, LLP John F. Yaninek, Esquire Attorney ID # 55741 Joshua J. Bovender, Esquire Attorney 1D # 314001 P.O. Box 999 Harrisburg, PA 17108-0999 717-237-7153 jbovender@tthlaw.com Attorneys for Plaintiff _ 1 L k 2 i11 NO 13 API I9:39 COUN PENNSYLVANIA CARTER LUMBER COMPANY, Plaintiff v. STONER CONTRACTING GROUP, LLC, FRED E. STONER, and MICHAEL A. STONER, Defendants v. TERRY COOK and CLAUDIA COOK, Additional Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA NO. 13-2125 Civ CIVIL ACTION — LAW PLAINTIFF'S MOTION FOR STATUS CONFERENCE FOLLOWING FAILURE TO RESOLVE THE PARTIES' CLAIMS AT MEDIADTION AND'"NOW;' come' the' Pluntiff Carter Lumber Company ("Plaintiff'), by and through its counsel, Thomas, Thomas and Hafer, LLP, and respectfully files this Motion for Status Conference following the parties' recent unsuccessful attempt to mediate their claims, averring as follows: 1. This construction debt collection case originated by the filing a Writ of Summons on April 19, 2013, and an ensuing Complaint on December 6, 2013. 2. Subsequent to the commencement of Plaintiff's action, Defendant Stoner Contracting, Fred E. Stoner, and Michael A. Stoner joined as Additional Defendants Terry and Claudia Cook, the homeowners for the property at which the vast majority of the subject construction alleged in Plaintiff's Complaint took place. 3. Following Plaintiff's June 2, 2014, Motion for a Status Conference and the Court's ensuing August 11, 2014 Order, the parties submitted their claims to mediation with David Lehman, Esquire, in Harrisburg, Pennsylvania. 4. The parties attended mediation on November 6, 2014, but were unable to resolve their claims. 5. While Plaintiff compromised a substantial portion of the alleged debt, and while the Stoner Defendants made a good faith offer to contribute to the potential settlement of Plaintiff's claims, Additional Defendants Terry Cook and Claudia Cook did not participate in good faith with the settlement negotiations and did not contribute a 'meaningful offer to resolve the Stoner Defendants' claims against them. 6. As a result, the mediation was unsuccessful. 7. This Court's August 11, 2014 Order provides that "should the efforts to resolve this matter within 90 days prove fruitless, counsel may request a telephonic status conference WithIhe' Court at which time we will establish a time frame for the expeditious resblution of this case." 8. Pursuant to Pa.R.C.P. 212.3(a)(2), the Court may, on Motion of any party, direct the attorneys for the parties to appear for a conference to consider, inter alia, "the entry of a scheduling order." See, Pa.R.C.P. 212.3(a)(2). 2 9. Plaintiff therefore requests a telephonic Status Conference so that the Court may provide the parties with case management deadlines to facilitate the expeditious resolution of this case. WHEREFORE, Plaintiff, Carter Lumber Company, respectfully requests that this Honorable Court enter a Scheduling Order in the form proposed scheduling a telephonic Status Conference in order to establish case management deadlines. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Date: it lk 4 3 CERTIFICATE OF SERVICE I, Gwen M. Cleck, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I served the foregoing document on the following by placing same in the United States mail, postage prepaid, and addressed as follows: Daniel L. Sullivan, Esquire Saidis, Sullivan & Rogers 26 West High Street Carlisle, PA 17013 David Alan Fitzsimons, Esquire Martson Deardorff, et al. 10 E High Street Carlisle, PA 17013 THOMAS, THOMAS & HAFER, LLP B Date: //—/-/' 1608472.1 PILED-OFFIaEl OF THE PROTHONOTAO" 2.0 14 NOV 18 Atl 10: CUME3ERLANO COUNTY PENNSYLVANIA. CARTER LUMBER COMPANY, Plaintiff v. STONER CONTRACTING GROUP, LLC, FRED E. STONER, and MICHAEL A. STONER, Defendants v. TERRY COOK and CLAUDIA COOK, Additional Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA NO. 13-2125 Civ CIVIL ACTION — LAW AND NOW, this ORDER day of consideration of Plaintiff's Motion for Status Conference, it is hereby ORDERED and DECREED that a Telephonic Status Conference is hereby scheduled to be held on aetydiez. , 2014, at /1:30 A.M. Plaintiffs counsel will arrange the Status Conference. All counsel are ORDERED to attend same. BY THE COURT: 1513233.1 tes ftcts- f444.t J . oCL ft.f. 2.4.11.0A -L) 1944/ - iZ42.0;710,0s ////e/Pi 1 F:\FILES\Clients\14687 Cook \14687. I. response to motion for status conference.wpd Revised: 12/4/14 1:28PM David A. Fitzsimons, Esquire MARTSON LAW OFFICES I.D. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Additional Defendants Terry Cook and Claudia Cook t i'R0THONG 20111 OEC PH 3: 03 CUMBERLAND COUNT y PENNSYLVANIA CARTER LUMBER COMPANY, Plaintiff v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2013-2125 : CIVIL ACTION - LAW STONER CONTRACTING GROUP, LLC, : FRED H. STONER and MICHAEL A. STONER, Defendants v. TERRY COOK and CLAUDIA COOK, Additional Defendants : JURY TRIAL DEMANDED ADDITIONAL DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR STATUS CONFERENCE AND NOW, comes the Additional Defendants, Terry Cook and Claudia Cook, concurring with the request for a Status Conference; however, objecting to inaccurate characterizations in the original Motion and requesting that the Conference be held in person: 1. Admitted with clarification: this is a debt collection action by Carter against Stoner, and the individual guarantors. Upon information and belief, the suit is based upon a line of credit with the Plaintiff which is not limited to alleged debts for materials incorporated in the Cooks' residence, but rather on multiple projects. 2. Admitted in part and denied in part. It is admitted that the Cooks were joined as Additional Defendants. The phrase "vast majority" is denied. Substantial elements of the Carter claim, which to date is not adequately or competently detailed, appear to represent elements of the Cooks' construction which were installed before substantial payments by Cooks to their contractor, Stoner Contracting. 3. Admitted. 4. Admitted with clarification. While the parties attended mediation on November 6, 2014, and were unable to resolve their claims in full at that time, progress was made and the mediator (until certain recent actions by Carter Lumber came to light), was attempting to address follow up with the parties. 5. Denied. Mediation by statute and rule of court is confidential and is not to be the subject of allegations in regard to motions filed in Court and filed to the public docket. The allegations in Paragraph 5 are inaccurate, willfully false, objectionable and should be stricken from the record. Moreover, Carter's Motion to which this Reply is filed, arrived in the mail two days after the Court's Order. In addition, correspondence between counsel (attached) was willfully ignored by Carter in its submission to Court. 6. Denied. The averment of Paragraph 6 is an unsupported conclusion of law based upon spurious and inaccurate allegations which should be stricken from the record. 7. Admitted. 8. Admitted. 9. Admitted with clarification. Given the nature of allegations made on behalf of Carter Lumber in the Motion, it is respectfully submitted that it is appropriate for counsel to attend the Status Conference in person with the Court. In addition, addressing the withdrawal of the obdurate and vexatious statements made on behalf of Carter in its Motion can be addressed. WHEREFORE, Additional Defendants, Terry and Claudia Cook, pray Your Honorable Court to schedule an in-person Status Conference. Date: 1;),/11/P-1 MARTSON LAW OFFICES By ���`f�► �. . David A. Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Additional Defendants AT_ THOMAS, THOMAS & HAFERE.1.P Attorneys At Law David Alan Fitzsimons, Esquire Martson Deardorff, et al. 10 E High Street Carlisle, PA 17013 November 11, 2014 Street Address: 305 North Front Street, Harrisburg, PA 17101 Mailing Address: P.O. Box 999, Harrisburg, PA 17108 Phone: 717.237.7100 Fax: 717.237.7105 Joshua J. Bovender (717) 237-7153 jbovender@tthlaw.com Daniel L. Sullivan, Esquire Saidis, Sullivan & Rogers 26 West High Street Carlisle, PA 17013 RE: Carter Lumber Company v. Stoner Contracting Group, Inc. and Cooks Cumberland County C.C.P. No. 13-2125 Dear Counsel: Please allow this correspondence to memorialize the rather disappointing outcome of our mediation that was held with mediator David Lehman at McNees, Wallace & Nurick, LLC on November 6, 2014. As you are well aware, mediation was unsuccessful and, despite the direction from the Court, this case will proceed with litigation. I must be candid in admitting that I do not believe Additional Defendants Terry Cook and Claudia Cook attended the mediation in good faith. While I am certainly unable to know the content of the discussions held in the private caucuses amongst the Cooks and our mediator, it is my understanding that the Cooks did not make a single bona fide offer to contribute to the settlement of this case. Notwithstanding my disappointment, Carter Lumber intends to proceed with requesting a Status Conference with the Honorable Judge Albert H. Masland as contemplated in Judge Masland's October 11, 2014 Order. You can expect to receive service of same in the coming week. Sincerely, THOM ".._THOMAS AFER, LLP B JJB/gmc:1511907.3 Joshua --B Harrisburg Bethlehem Pittsburgh Philardelphia Wilkes-Barre Baltimore, MD Clinton, NJ nww,tthlnw.cum . , • Ni A RT5 N DEARD0 uf: Vg/iL.L. [Alms 0 TT0 (rELROY & FALLER MARTS ON LAW OFFICES 10 EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 TFL FPHONE (717) 243-3341 FAcsaBLE (717) 243-1850 INTERNET wWw.MUtsOnlaw.CoM Joshua J. Bovender, Esquire THOMAS, THOMAS & HAFER 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 E NIAR'CSON GEORGE B. FALLER JR.* JOHN B. FovaEll 111 DAVID A. FIIZSLMONS DANIEL K. DEARDORFFt CHRISTOPHER E. RICE THOMAS J. WILLIAMSSETH T. MOSEBEY Ivo V. Orro III K.' vim J. .),L\XWEII, Humirtr X. Gil.Roy AARON S. HAYNES November 13, 2014 *110ARD CERTIFIED CIVIL TRIAL SPECIALIST CERIIFIED WORKERS' COMPENSATION SPECIALIST. RE: Carter Lumber Company v. Stoner Contracting Group, LLC, Fred H. Stoner and Michael A. Stoner v. Terry and Claudia Cook Our File No. 14687.1 Dear Mr. Bovender: I have received your letter of November 11. I might add that since you state you are unable to know the content of discussions held in private caucuses amongst the Cooks and the mediator, any further commentary or judgments you have based upon speculation of what occurred or did not occur in those meetings is simply that, speculation. I am sure everybody shares in the disappointment expressed by you on behalf of the collection agency. You may indicate in your Motion for a Status Conference with Judge Masland that I concur with your request for a conference. I trust that this time you will attend in person. Very truly yours, N LAW OFFICES •,1 David A. Fitzsimons DAF/tde Daniel Sullivan, Esquire Mr. and Mrs. Terry Cook F:FILES`Clients'd 4687 Cook \ I -1687.1, jb.l.wpd [NFORMATION ' ADVICE • ADVOCACY ''t CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Response to Motion for Status Conference was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Daniel L. Sullivan, Esquire LAW OFFICES OF SAIDIS, SULLIVAN & ROGERS 26 West High Street Carlisle, PA 17013 Joshua J. Bovender, Esquire THOMAS, THOMAS & HAFER 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 MARTSON LAW OFFICES Tricia D. c enroad len East H'gh Street Carlisle, PA 17013 (717) 243-3341 Dated: /07/y// 1 CARTER LUMBER COMPANY, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. STONE CONTRACTING GROUP, LLC, : FRED E. STONER, and MICHAEL A. : STONER, DEFENDANTS V. TERRY COOK and CLAUDIA COOK, : ADDITIONAL DEFENDANTS : 13-2125 CIVIL TERM / ORDER OF COURT AND NOW, this / 7& day of December, 2014, upon consideration of Additional Defendants' Response to Plaintiff's Motion for Status Conference we DIRECT all counsel to appear in chambers for the conference scheduled at 11:30 a.m. on December 15, 2014. If anyone is unable to appear in chambers, the status conference will be rescheduled for a date convenient to all. By the Court, c) -r m C) r,, C) O -10 ry C.A.) i :i Albert H. Masland, . . Joshua J. Bovender, Esquire Matt Clayberger, Esquire P.O. Box 999 Harrisburg, PA 17108-0999 For Plaintiff / Daniel L. Sullivan, Esquire 26 West High Street Carlisle, PA 17013 For Defendants / David Alan Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 For Additional Defendants :sal opie CARTER LUMBER COMPANY, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. STONER CONTRACTING GROUP, LLC,: FRED E. STONER, and MICHAEL A. : STONER, DEFENDANTS V. TERRY COOK and CLAUDIA COOK, : ADDITIONAL DEFENDANTS : 13-2125 CIVIL TERM AND NOW, this IN RE: STATUS CONFERENCE ORDER OF COURT 1 /Cf�.‘ day of December, 2014, following a status conference attended by Joshua J. Bovender, Esquire, Daniel L. Sullivan, Esquire, and David Alan Fitzsimons, Esquire, we set forth the agreed upon schedule for this matter: 1. Without objection, Defendants, Stoner Contracting Group, LLC, Fred E. Stoner and Michael A. Stoner shall file a third party complaint against Plaintiff no later than January 15, 2015. 2. Discovery shall be completed by June 1, 2015. 3. Expert reports shall be submitted to opposing counsel by July 1, 2015. 4. Dispositive motions shall be filed by August 3, 2015. Thereafter, the parties may list this matter for trial. Pending that, and indeed at any time during the aforesaid schedule, the court will heartily entertain a motion from any party requesting a settlement conference pursuant to Rule 212.5. Although the court is not as intimately aware of all of the facts in this case as are the parties and counsel, we continue to believe, as noted in our order of August 11, 2014, that this matter is "imminently appropriate for resolution." Therefore, we encourage counsel and the parties to marshal their energies in that direction. By the Court, Xloshua J. Bovender, Esquire P.O. Box 999 Harrisburg, PA 17108-0999 For Plaintiff ,,Daniel L. Sullivan, Esquire 26 West High Street Carlisle, PA 17013 For Defendants David Alan Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 For Additional Defendants :sal rret.lEc( izp7//1/ Albert H. Masland, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CARTER LUMBER COMPANY, Plaintiff No. 13-2125 Civil Term v. STONER CONTRACTING GROUP, LLC, . FRED E. STONER and . MICHAEL A. STONER, Defendants rn •G zFri_' a= V. " • TERRY COOK and CLAUDIA COOK, 1---(-) F"-.'" Additional Defendants j�. c cv To: Carter Lumber Company - c/o Joshua J. Bovender, Esq. P. O. Box 999 Harrisburg, PA 17108-0999 NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN 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 PROCEEDWITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUECED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CARTER LUMBER COMPANY, Plaintiff v. • • • • • • STONER CONTRACTING GROUP, LLC, • FRED E. STONER and • MICHAEL A. STONER, • Defendants • v. TERRY COOK and CLAUDIA COOK, Additional Defendants • • • No. 13-2125 Civil Term THIRD PARTY COMPLAINT STONER CONTRACTING GROUP, LLC v. CARTER LUMBER COMPANY AND NOW comes Defendant, Stoner Contracting Group, LLC ("Stoner Contracting"), by its attorneys, Saidis, Sullivan & Rogers, and hereby files the following Third Party Complaint. 1. On or about December 5, 2013, Carter Lumber Company ("Carter Lumber") filed a Complaint against Stoner Contracting, Fred E. Stoner and Michael A. Stoner claiming, among other things, that Stoner Contracting was obligated to pay $60,474.53 to it for alleged supplies and materials it sold to Stoner Contracting. 2. On or about January 24, 2014, Stoner Contracting filed a Joinder Complaint against Terry and Claudia Cook alleging, on information and belief, among other things, that the overwhelming component of the amount claimed by Carter Lumber from Stoner Contracting represented the costs of supplies and materials utilized in a construction project at the Cooks' residence, and claiming $66,883.00 from the Cooks for the unpaid contract amount and cost of change orders. 3. On or about February 27, 2014, the Cooks asserted a Counterclaim against Stoner Contracting alleging numerous items of alleged improper workmanship and improper or defective materials on the construction project, and claiming damages in an amount exceeding $50,000.00. 4. By Order dated December 16, 2014, the Court, per the Honorable Judge Masland, allowed Stoner Contracting to file a third party complaint against Carter Lumber. 5. Stoner Contracting hereby incorporates by reference the averments of its Joinder Complaint against the Cooks. 6. Stoner Contracting hereby incorporates for background only the allegations set forth in the Cooks' Counterclaim against Stoner Contracting, without adoption by Stoner Contracting as its own allegations. 7. The Cooks have complained, among other things, that various aspects of the kitchen installation at their home were defective, including improper workmanship and defective or inoperable cabinets. 8. The Cooks have not yet identified a specific damage amount. attributable to this claim regarding their kitchen. 9. Various components of the kitchen installation at the Cooks' residence were provided by Carter Lumber. 2 10. Carter Lumber also installed the kitchen components in the Cook residence on an "install sale" basis as a subcontractor of Stoner Contracting. 11. Discovery and investigation may reveal that other supplies and materials provided by Carter Lumber form the basis of additional damages claimed by the Cooks against Stoner Contracting, but the specifics of any such additional damages are not currently known. 12. Stoner Contracting has denied liability to the Cooks, but nevertheless alleges that any damages sustained by the Cooks relating to the supplies and materials in their kitchen, and/or the installation of the supplies and materials in their kitchen, were proximately caused by Carter Lumber providing improper or defective products, and/or performing improper installation that was not in accordance with reasonable and appropriate skill and workmanship. 13. To the extent that discovery and further investigation reveal other damages claimed by the Cooks that relate to supplies and materials provided by Carter Lumber or work on the Cooks' project provided by Carter Lumber, then these other damages were also proximately caused by Carter Lumber providing defective supplies and materials and/or providing improper installation that was not in accordance with reasonable and appropriate skill and workmanship. 14. Should it be judicially determined that the Cooks are entitled to recover damages from Stoner Contracting based upon improper or defective products and/or improper installation of supplies and materials in their kitchen, or otherwise, then Carter Lumber is solely liable on Plaintiff's underlying causes of action or jointly and severally liable with Stoner Contracting, or liable over to Stoner Contracting for contribution and/or indemnity on the underlying causes of action pleaded by the Cooks. 3 WHEREFORE, Stoner Contracting demands judgment in its favor and against Carter Lumber in an amount to be determined, on the basis that Carter Lumber is solely liable on the underlying causes of action pleaded by the Cooks, or is jointly and severally liable with Stoner Contracting, or is liable over to Stoner Contracting for contribution and/or indemnity on the underlying causes of action pleaded by the Cooks as those causes of action and claims relate to improper or defective supplies and materials supplied by Carter Lumber and/or improper installation services performed by Carter Lumber. Date: SAIDIS, SULLIVAN & ROGERS Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717- 243-6222 - Phone 717- 243-6486 - Fax dsullivan@ssr-attorneys. corn Attorneys for Stoner Contracting Group, LLC 4 VERIFICATION I, Fred E. Stoner, Member of Stoner Contracting Group, LLC, hereby verify that I am authorized to make this Verification, and that the facts set forth in the foregoing document are true and correct to the best of my knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Fre • E. Stoner 5 VERIFICATION I, Michael Stoner, Member of Stoner Contracting Group, LLC, hereby verify that I am authorized to make this Verification, and that the facts set forth in the foregoing document are true and correct to the best of my knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Michael A. Stoner 6 CERTIFICATE OF SERVICE I hereby certify that on this ('-1 day of ,y,v.utA-C- -I , 2015, a true and correct copy of the foregoing document was served upon the parties listed below, via First Class Mail, postage prepaid, addressed as follows: David A. Fitzsimons, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Joshua J. Bovender, Esquire John F. Yaninek, Esquire Thomas, Thomas & Hafer, LLP P. O. Box 999 Harrisburg, PA 17108-0999 SAIDIS, SULLIVAN & ROGERS Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717-243-6222 - Phone 717- 243-6486 - Fax dsullivan@ssr-attorneys.com 7