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HomeMy WebLinkAbout01-4316H. EDWIN BERKHEIMER, Plaintiff VS. KEITH A. VARNER AND MONIQUE P. VARNER, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO.O/-q3t(,, ~z~c~- T"'e,.- : : Civil Action-Law : IN ASSUMPSIT TO: KEITH A. VARNER MONIQUE P. VARNER 19 Nelson Drive Carlisle, Pennsylvania 17013 You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further Notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER 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, Pennsylvania (717) 249-3166 Anthony L. DeLuca, Esquire 113 Front Street P.O. Box 358 Boiling Springs, PA 17007 H. EDWIN BERKHEIMER, Plaintiff VS. KEITH A. VARNER AND MONIQUE P. VARNER, Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. ot-v~/~, ~ '-I-'~_. : : Civil Action-Law : IN ASSUMPSIT COMPLAINT AND NOW, this/~6~ day of~r'~[y , 2001, comes the Plaintiff, H. Edwin Berkheimer, by and through his attorney, Anthony L. DeLuca, Esquire, and files the within Complaint based upon the following: 1. The Plaintiff, H. Edwin Berkheimer, is an adult individual who resides at 1314 Kuhn Road, Boiling Springs, Cumberland County, Pennsylvania. 2. The Defendant, Keith A. Vamer, is an adult individual who resides at 19 Nelson Drive, Carlisle, Dickinson Township, Cumberland County, Pennsylvania. 3. The Defendant, Monique P. Vamer, is an adult individual who resides at 19 Nelson Drive, Carlisle, Dickinson Township, Cumberland County, Pennsylvania. 4. The defendants are husband and wife. 5. The Plaintiff is a builder who constructs new homes. The Defendants were desirous of constructing a new home and entered into discussions with the Plaintiff concerning the construction of a new home by Plaintiff for them. 7. On or about March 28, 2000, the parties entered into an Agreement for the construction of a new home by the Plaintiff for Defendants at 19 Nelson Drive, Carlisle, Dickinson Township, Cumberland County, Pennsylvania for the sum of $303,900.00. A copy of said Agreement is attached hereto, marked as Exhibit "A", and incorporated herein by reference. 8. In addition to the Agreement for the construction of a new home executed by the parties on or about March 28, 2000, there were certain allowances and specifications agreed to by the parties. Copies of the Allowances and specifications are attached hereto, marked as Exhibits "B and C", and incorporated herein by reference. 9. The Plaintiff commenced work to construct said new home on or about May 15, 2000 ahd completed the construction of said new home, pursuant to the terms of the Agreement and in a good and workmanlike manner, on or about December 20, 2000 except for certain work to be completed outside on the driveway, drywall and painting on the ceiling on the porch and landscaping, which work could not be completed due to the weather. 10. The Plaintiff was willing and able to complete said work outside as soon as the weather permitted and had scheduled subcontractors to complete the outside work as stated hereinabove in Paragraph 8, which such work would have cost Defendants the sum of $3,295.00. 11. Under the terms of the Agreement, the Defendants were to pay Plaintiff the sum of $303,900.00 for the construction of the new home plus the cost of extras, $250,000.00 of which was to be paid pursuant to a draw schedule as set forth by Defendant's lender, Harris Savings Bank, now Waypoint Bank. 12. The Defendants paid Plaintiff, pursuant to the draw schedule, the sum of $250,000.00 through their Lender, Harris Savings Bank, now Waypoint Bank 13 The Defendants also paid Plaintiff the additional sum of $38,100.00, resulting in Plaintiff being paid the sum of $288,100.00 to date. COUNT I BREACH OF CONTRACT 14. Plaintiff incorporates Paragraphs 1 through 13 as though set forth at length herein. 15. The Defendants agreed to pay the Plaintiffthe sum of $303,900.00 plus the cost of any extras for the construction of their new home. 16. The Plaintiff did construct the new home according to the temps of the Agreement and did comply with the terms of the Allowances and Specifications. 17. The Defendants did request certain extras which increased the cost of the new home by the amount of $10,687.25 to $314,587.25. 18. The Defendants have paid Plaintiffthe sum of $288,100.00, leaving an outstanding balance due and owing to Plaintiff by Defendants, after deducting the cost of the remaining outside work, of $23,192.25. 19. The Defendants, Keith A. Vamer and Monique P. Vamer, each have breached the agreement entered into on March 28, 2000 by: a. Violating paragraph 5 of said Agreement in that they have failed to pay the full contract price of $303,900.00 and have failed to pay for the extras when ordered; b. Violating paragraph 9 of said Agreement in that they have failed to pay for the additional work as required by paragraph 5 of the Agreement; and c. Violating paragraph 10 of said Agreement in that they have failed to make full payment as required prior to occupancy of their new home. 20. Although demand has been made for payment, the Defendants, Keith A. Vamer and Monique P. Vamer, have failed and have willfully refused to pay the outstanding balance due and owing to Plaintiff. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter Judgment in favor of the Plaintiff and against the Defendants, Keith A. Vamer and Monique P. Varner for the sum of $23,192.25 plus interest, costs and expenses. COUNT II LrNJUST ENRICHMENT 21. Plaintiff incorporates Paragraphs 1 through 20 as though set forth at length herein 22. The Defendants have occupied the new home since on or about December 20, 2000 without paying the Plaintiff the full amount due and owing to him. 23. The Plaintiffhas incurred additional expenses for extras requested by the Defendants and installed, all of which benefit the Defendants and increase the value of their home. 24. The Defendants have been unjustly enriched by the amount of $23,192.25 which is the outstanding balance due and owing to Plaintiff by Defendants. 25. Although demand has been made for payment, the Defendants, Keith A. Vamer and Monique P. Vamer, have failed and willfully refuse to pay Plaintiff the balance due and owing to him. WHEREFORE, Plaintiffrespectfully requests that this Honorable Court enter Judgment in favor of the Plaintiff and against the Defendants, Keith A. Vamer and Monique P. Vamer for the sum of $23,192.25 plus interest, costs and expenses. Respectfully Submitted, '~thony L. DeXb~, Esquire 113 Front Street Boiling Springs, Pennsylvania 17007 (717) 258-6844 Attorney for Plaintiff VERIFICATION I hereby verify that the facts and information set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I understand that any false statements contained herein are subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. ated: vl H. Edwin Berkheimer AGREEMENT This Agreement made thcs 2~'t~'~ day or March between i:,::i.l.}~ ~.. ':: l'.I,uL-~q~? U. hereinafter called the Owner and~l. Wdwi~ celled the Contractor. Wi~;nesoeth as follows: , -1-~ 2on0 hereineFter 1. The Contractor shall erect a dwelling house For the Owner on tile Owners lot ulrich is Lot in a good workmenlike manner and shell sopply ali. necessary labor, materials and tools and all other faciliLies I~eceood~y to complete the dwelling, such dwelling to be erected and builb in all respects in accordance with the plans and speciFicabions hereto annexed and signed by time parties hereto in comF~liance with lmcal ordinaaces. ' o charges and fees end give all notices.incident to the due and lewFul prosecution of tl~e l,~orl<. ~le ml~oll obtain and Fu'r'nish 'to the Owner all certificates For electrics]., plumbing, or other work in h~s contract requiring same. He shall pay all State, County and Ciby ~ees, permits licenses, e~:c. , except real es:;aI:e transfer 3. The Conl:rac~:or wi].l complete the whole of the work her~in provided and rF~mave all surplus material, p~ant and rubbish off the premises OF, e hundred twenty days (120) after.Contractor is notified tha~ he may begin work, unless prevented by. accidents, strikes or alterations or additions ordered by Owner. The Contractor ol~a].l procure all permits and licenses, pay all 4. The Owner and bis representative shall a~ all times have access to bile work For J. nspec~ioo. 5. The Owner wibhoot invalidating time contract may order extra work or make chanties by al~ering, edding, or deducting From the work. Ail exbra work shall be paid when ordered. Any deductions From the origiF contract shall be deducted From the final payment. Ail changes' ordered shall be signed by Owner and Contractor. 6. If I;h~: F]uilder ol~all become bankrupt or make an ossignment For ~be benefib of creditors, or o~herwise become unable to carry out the work, or iP ~be Ouilder removes From the work, without the written consent of the Owne~., bbc Owner may by notice ~6 writing addressed to the Builder tl~ereupon terminate Lhis con~ract and all claim of the Builder under the same shall ~hereupon cease and if the Builder shall in any manner delay or neglec~ to Finish the said house within the time hereinbeCore provided, the Owner may by no,ice give ~s above provided require the Builder to proceed with' bbc work and upon his Failure to do so"the Owner shall have the rigi~t bd employ any other builder to continue and complete the s~id house according to l:he said plans and specifications, or any alterations or additions here~o as hereinbefore provided and shall also have the right to authomize such Builder to use any plan~, materfals, property of the Builder, upo~ Ll~e oround and ~he Ouilder mFlall in such case ForCeit and Forego all his interest whatsoever under this contract. IF the expense of completing tI~e contract shall exceed the contract price the Builder shall be liable to I:he Owner for such excess sum. 7. Th~ Ouilder ml~mll maintain such insurance a~ will protect him From claim under the Workmen's Compensetion Acts and From any other Cloims For damages For ~e].'monal i~juries, including death, which may arise From operations under ~his co~tract. Certifications of such insurance shall be filed with 'bhe OwllO~ if he so requires and shall be subject to his opproval For edequmcy of protecl:ion. The Builder will save harmlemm tho Owner From any claim whatsoever nature amising from operations under this contracl:. ~= EXHIBIT "A" - 1 - 8. The Owoer shall effect and maintein fire insurance upon the entire structure upon which the work in this contract is to be done and upon all meterials in and adjacent thereto and intended to be use'd thereon. Such insurance shall pr6tect the interest of the Builder, t~e~ Owner and any lending i~otitwtion as may be Financing the Owner in the cost of consbrscb~ions of ~the ~roperty involved~ 9. Owner s~all pay Contractor the oum oF:..303~9OO.-(Tl~re,~ ~lu~'~?e~] l'~o~ls~;~.~ ~ ~ ]~'~('~" '~) For the performance of this contract, on the Owners lo't, in addition to ony additional payments as set forth in para raph five (5). The C~ntract sun shall be paid to the Builder according bo the al:~ached sc~:edule. Deposit on ~he signiog of this Agreement 10. Owner sholl not assume occupancy of structure until ful'l payment according to Paragraph] nine (9) or thi~ agreement has been made Builder, toge~l-ler wi~h all payments For changes in work. In thet° the event the Owners desire to occupy the premises prior to such time he shall do so only with writ ben' permission of Builder.. 11. The construction or the property by tile Contractor contemplates a fully compleged dwelling houes, unless otherwise specified .(re~er paragraph #19). The plans alone do not necessarily show each item nor do the specifications alone show all items. Rather it is the combinat{on of the two together wil:h this agreement that constitutes a fully oompleted dwelling house. 12. Congractor agrees to sign a stipulatioo against liens. 13. Gwnrao tee Cootract. Oo~]tracgor hereby guarantees Owner against Faulty mater~al workme~ship for a period o~ one (1) year from date of'settlement or from date o~ Owners occupancy of house. Builder will not be responsible for the repair or, or d~mage ocassioned by sink holes, earth settling, winter oprings erosio] or lawns, wind damage=of any nature,water damage whether Prom leaking pipes or fixtures, stormo and flooding. Builder shall be respoosible to Owner for a period of one (1) year of all other Faulty maberiols or workmenship; provided, however, that. Owner submits to Builder in writing, a lis~ of the items to be repaired or replaced at Builder's expense.. It is Further understood that Builder shall make one (1) tr~p only to the premises to do all the repairs to plasteri~]g'or drywall installation. I~ Owner does the-' interior painting to his house,' Builder will not be responsible to match-up the pqint where . repairs to plaster or drywall are necessary (it is suggested that Owner save all left over paint for such use) Ir eart~ sel:tling ar sink'holes occur, Builder. agrees to deliver sufficient top soil to tile curb to fill such settlement, bu~ it is agreed that this shall 'be the extent of Builders, responsibility, or liability. After the expi'ration or one (1) year Owner agrees that Builder is released From all claims regarding the construction or the house as above. WITNESSES: SEAL _SEAL SEAL ................... - ' ...... ~-.- ~, by o~ -c,r " ~. ;m~lc~T:.:o.r T ',.'i v pc ow' ,v--t ¢ ,' ..................................................... ...... · .... ~. ~ ~.r. .UCr¢ O.D% 'r C'T" 1 1 ,- .................... P'. (.,,,u'r ~ln~', I..rr f'it',:h ¢1 ',or' 'a'int - ~. ~ 7E; ....................................... .................................................. : ...... j. ' ~ : " · L;~'au-: '-qr 4' oo?, ' ........... ,~-] .l O \..'.~ De O S: .................. , 1 o J,-'.,.L rll Ir} ,l: .';cp ;.iC ........................................................ -~ . . .............. [ ......................... : .............................................. &l O ~ 000.. - ~-' ~'J'U("~!QfI.OIi ).[ ~llr'i',' V' ~' ' ~ ~ , .......................................................... · ' ......................... /---:.-: .............. L'/.! ...... 12:. ' .... ~.~ uop., - ' ............................. , .~ ~ 000. 3. ~'i - i l'i ' .....................' - '] ...................................................................... 3 cnn. lt. ']~'" '~"~r, q' ~/ " i,~ ........................................................... ~'"" -- ........ ? · - :'* ,, i I!;) N ( ilL. d'tE ......................... .................................................... 300 (:xl'ra · ,~r~ , ," ............................. . · , ,,~,~.~.--( 7.. <;:, r',,~ t, ; ........................................... .i[../..: ........ .......................................... : ............................................. : ....... ,;i,~(3. - nr., '~ 6. llu I'd w,~o~l !" ...................... ' ..... ........................................... l, ~--~¢l-fL. 7- Ti. Lc'- ' '[ ........ 7 ............................. ; ................ ........................................................ '' o--~t 8. ',/ r/I, ~1 [nib ,', u~..l.,': ................. : ...................... : ................ ................................... ................................ '' ~o,0 Tho herein agreement, Ijl)or1 its execution by both parties, is herewith made an integral part of the More- mentioned A£roemont of SAle. b~ reference lo Agreemenl of Sale Lmtwoen .... .](.e-i:bh..:L....~?c bJO.Lq.j fl'Lie P'. Varller lbo Purchaser, and !1. !',dv'j rt P,c¥,kh,-,imer· ........................ ...................... ;...}Z. ?..."....7... :..':.. ............................................... ; ............................................ tho Seller, daled !.'la'r'('.h 28~ 2000 ................ . ..... ; ............................. : ........................... .................................................... coveNn Ill 19 Nelson ])I"ivt, C-rcer,~ 4~ ,~ , , £ e real pr°poriy Commonly kn0wn as .............. -.., ar~i.,.~e, 1,~ 1701- · Ihe undersigned Purchaser and Soller hereby agroe to tho following. ]o Include. ~' .......................................... ' ' ~ *" ~'-~*~.-.-~ ~O'OUI x., ~t,P,-Ilfl.I.C JJ:l ].U ]I1 .}/lllll(.]T',y' L Fi ] all be. throe fir. ' .................................. 3. Cal'}}(?L ill rcmL~j:u']:;p nj? }iomc., ................................................. BATED-._ .."'""2/ .~e ', /'/'-) .. .... -' i= 'i.' '""'"' '.L--: tlAl[D ................................. .... ~ ..................................................... /~rdb..ar Wib~mss ............................................................ ,~ant FORM I01. III HARRIS SAVINGS BAXK Second and Pine Streets. I/arrisbur~. PA SPECIPICA'rlONS New Construction - Res.ident~a~ Address of Property: /~ A/~/ .... Contractor: /~ Z= . ,., :? _. , ~ The contractor sh~ Provide ali necessary labor and mn~er1~ and Per~orm a]~ ~ork requlred .to compie~e ~he buIIdlng ~ithin ~he scepe o~ ~hese specifica~1o~s and accord~nc~h ~he plans a~cbcd herc~ ~nd m~de a p~r~ hereo~. The borrower, con~cac~or ~nd n11 sub-'contractors s]ml] compIy d~vlslon ordinances requlred by ~hc ~ppropr~te Joca~. s~n~e ~ndwith nIi bulldlng ~nd sub- ~ederal munlc~p~11t1~s' ~A survey o~ ~he buildlng s1~e m~y be c~quived a~ ~be lender's discce~ion. The borrower sha~1 ~iso establish ~bc local.ion o~ ~hc bu~ding ~nd ~he grnde leve~. The con~cuctor r~spons~ble ~oc Plo~Ing ~he layou~ o~ ~be proposed construction on ~he survey gXCAVATIOS: Ai~ ~op sol~ ~rom ~mmedjnte ~rea o~ the bu~id~ng and apProximately around slmll be scraped ~nd Piled on ~hc Io~ away ~rom ~he building si~c. E~cnv~on ~or ~oa~ers s]m~ ex~cnd ~o soJid undisturbed e~r~h ~ Jeast 6" below Ioc~I ~vos~ ~vc]. . BASEMENT Size _. /~ '/ -- WALLS: Material <,~,~. ,~ ~ , .... ...... MOrtar Mix 3_ Pargjng _ . // ~ .... -'~ · ..... ~" Thick Waterproofing _ /z/~_~ .... /~.~./~ / Area WeIls. Material __.~3 z ~_~_ ~ Size ~ .~ Drain Tile Size ,~ /' ............................... Connected to Column Supports Type ....... ~_t_~_{~_~ ........... Size ~ t' Top of foundation to be ~- ,, ...... ~-' .... above or below e~own of ~oad Mix _ ._j I'~---[~_~ L ............................ Thickness ~ ,~' No. Floor Dralns ...... ~__ Connected to ~ ...................... 1st Floor Joist~ Size ~'~ /~ Matecial ]st Floor Jo~sts over ~]rder or beam [Yes ~) or secured by ledger method (Yes or No) Sub F2oor 5ize --~ ....... Materia~ ~..d= ~Bow Exterioc Wall Studding Size ___,~%~%~ ~ Mate~-ial ~9/~,,~:' 4~ BASEMENT FLOORS: FRAMING CARPENTRY: EXTERIOR WALL PLATES: Size __ Material EXTERIOR WALL NO. OF PLATES: Bottom _Y ....... ............... Top MTG..#405 Rev. 7/91 EXHIBIT "C" oz!s c % '"~ azrs ~ o~nsodx3 o[2urus IgTaO~uN OZTS ao]jua dTq '~ooa dTq II PfU'I /~oI{ paouds c7 ? -/ :S&flOdSN~Ofl aNY a3&£fl9 :33IN~OD :DNI&OO~ :DNIH£V~HS &OOR :29QI~ :S~2£tt%q{ &O0~ az.rs : S.I-SIO£ 9NI7123 ;~' az .r S : ON I ~O0"ht -aris ~{OO'I~l pu~ 3u.r2p.rafl oo .~/ paouid [u.r.,o:~ui~ C/ ~ az.rs sasao/l C.:-.( / _~. TUfaa~u~ (aoo[j 2uyA.t.tuo pgo[ aoj) :S~SIO£ HOO~& Puz OZTS .Iopuatl ,Z[ aa^o 3ufuod0 azrs Japnall ,Z[ - ,9 2ufuodo azfs aopuall ,9 - ,~ 3uIuodo ozfs aopuoH ,C o~ dn 2u~uado' ,)0 :AVNHIV~S ........ ali:IS az.rs :9NIGI$ ,/ azfs :9NIII£V3HS q~IW4 ~/ / · phis >{ouf auo ,/ WINDOWS: - 3 - EXTERIOR DOORS: ATTIC VENTILATION t~ / ~.'- MASONRY ABOVE FOUNDATION: Material Manufacturer ~ ' Jamb Size .% Hardware Finish No. lllnges Per Door llardware Make Model Lock Size Hinges Louver Size '~-L~:~ ¥'.~-.~<. Type Size · Mortar Mix INTERIOR CARPENTRY: Wall Tie on Frame Fireplace c_?, Material Chimney Material Finish Flooriag Size Material '~' ' ~ ~ ~ Finish FloorinM Kitchen, Materhll C_h~--'___t~_~_yz~dh.~_C=,___.__~_~__/=~._~,___ Thickness ~ Underlay ~zF1lt~/ Mf~ No ........ Color Finish Flooring Bath, Mater~al ' ~Z',~, 7~ .... "~" -~ ..... : ..... _~ L /~ Thickness u ~d ~ ~ i ~v d ~.~;,~_ ~,~ ....... ~r¢. ~o. - ........ color ....... Stair Wo,'k No. Horses Rise / ad Riser Material Tread Material Banister or Railing Material Interior Door Style (¢<, [%-~x/td~ Size · :<';;/~-,!'~A-.~ Make llard~are '" · .... Size Thickness No. Hinges Hardware Finish Material Size Baseboard Material Window Sill Material Closet Rods Material Jamh .Material ..... f~c~t~>_d~_m.._~_...+~__,'_,~_L.___ Size /% Door Stop Material ........... _/~/./~ .................... Size .... /_-~Z-/ /--'- Size ..... ~_~_, ~ Size Closet Shelves Material _._~_~_~=~ S~ze Plumbin~ Access Panels Material _~"~oc.O Size Door ~umpers oa Floor --~J'<~_~z~ f)'~' or wall or Block Back Size Flue Liner Size Flue Liner Type Weatherstrip ..... i__'_-~./_' _~ ..... Type Balance or Operator Provided with screens (Yes or No) Provided with storm windows lYes or No) Material /3[, ~p_~_~_ ~o,d_~ So.ld~or. Ho.llow Interior Wall Surface Type ~E~..z~g=~ .... Interior Decoration Walls Thickness d/./ Doors Floors /YT,/rl/ zk < EXTERIOR PAINTING: No. Coats _ ~. Make Ceiling Finish ......... BASEMENT FINISH: KITCHEN EQUIPMENT: Wall Flnisb .... Floor Finish Number of Rooms .Type Plumbing Fixtures Area/Size - Cabinet Material Cabinet Make Counter Top Material Sink Bowl Material Equipment and Accessories Icheck) Platform Built In Oven Built In ~ ......... Size Garbage Disposal ....................... Trash Compactor Free Standing RIO Microwave A ' PLUMBING: No. of Bath Tubs Exhaust Fan No. of Shower Units ................. Dishwasher Size Make Tub/Shower Surround Material No. of Commodes Make ..... -'~ ........ '--- ....... Model '~-- .No. of Lavatories -___~.. ._ Style .......... Make Water lieater - Size ~'=~-~..t~-/_-- Make Water Supply Pipe Size ~ ~._~ No. Vent Stacks Size - Water Supply Public or Private _. Sewer - Public or Private Type of Private .. (~c,~ If private. Size of septic tank Material __ Material Material Size Fuel C ~-~. /-'c ,. No. feet draia field No. Medicine Cabinets .... -----._. Make ...... Size gallon. HEAT: CENTRAL AIR: Heat system shall be designed to heat all of the living area to a minimum temperature of 75 degrees F when exterior temperature is 0 degrees Type t: __/~_'.! ....... Make _C?c~..~. ~!~c Size Size Duct or Pipe ~ /¥~:~tu ~, Material Duct o~ Pipe~(~ - -~ Fuel _~ ~ ~_/~b/~,c Size Fuel Sto~a~e ~'~o Registe~ or Radiator Type .. Does heat plan furnish clomestic hot water? .... Yes .';~ ELECTRIC: Entrance Cable Size .... ,_~/. Fuse or Breaker Box Ma~e Size Wire to Normal Circuits Size Wire to Range and Oven Size Wire to Water Heater Amp .'z~/~/".'~ No. Circuits . Size Wire to Other Special Equipment No. Convenience Outlets .'~ CO [specify) INSULATION: EXTERIOR GR~d)ING: No. Overhead Fixtures ........ /_.~_ No. Basement Lights ........... ~.! ................ No. Outside Lights and Outlets ...... ~ ............... Will all outlets be grounded? Wil~ telephone wiria~ be concealed? __~ Exterlov wal.1 - Type~_~L ~:_.~ ......... Total R-value _~ ............. Ceillng~-:~or Roof ........ Type Total R-value Slope ~vom house ......... ~/ "in 10' (~' Top soil spread '/ "thick Area seeded - WALKS AND DRIVES: No. of evergreens in initial planting Walk thickness From /~.£c?E__~ ......... From Driveway material _. /'.~~.~_._~.C_'_ _/~_ -,, '~-~,.,~'..~Z~.~ ................. to Porch material .......... Railing ~ake~ial 'Style Patio material ..... /~[:.[(30.~. ........ Size - 6 - Deck material . :'~;c5 ©/~-) Breezeway or carport floor material Size Thickness Garage floor material __ .~.~_ .... ~_{ Thickness /~/ Type _~ ~ ~./~ List any special work or material not covered above: The specifications and attached plans are hereby submitted to llarris Savings Bank as collateral for the proposed construction mortgage. All floors are to be finished with either tile, carpeting, hardwood, inlaid vinyl or similar material. Ali walls are to be either papered or painted. ANY DEVIATION OF THE ACTUAL CONSTRUCTION. FROM THE PRQ~OSED PLANS AND SPECIFICATIONS, MUST BE SUBMITTED IN WRITING AND AUTIIORIZED BY THE BANK. Furthermore, I agree to provide a stone driveway for all construction advances. DATE (PLEASE DATE AND SIGN THE ACCOMPANYING BLUE PRINTS.) BORROWER BORROWER CONTRACTOR o 0 0 z 0 n D 0 ~ z o H. EDWIN BERKHEIMER, Plaintiff VS. KEITH A. VARNER AND MONIQUE p. VARNER, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PA : : NO. 01-4316 : : : Civil Action - Law : IN ASSUMPSIT ACCEPTANCE OF SERVICE AND NOW, this ~ day of July, 2001, service of a copy of the Complaint filed in the above-captioned matter is hereby accepted on behalf of the defendants. Attorney ~or Defendants -~ H. EDWIN BERKHEIMER, Plaintiff VS. KE1TH A. VARNER AND MONIQUE P. VARNER, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-4316 Civil Term Civil Action-Law IN ASSUMPSIT Jury Trial Demanded REPLY TO NEW MATTER AND COUNTER CLAIM AND NOW, this [~ day of September, 2001, comes the Plaintiff, H. Edwin Berkheimer, by his attorney, Anthony L. DeLuca, Esquire, and files this Reply to New Matter and Counter Claim. 26. The averments set forth in Paragraphs 1 through 25 are incorporated herein by reference as though set forth in full. 27. Denied. This is a legal conclusion to which no responsive pleading is necessary. To the extent that a responsive pleading is necessary, it is specifically denied that the Plaintiff is barred by the doctrine of estoppel. 28. Denied. This is a legal conclusion to which no responsive pleading is necessary. To the extent that a responsive pleading is necessary, it is specifically denied that the Plaintiff is barred by the doctrine of waiver. 29. Denied. This is a legal conclusion to which no responsive pleading is necessary. To the extent that a responsive pleading is necessary, it is specifically denied that the Plaintiff is barred from recovery due to accord and satisfaction. 30. Denied. It is specifically denied that the Defendants detrimentally relied upon the representations of the Plaintiff that they were under budget during the entire project. To the contrary, Plaintiffkept Defendants advised of the cost of the project as the bills were received during the course of the construction of the house. By way of further Reply, Defendants were still under budget until they ordered the kitchen cabinets. WHEREFORE, the Plaintiff prays that this Honorable Court dismiss the New Matter set forth in Defendants' Answer with New Matter together with costs of suit. 31. Denied. It is specifically denied that the Plaintiff breached the contract with the Defendants in that he failed to timely complete the home in question in a good and workman like manner. To the contrary, Plaintiff made every effort to complete the home in both a timely and workman like manner. It is further specifically denied that, as a direct and proximate result of the Plaintiff s breach of contract the Defendants incurred the following expenses, though not limited thereto: Denied. The Plaintiff gave Defendants a credit of $631.75 when this matter was discussed in February or early March, 2001. Denied. It is specifically denied that the Defendants incurred expense for the repair of deficiencies in the original construction and expense to complete construction of the home in question. To the contrary, Defendants never advised Plaintiff of any deficiencies and, if he had been advised, Plaintiff stood ready to correct any alleged deficiencies and was prepared to complete the remaining work, most of which was outside and could not be done because of the weather. Denied. After reasonable investigation, the plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment and said averment is specifically denied. Proof thereof is demanded at trial. Denied. It is specifically denied that Defendants incurred expense for labor, after the promised move-in date, in an amount in excess of 50 hours to complete painting and staining to permit carpet and flooring to be completed. To the contrary, Plaintiff gave Defendants credit for 100 hours of painting, which was in addition to the amount allocated for painting by Plaintiff's painter. Denied. It is specifically denied that Defendants were not given deductions from the contract price for numerous items that were under budget in the construction of the home. To the contrary, Plaintiff reviewed with Defendants the debits and credits for their home. 32. Denied. After reasonable investigation, the plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment and said averment is specifically denied. Proof thereof is demanded at trial. WHEREFORE, the Plaintiff prays that this Honorable Court dismiss the Counterclaim of the Defendants and enter Judgment in favor of the Plaintiff together with costs of suit. Respectfully Submitted, ~, Esquire Attorney for H. Edwin Berkheimer 113 Front Street Boiling Springs, PA 17007 (717) 258-6844 VERIFICATION I hereby verify that the facts and infomiation set forth in the foregoing Reply to New Matter and Counter Claim are tree and correct to the best of my knowledge, information, and belief. I understand that any false statements contained herein are subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. H. Edwin Berkheimer ~ i ~. william P. Douglas, Esq. Supreme Court I.D.#37926 Douglas, Douglas & Douglas 27W.~hSt. POB 261 Carlisle Pa 17013 Telephone 717-243-1790 ..........................................................H. Edwin Berkheimer " ..... ~r~'~h~--~-~-~-~'o-t~'~on-~51ed~'~f '-'~ Plaintiff VS Cumberland County, Pennsylvania No. 01 m 4316 Civil Term Keith A. Varner and Monique P. Varner Defendants Civil Action Law Jury Trial Demanded Defendants' Answer with New Matter to the Plaintiffs' Complaint and Counter Claim I through 6. Admitted. o Denied. While it is admitted that the parties entered into a written agreement, the agreement attached to the plaintiff's complaint has been altered and therefore is not a true and correct copy of the agreement entered into between the parties. Admitted in part with clarification. It is admitted that the parties entered into an agreement and Exhibits B & C are part of the agreement. However, the parties based the contract for the construction of the home on additional specifications which became the basis for and a material part of the contract. Said document entitled House Plan Specs for Keith & Monique Varner, is attached hereto and made a part hereof. Admitted in Part and Denied in Part. It is admitted that the plaintiff started construction of the house in the month of May, however, ground breaking for the construction occurred on May 11, 2001. It is denied that all work was completed in a good and workmanlike manner. It is denied that the plaintiff acted in accordance with the terms of the contract. Upon the signing of the contract the plaintiff was instructed to start the house as soon as possible. The house in question was to be completed within 120 days of March 28th, 2000. As of March 6~h, 2001 the house had yet to be completed. On or about March 6% 2001 the builder was discharged for his failure to perfoi-m in accordance with the contract. Several other items had yet to be completed and poor workmanship repaired, when plaintiff stopped working on the house in December of 2000. 10. 11. Denied. As of March 6~, 2001, the plaintiff had scheduled no work to be completed on said house. It was not until after he was discharged that any work was scheduled. The figure of $3,200.00 is false. It cost in excess of $9,000.00 to complete the home in accordance with the contract. Denied as stated. The contract speaks for itself. It is admitted that there was a draw schedule set up by the bank. 12/13.Admitted. It is admitted that the defendants paid the plaintiff a total of Two Hundred Eighty Eight Thousand One Hundred Dollars ($288,100.00) to date. Count 1 Breach of Contract 14. 15. The defendant Varner's answers to paragraphs 1 through 13 are incorporated herein and reference is made thereto. Admitted with clarification. It is admitted that $303,900.00 was the original agreed upon price. However, that was for a home that was completed in accordance with the terms of the contract, which did not occur. 16. 17. 18. 19. Denied. This is a legal conclusion to which no response is necessary. It is further denied that the plaintiff constructed a new home in accordance with the terms of the agreement. To the contrary, the plaintiff breached the agreement. Denied. It is denied that the defendants requested "extras" which increased the cost of the new home. To the contrary, the defendants where told by the plaintiff during construction, that they were at all times within budget. Denied. It is specifically denied that there is a remaining balance due and owing the plaintiff in the amount of $23,192.25. Denied. 28, 2000: The defendants did not breach the agreement dated March a) Denied. The defendants did not breach paragraph 5 of the agreement. They were repeatedly told, by the plaintiff that they were within the construction budgets and were not going over on allowances. b) Denied. The answer to 19 a) is incorporated herein and reference is made thereto. 20. c) Denied. The defendants moved into the residence out of desperation after repeated material misrepresentations to them, by the plaintiff, about the completion date and the plaintiff's breach of the March 28, 2000 agreement. Denied. The plaintiff's have paid the defendants the sum of $288,100.00. Wherefore, it is prayed that the complaint of the plaintiff, Berkheimer, be dismissed. 21. 22. 23. 24. Count 2 Unjust Enrichment The defendants' Varner answers to paragraphs 1 through 20 are incorporated herein and reference is made thereto. Admitted in part and denied in part. It is admitted that the defendants moved into the home on or about December 23, 2000, the remainder of the allegation is denied. Denied. After reasonable investigation the defendants are unable to verify the truth of the avemtent and proof thereof is demanded. Denied. The outstanding balance claimed due and owing the plaintiff is incorrect. The previous answers are incorporated herein by reference thereto. 25 Denied. The defendants have paid the plaintiff the sum of $288,100.00. Wherefore, it is prayed that the complaint of the plaintiff, Berkheimer, be dismissed. New Matter 26. The answers to paragraphs 1 through 25 are incorporated herein and reference is made thereto. 27. The plaintiff is barred from the doctrine of estoppel. 28. The plaintiff is barred by the doctrine of waiver. 29. The plaintiff is barred from recovery due to accord and satisfaction. 30. The defendants detrimentally relied upon the representations of the plaintiff that they were under budget during the entire project. Wherefore, it is prayed that the complaint of the plaintiff, Berkheimer, be dismissed. Counter Claim 31. The plaintiff breached the contract with the defendants in that he failed to timely complete the home in question in a good and workman like manner. As a direct and proximate result of the plaintiff's breach of contract the defendants incurred the following expenses, though not limited thereto: a) construction loan late fee for the builders failure to timely complete the project in the amount of 631.75; b) expense for the repair of deficiencies in the original construction and expense to complete construction of the home in question; c) rental payments, in the amount of $1420.00 for housing because the house, was unavailable to occupy as promised; d) labor, after the promised move-in date, in an amount in excess of 50 hours to complete painting and staining to permit carpet and flooring to be completed; e) deductions from the contract price for numerous items that were under budget in the construction of the home. 32. The defendants had to endure great aggravation and inconvenience due to the plaintiff's failure to perform the contract in a timely manner. Wherefore, it is prayed that judgment be entered in favor of the defendants (counterclaim plaintiffs) and against the plaintiff (counterclaim defendant) together with costs of suit. August 21, 2001 Respectfully submitted, ' - Wil~am P. DouglaS, Esq. Attorney for Keith and MoniquOVarner Affidavit I hereby swear or affirm that the foregoing is true and correct to the best of my knowledge and/or infot-a-~ation and belief. This is made subject to the penalties of 18 Pa.C.S. ~4904 relating to unswom falsification to authorities. Moniqtie Vamer August 21, 2001 House PI o Specs for Keith & Monique Varner Exterior Windows- Anderson high performance tilt sandtone windows with screen and grill Exterior Steel Doors to be Pease ever-strait or approved equal Front Door- Pine Bison Riviera style door 3068 with two matching 1468 sidelites and elliptical transom Exterior Walls- 2 x 6 construction with plywood sheathing and housewrap House to be sided in wood grained vinyl siding to be approved by owners Exposed foundation and chimney detail to be finished with L&S Stone Veneer pattern number 33033 Valley Forge Shadow Rock All decorative millwork (i.e.: gable decorations, Victorian porch brackets, etc.) to be made of Fypon or approved equal Roof shingles to be a 25-year or greater architectural profile Interior First Floor All woodwork and trim including stairway to be natural finish of pine, maple, or beech All solid interior doors to be of the style similar to Simpson- Chateau 48 or approved equal Interior French doors to be hung as pocket doors and should be styled similar to Simpson 1509- Queen Anne Flooring should be solid maple hardwood in foyer, and dining room Ceramic tile throughout kitchen, breakfast area, pantry, laundry room, and haft bath Carpet in family room, study, and formal living room as per owners' selection Wood columns in family room to be supplied by owners Tray ceilings with low voltage rope lighting in both family room and dining room Fireplace in family room should be gas unit, zero clearance or approved by owner Built in mantel and entertaimnant system to flank fireplace unit and consist of natural finish trim and matching stone veneer of exterior All kitchen cabinets to be solid maple of custom design approved by owners Countertops to be Corian or approved equal All cooking units to be gas operated Island will contain a 4-bumer/2-gfill gen-aire cooktop with electrical raised vent downdraft system or approved equal Dishwasher, microwave, and oven to be of approved manufacture and design Sta~ir rail All stair parts to be finished natural beech wood Handrail to match Coffman design # C-6536P-1 Balusters to be design # C-5602 Beech Second Floor All doors, woodwork, and trim excluding balcony stair mil are to be paint finish Interior doors to match Jeld-Wen Provincial 4-panel design Carpeting throughout second floor excluding all bathrooms All bathrooms to have ceramic file floors approved by owner Tray ceiling~ in master bedroom, bedroom two, and bedroom four as per drawing Master bedroom fireplace to be of similar size and design as unit in family room All closet doors larger than 3 foot to be double doors with ball catches Master bathroom to have approximately 60-inch Jacuzzi style whirlpool tub All other bathtub/shower units to be one piece molded fiberglass consmtction Garage To be fully insulated and finished with 5/8 exterior grade plywood throughout Plywood should have sprayed paint finish Each garage bay should have French drain and sloped floor to match Garage doors to be fiberglass- insulated design approved by owners Electrieal/Plumbing/ltVAC Electrical 400 amp service Heating/air conditioning to be by approved electric heat pump (dual zone unit) with backup propane system Kitchen floor to have radiant heat system Lot approved for standard conventional septic House to be wired for security system supplied by owners House to have central vacuum throughout All rooms will have recessed lighting per owners' direction Natural gas water heater II Ilfllllllll~/]llllll[ll]ll I IL II [11 III I I sw~noo ~ s~hono'o"swonoo He RULE 1312-1. Edwin Berkheimer, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4316 CIVIL ~2001 VS. : : ~eith A. Varner and : Monique P- varner, : Defendants : : ThePetition ~rAppointmentofArbi~morsshall~ subst~tiallyin the~llowingfonn: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE ]UDGES OF SAID COURT: Anthony L. DeLuca, Esqui,r~unsel for the plaintiff/~lfilqn the above action (or actions), respectfully represents that: 1. The above-captioned action~s ~ at issue. 2. Theclaimoftheplalntiffintheactionis$2.~:192.25Dlus interest and costs The counterclaim of the defendant in the action is_ " The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: ..- WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, ) .tO ~.~ c-~.~ ORDER OF COURT ANDNOW, d~z~t- alT/ ,10:200.~inconsiderationofthe ,-~ foregoing p~ , l~y ~- Es-,~ appointed ~bit~ors in ~ above captioned action (or Esq.,~d~~ · .' actions) ~ray~ ~r. OATH In The Court of Co.on Pleas of C,..herl~and COunty, Pennsylvania We do sol.~nly swear (or affirm) that we will support, obey and defend the Cons=ltution of the United States and the Cons=i~u=~on of this~ We, :he undersigned arbitracors, having been duly appointed and sworn (or affirmed), mmke the folio%ring award: (Note: If d~m-ges for delay are awarded, They shall be separately seated. ) applicable. ) ,. Arbitrator, Date of Award: ~ ;o/ 7.-00 ~-- m=s. (Ins~ NOTIC~ OF ENTRY OF AWARD name if Now, the/d)~/~day of dock~t aw~ard was entered upon the par~les or their attorneys. Arbitrators' compensation to be paid upon appeal: , 4~ at//._/~, ~., ~he above amd notice thereof given by mail to The - ~Fo~iij,fi.o =ar7 Deputy agpeals from %~ awed of the board of arbitrators ente~d ~m _ ~ , ~~~' ~ a Jury trial Is ts de~'ded ~ ' (Ghetto: de~ded, otherwise J~ trtal ts waived.) I ~b? certif? t~t ~ ' (1) t~ c°~ensati°n of the arbitrators ~ been oaid or --cat~ on l~s %een ~de for ?e~i'°n to proceed in fo~ pzuperiZ. [Strike Out the ia~-' ..... At t or~.ey f~-APpell~ ~opell ' ~ ' r ju~r ~rial on appeal. ~he de~-r}r arbitration is go~rned (b) No affldavt% or vertficatt°n tqulred' In The Court of Common Pleas of C,rmherl~and County, Pennsyivania OATH We do sol--rely swear (or affirm) ~hat we will support, obey and defend the Constitution of the United States and the Cons=i~u=~o~ of this Co~non- wealth ~-_d that we will discharge the.duties~, ~ic~ ~t~. airman We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), ~ke =he following award: (Note: If dm,ages for delay are awarded, they shall be separately stated.) applicable.) Date of Hearing: Date of Award: · Arbitrator, ! Arbitrators' com~.eusation to be paid upon appeal: NOTICE OF ENTRY OF AWARD /~ , 4~ at/.//~A, ~i., the above Now, of award was entered upon the doc._, and notice thereof given by mail co the par~ies or their attorneys. ZT T~ CC~fRT OF ~C~[O[T PT,EAS ,E.~_mERIZ~'-~Clq~f. PE~~TSYLVA~W--~- NOTICE OF AFFffZL ?ROM A;~ARD OF BCA~ OF ~ZBIT~.TORS TO TY~ PROTHONCTARY: Notice is Eiven tb~t ~~_~___ appeals from tb~ award o~ the board of arbitrators entered in this case on y trial is de~.ded ~ · (Cheekk box !f a J~y trial is deeded. Othe~ise J~Y trial Is waived. ) I ~by certify tk~t (1) t~ com~ensatlon of the arbitrators has been paid, or (2) application ~s been made for permission to proceed in foz.:m pauperls. (Strike Out the inapplicable clause. ) Aope!l~t or Attorney f~ Appell~t NC~: ~he de~u~ for ju~ trial on aooeal from compulsory,arbitration is ~o~rned by ~le -1007.1 (b). (b) No afFida~it or ,zerificatlon is ~ire~. In The Court of Common Pleas of C,~herland County, Pennsylvania 01': OATH We do solemnly swear (or affirm) chat we will support, obey and defend the Comstitutiom of the United States and the Constitu:~om of this Common- wealth a~d that will d'ischarge the dutieS~l' ~~Y' AWARD applicable.) Date of Hearing: ~ Date of Award: ~ ~o/ We, the undersized arbitrators, having been duly appointed and sworn (or affirmed), mmke the follo~ng, award: (Note: If d~mmg,eS for delay are awarded, they shall be separately stated.) ~o O~ di~ts. (Inse~ NOTICE OF ENTRY OF AWAiAD ~o~, che/O"~daY of f~ a%~ard was entered upon the docket and parties or their attorneys. Arbitrators' co~.ez~satto~ to be paid upon appeal: , 4~ at//.'2~, .,~gr'":'l;"..,' the above motice thereof givem by mazm to the -- ~_~o~Wno tar~ Deputy William P. Douglas, Esq. Supreme Court I.D. #37926 Douglas, Douglas & Douglas 27 W. High St. POB 261 Carlisle Pa 17013 Telephone 717-24~-1790 H. Edwin Berkheimer vs Plaintiff Keith A. Varner and Monique P. i Varner Cumberland County, Pennsylvania No. 01 -- 4316 Civil Term Civil Action Law L ............ Defendants Jury Trial Demanded Request for Admissions To: H. Edward Berkheimer and Anthony DeLuca, Esq., his counsel Defendants, Keith A. Varner and Monlque P. Varner, hereby request, pursuant to ?a.R.C.P. 4014, that plaintiff admit the truth of each of the following matters within thirty (30) days of service hereof. You are advised that the requested matters shall be conclusively estabhshed, and no further proof shall be required thereon, if you fail to respond within the requisite time period. Pursuant to Pa.R.C.P. 4014(b), when good faith requires that you qualify an answer or deny only part of the matter of which an admission is requested, you are required to specify so much of it as is true and qualify or deny the remainder. You are further advised that if you fail to admit the genuineness of any document or the truth of any matter as requested herein, and if plaintiff thereafter proves the genuineness of the document or the truth of the matter, you may be required to pay to plaintiff its reasonable expenses incurred in making that proof, including reasonable attorneys' fees, as provided by Pa.R.C.P. 4019(d). Requests The contract to build a home was entered into on March 28, 2000 and the plaintiff was given the immediate go ahead to begin construction. o The home was to be completed in 120 days in accordance with paragraph 3 of the contract. 3. As of March 6~, 2001 the house was not yet completed. 4. The contract in question was written by the builder. Paragraph 5 of the contract requires that all change orders must be signed by the owner and the builder. No change orders were signed by the owner and the builder pursuant to paragraph 5 of the contract. o In the copy of the contract attached to the plaintiff's complaint, Exhibit B to the contract contained a section titled allowances and in paragraph 2 of said section the contract has been altered by the builder from that which was originally signed by the parties. Specifically, the plaintiff added a comma between the words Kitchen and appliances. The aforesaid altered paragraph originally made an allowance of $15,000.00 for kitchen appliances, vanities and tops. 9. The builder paid nothing toward the kitchen appliances. 10. Paragraph 6 of the contract required that the builder could not remove from the work without the written consent of the owner. The builder removed from the work without the written consent of the owner. 11. The builder delayed and neglected to finish the house within the time specified in the contract. 12. Paragraph 6 of the contract provides that the builder shall forfeit and forego all his interest whatsoever under the contract in the event the house is not finished in accordance with the contract. 13. After the plaintiff stopped work on the plaintiff's house, the builder stated to the defendants that $9,866.00 was a fair and accurate assessment of the expense necessary to complete the house. 14. Any and all delays for the completion of the house were not the fault of the plaintiff. July ll, 2002 William P. Do~gla~,'~Esq. Douglas, Douglas & DoUglas 27 W. High St. POB 261 Carlisle, PA 17013-0261 717-243-1790 ~ ~ o~ PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TOT HE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( X ) for JURY trial at the next term of civil court. ( ) for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) He EDWIN BERKHEIMER, ( Plaintiff k~ITH A. VARNER AND MONIQUE P. VARNER, ;. 2e fend~.~_s No. 431 6 Indicate the attorney who will try case Anthony L. DeLuca, Esquire (check one) ) Civil Action - Law X) Appeal from .Arbitration ) (other) The trial list will be called o~/d/~/~ Trials comrence on /~gf), g/..F~,~ (Briefs are due 5 days bezore~----~p~triais. ) iThe p~mr~y listing hkis case for trial shall provide'forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) Civil Term ~9( 2001 for the party who files this praeci~e: Indicate trial counsel for other parties if known: William Douglas, Esquire This case is ready for trial. S i gned: L. De .uca, Print Name: ............. H. Edwin Berkheimer V K¢ith A. Vamcr and Monique P. Vamer : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : : : : : NO. 01-4316 CIVIL TERM : ORDER OF COURT AND NOW, October 8, 2002, the above-captioned matter is continued by agreement of counsel, at the efendant s request. Counsel is directed to relist the case when ready. d ' Anthony L. DeLuca, Esquire For the Plaintiff William Douglas, Esquire For the Defendant Court Administrator :Id By the Court, %, PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and sutmitted in duplicate) TO THE PNOTHONOTARY OF ~ COUNTY ( Check one) Please list the following case.. ( X ) for JURY trial at the next term of civil court. ( ) for trial without a jury. CAPTION OF CASE (entire caption must !be stated in full) ( ) (x) ( ) H. EDWIN BERKHEIMER, i(Plaintiff) vs. k~EITH A. VARNER AND MONIQUE P. VARNER, ( Defendant~ VS. (check one) Civil Action - Law Appeal fro~Arbitrati¢ (other) The trial list will be called on~_~ Trials core, hence on X~n3u ~,~y /~ ~ Pretrials will be held on ~e~-~/~2. (Briefs are due 5 days before pretrial~ (The party listing this case for trial provide forthwith a copy of the praeci~ all counsel, pursuant to local Rule 21~ No. 4~1 ~ Indicate the attorney who will try case Anthony L. DeLuc~, Esquire Indicate trial ~ounsel for other parties if known.. Civil Term ~ 2001 for the party who files this praeci~ William Douglas, Esqu This case is r~dy for trial. shall~ eto ~ [re Print Name.. Anthony L. DeLuca, Es~ aire Date.. ~L~. ,~/~or%-~~ Attorney for.. Plaintiff 9 Hoffer H. EDWIN BERKHEIMER, : Plaintiff/ : Counterclaim Defendant: V : KEITH A. VARNER and MONIQUE P. VARNER, Defendant/ Counterclaim Plaintiffs: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4316 CIVIL TERM : CIVIL ACTION - LAW : : JURY TRIAL DEMANDED IN RE: PRETRIAL CONFERENCE A pretrial conference was held before the Honorable George E. Hoffer, President Judge, on Wednesday, December 17, DeLuca, 2003. In this construction contract case, Anthony Esquire, represents the builder plaintiff Berkheimer, and William P. Douglas, Esquire, represents the defendant home owner. The parties entered into a written agreement whereby plaintiff would build a home for defendants. Plaintiff builder claims that he has ~.ot been paid some $23,000.00 under the contract. Defendants have filed a counterclaim alleging that they have bad to pay some $9,000.00 to complete work that they claim has already been paid for to plaintiff. This is a non-jury trial by the stipulation 01-4316 Civil Term In Re: Pretrial Conference Page 2 of the parties estimated to take one day to try, trial judge assigned to the case will set a date to both sides. and the convenient Each side is directed to furnish to the court a complete set of Findings of Fact ancl Conclusions of Law dealing with their case-in-chief and on counterclaims, and this shall be filed no later than thizty days before the trial date to be set by the trial judge. Counsel shall respond with answers to the opposite counsel's presentations no later than seven days before trial date. By the Court, Anthony L. DeLuca, Esquire For the Plaintiff William P. Douglas, Esquire For the Defendants Court Administrator Prothonotary/ :mtf H. EDWIN BERKHEIMER, Plaintiff/Counterclaim Defendant VS. KEITH A. VARNER and MONIQUE P. VARNER, Defendant/Counterclaim Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4316 CIVIL CIVIL ACTION - LAW IN RE: NONJURY TRIAL ORDER AND NOW, this 1 ~ t- day of January, 2004, nonjury trial in the above captioned matter is set for Friday, April 16, 2004, at 9:30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, v/Anthony DeLuca, Esquire For the Plaintiff/Counterclaim Defendant ,/~Villiam Douglas, Esquire For the Defendant/Counterclaim Plaintiff Court Administrator :rim Kevi~.4.. }tess, J. / ',% H. EDWIN BERKHEIMER, Plaintiff/Counterclaim Defendant VS. KEITH A. VARNER and MONIQUE P. VARNER, Defendant/Counterclaim Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4316 CIVIL CIVIL ACTION - LAW IN RE: NONJURY TRIAL BEFORE HESS, J. ORDER AND NOW, this //"~ day of August, 2004, on the plaintiffs claim against the defendants, we find in favor of the defendants. On the defendants' counterclaim against the plaintiff, we find in favor of the plaintiff. BY THE COURT, /~'nthony DeLuca, Esquire For the Plaintiff/Counterclaim Defendant ./~qilliam Douglas, Esquire For the Defendant/Counterclaim Plaintiff Court Administrator :rlm HesI, J. H. EDWIN BERKHEIMER, Plaintiff/Counterclaim Defendant VS. KEITH A. VARNER and MONIQUE P. VARNER, De fendant/Countemlaim Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4316 CIVIL CIVIL ACTION - LAW 1N RE: NONJURY TRIAl:. BEFORE HESS, J. OPINION AND ORDER This case was initially brought by the plaintiff, a building contractor, for money which he asserts is due and owing as a result of his construction ora home for the defendants. The defendants have counterclaimed, asserting that the plaintiff builder owes them money. Both sides, in carefully prepared exhibits, thoroughly document the irrefragability of their positions. We believe, however, that the right of either party to a recoveE~ is far from clear. The parties entered into a contract on March 28, 2000, for the construction ora home in Dickinson Township for the sum of $303,900. Less than a month later, the parties entered into a written addendum, changing the contract amount to $293,900 and making changes in two of the allowances, for well and septic and the kitchen. These allowmaces were reduced by a total of $10,000 to align with the new contract price. The contract (in both versions) provided that the "whole of the work" would be completed within 120 days after construction commenced. Construction commenced in May of 2000. By Christmas of that year, the work had still not been completed. The plaintiff explains the delay by pointing to problems with the weather and certaint problems in the blueprints. This 01-4316 CIVIL we can accept. What we find a bit more difficult to swallow ils his argument that the 120 days does not include weekends and holidays and is in reality a period of at least twenty-four weeks.~ When Mr. B erkheimer was ordered off the job, there remained some work which could not be completed until the return of wama weather. This included coating the driveway and some painting and lawn seeding. According to the plaintiff, the cost of completing this work should have been approximately $3,295. According to the defendants, the same work cost them $9,988.18. At the heart of Mr. Berkheimer's case is his assertion that certain extras requested by the defendants exceeded the credits to which they are entitled. Using the purchase price of $293,900 as an example, he contends that the extras totaled $32,277.25 whereas the credits totaled $11,590 for a difference of $20,687.25. To this sum, the plaintiffadds the amount that he is still owed on the contract price and subtracts the amount which he believes 'was necessary to finish the house after he left the job. In the end, he contends that he is owed a total of $23,193.25. The defendants dispute the amount of extras. The defendants agree that they exceeded allowances for well and septic, kitchen and lighting. Nonetheless, after deducting credits to which they are entitled including damages for the delay in the construction, they contend that they are owed the sum of $2,626.18. We agree specifically with one of the defendants' assertions, namely, that with respect to the kitchen allowance. The plaintiff contends this allowance was exceeded by $16,905. We are satisfied that this allowance was actually exceeded by $9,465. The amount by which the kitchen period of approximately 170 days if you add a couple of holidays. 2 01~4316 CIVIL allowance was exceeded is particularly important in light of Mr. Berkheimer's testimony which appears on pages 26 and 27 of the transcript: Q. Now, up to the point of ordering the [kitchen] cabinets, were the Vamers within the contract price? A. Yes. With their credits that they received and the extras that they had, as a matter of :[act, at the end of the job, other than the kitchen allowance, I would have owed them $1,300. It is, perhaps, worthy of note that the mount by which the kitchen allowance was exceeded roughly equates to the defendants' claim for amounts necessary to finish their home. The problem of what is owed to whom is made especially difficult in this case for two reasons. First, the Vamers were not made aware of the considerable amount by which their extras allegedly exceeded their credits until shortly before Mt'. Berkheimer ceased work on the home. Second, the parties did not abide by one of the paragraphs in their agreement which went a long way toward avoiding misunderstandings. That paragraph reads as follows: 5. The Owner without invalidating the contract may order extra work or make changes by altering, adding, or deducting from the work. All extra work shall be paid when ordered. Any deductions from the original contract shall be deducted from the final payment. All changes ordered shall be signed by Owner and Contractor. To the extent that there were any changes ordered by the Vamers, none of them were ever reduced to writing. The role of a fact finder, including a judge sitting without a jury, is to consider all of the evidence, "reconcile contradictions and discrepancies in testi~nony, if possible, dismiss what is incredible, and, from all that is presented, assemble a logical, continuous account which rings 3 01-4316 CIVIL with verisimilitude...,,2 Where contradictions in the testimony cannot be reconciled, then the party bearing the burden of proof on a particular issue will fail in sustaining that burden. In this case, each party makes a claim as to which there are equally plausible defenses. In the end, the evidence establishes only one thing by a preponderance; the plaintiff was paid slightly less than the full contract price for a house which he did not complete. Beyond that, neither party has advanced credible evidence as to what they are owed. ORDER day of August, 2004, on the plaintiff's claim against the AND NOW, this defendants, we find in favor of the defendants. On the defendants' counterclaim against the plaintiff, we find in favor of the plaintiff. Anthony DeLuca, Esquire For the Plaintiff/Counterclaim Defendant BY THE COURT, VA. Hess, J. William Douglas, Esquire For the Defendant/Counterclaim Plaintiff Court Administrator :rlm 2 See Com. v. Lambert, 765 A.2d 306, 362 (Pa. Super. 2000). While this is a criminal case, the duty to weigh the evidence in the manner described applies equally, we believe, to civil cases. H. Edwin Berkheimer Keith A. and Honique P. Varner IN THE SUPERIOR COURT OF PENNSYLVANIA (C.P. Curnberland County No. 01-4:316) No. 1451 MDA 2004 Filed: October 1~, ,2004 ORDER Appellees, defendants below, have filed a motion to dismiss the above-captioned appeal filed by plaintiff below 'from the August 12, 2004 nonjury verdict. Pa.R.C.P. 227.1(c)(2) states: "Post-trial rnotions shall be filed within ten days after notice of nonsuit or the filing of the decision or adjudication in the case of a trial without jury or equity trial." Pa.R.A.P. 302(a) states: "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.' See also Chalke¥ v. Roush, 805 A.2d 491 (Pa. 2002) (parties are required to file post-trial motions following a trial in law or equity to preserve issues for appeal); Lane Enterprises~ /'nc. v. L.B. Foster Co., 710 A.2d 54 (Pa. 1998) (Pa.R.C.P. 227.1 requires parties to file post-triaL motions to preserve issues for appeal; if an issue has not been raised in a post-trial motion, it is waived for appeal purposes). Verdicts in nonjury trials and orders denying post-trial motions are interlocutory and not appealable until final judgment is entered on the docket. See Turney IVledia Fuel., /'nc. v. Toll Brothers~ /'nc., 725 A.2d 836 (Pa. Super. 1999). See also Pa,R,A,P, 301. Accordingly, the motion to dismiss the appeal at No. 1451 MDA 2004 is GRANTED. Per Curiam TRUE COPY FROM RECORD Atte~tt: OCT 1 4 2004 Deputy Prothonotary Sup~dor Court of PA - Middle District No.: 1451 MDA 2004 Carbon Copy Recipient List Addressed To: Carbon Copied: Anthony L. DeLuca, Esq. 113 Front Street PO Box 358 Boiling Springs, PA 17007 Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 William P. Douglas, Esq. Duncan, Hartman & Douglas, P.C. 27 W High Street PO Box 261 Carlisle, PA 17013 The Honorable Kevin A. Hess Court of Common Pleas of Cumberland County Cumberland County Courthouse, One Courthouse Sq Carlisle, PA 17013 1013 -I0/99 10/1/99