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HomeMy WebLinkAbout13-4207 Date: 6/4/2013 Lycoming County Prothonotary User: PROTHYA1 Time: 01:59 PM ROA Report r Page 1 of 1 Case: CV- 2013- 000452- 13 q{ Q � �j Lit L Current Judge: [none] I 1111 Robert S Berkheiser, et al vs. Pa Basement Waterproofing Inc Civil Date Judge 2/21/2013 Complaint In A Civil Action Filed. Robert A. Seiferth No Judge 3/11/2013 Sheriffs Return Filed. No Judge 3/21/2013 Preliminary Objections Filed. N. Randall Sees No Judge 4/1/2013 Order Directing Hearing Filed. Judge Dudley N. Anderson No Judge Notice Under Prcp 236 Issued. Suzanne M. Fedele Prothy No Judge 5/30/2013 Order Re Preliminary Objections filed. Dudley N Anderson Rule 236 Notice filed by Suzanne M. Fedele, Prothy No Judge �� c -<> C� c r l 0 I iCW4 S - P#r 02 7-P CERTIFIED FROM THE RECORD Data JUN 4 - 2013 PROTHONOTtArty & CLERK OF COURTS MD _n C r ' m M iv z — i Supreme Count of Pennsylvania ' «�' �' ' o 0 Court ., of COn1ffion Pleas For Prothonotary Use Only: CD I C1vil Cover Sheet , k-o rµ Docket No: � W c M LYCOMOING 1�3 00452 The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S El Complaint 0 Writ of Summons El Petition Transfer from Another Jurisdiction Declaration of Taking E Lead Plaintiff s Name: Lead Defendant's Name: C ROBERTS. BERKHEISER PA. BASEMENT WATERPROOFING, INC. T Dollar Amount Requested: Qwithin arbitration limits I Are money damages requested? 0 Yes El No (check one) E]outside arbitration limits 0 N Is this a Class Action Suit? 0 Yes E No Is this an MDJAppeal? [ Yes E No A Name of Plaintiff /Appellant's Attorney: ROBERT A. SEIFERTH, ESQUIRE 0 Check here if you have no attorney (are a Self- Represented {Pro Se] Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS El Intentional El Buyer Plaintiff Administrative Agencies M Malicious Prosecution 0 Debt Collection: Credit Card Board of Assessment E] Motor Vehicle E] Debt Collection: Other E] Board of Elections Nuisance l] Dept. of Transportation Premises Liability 1] Statutory Appeal: Other S 0 Product Liability (does not include mass tort) Q Employment Dispute: E Discrimination Slander/Libel /Defamation C X Other: Employment Dispute: Other l] Zoning Board PROPERTY DAMAGE 0 Other: T I Other: O : MASS TORT E] Asbestos N f7l Tobacco Toxic Tort - DES Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS E] Toxic Waste El Ejectment Common Law /Statutory Arbitration Other: 0 Eminent Domain/Condemnation El Declaratory Judgment B 1] Ground Rent Mandamus El Landlord/Tenant Dispute E] Non - Domestic Relations Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY Q Mortgage Foreclosure: Commercial E3 Quo Warranto E] Dental E] Partition 13 Replevin 1] Legal Quiet Title El Other: E] Medical Other: Q Other Professional: Updated 1/1/2011 ROBERT S. and JUDY A. : IN THE COURT OF COMMON PLEAS OF BERKHEISER, : LYCOMING COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW VS. NO.: PA BASEMENT WATERPROOFING,''+ INC., r� °� Defendant na 'C3 _ e rn NOTICE M-4 -n 'Q o rn TO: PA Basement Waterproofing, Inc. c R° 1525 Cedar Clift Drive, Suite 101 Camp Hill, PA 17011 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, a 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 will 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. IF YOU DO NOT HAVE A LAWYER CONTACT: Pennsylvania Bar Association Lawyer Referral Service 100 South Street P.O. Box 186 Harrisburg, PA 17108 -0186 Telephone (800) 692 -7375 IF YOU CANNOT AFFORD A LAWYER, YOU MAY BE ELIGIBLE FOR LEGAL AID THROUGH: Legal Services Office 329 Market Street Williamsport, PA 17701 Telephone (570) 323 -8741 MITCHELL GALLAGHER P.C. - A t% 4-C NMMM L A 1 11 4 � Robert A. Seiferth VID #: 20481 10 West Third Street Williamsport, PA 17701 (570) 323 -8404 0� (570) 323 -8585 Facsimile 'l\ ROBERT S. and JUDY A. : IN THE COURT OF COMMON PLEAS OF BERKHEISER, : LYCOMING COUNTY, PENNSYLVANIA Plaintiffs ' CIVIL ACTION - LAW VS. to NO.! c-s-Oc n PA BASEMENT WATERPROOFING, t3 � - �i INC., %?'rn N o r - Defendant CI rn COMPLAINT w - rn 1. The Plaintiffs are Robert S. and Judy A. Berkheiser who reside at 1401 Elliott Street, Williamsport, PA 17701 in Lycoming County. 2. Defendant, PA Basement Waterproofing, Inc. is a corporate entity with a principal place of business at 1525 Cedar Clift Drive, Suite 101, Camp Hill, PA 17011. 3. On June 18, 2012 Plaintiffs contracted with PA Basement Waterproofing, Inc. for materials, labor, and equipment to install subgrade /sub -floor water redirectional equipment pursuant to a service warranty applicable to all four walls, perimeter of floor and total middle floor area for a total cash price of $9,900.00. A copy of the Service Agreement is attached hereto as Exhibit A. A copy of the Service Warranty is att ached hereto as Exhibit B. 4. After the work of PA Basement Waterproofing in Plaintiffs' basement was completed mold developed which, for health and other reasons, required remediation. 5. Mold was not present in the Plaintiffs' basement previously. 6. The mold developed although Plaintiffs used a dehumidifier which ran constantly. 7. In addition, sump pumps installed by PA Basement Waterproofing, Inc. continuously dumped water into the side yard in close proximity to the basement wall which reentered the basement. .3 oo4.52 8. PA Basement Waterproofing was notified by Plaintiffs of the mold and other problems. 9. A PA Basement Waterproofing representative conducted an inspection on September 19, 2012 resulting in a proposal for remedial work at an additional cost of $7,582.00 as confirmed by an estimate dated October 1, 2012. A copy of the PA Basement Waterproofing, Inc. Estimate for remedial work is attached hereto as Exhibit C. 10. Prior to incurring additional costs for remediation work by the same contractor who caused the need for remediation the Plaintiffs sought a second opinion. 11. On September 28, 2012 Amerispec conducted an inspection which confirmed the existence of harmful mold, specifically, numerous Penicillium/Aspergillus group spores in the basement and to a lesser extent, on the first floor. A copy of the confidential inspection report of Amerispec with attachments is attached hereto as Exhibit D. 12. The mold information section of the Amerispec report stated: `B -dry system installed in basement is not sealed at the top of the drainage system and this is allowing moisture to enter basement area to create the mold situation "; Recommended for Correction: "seal top of drainage system so moisture will not enter basement area "; and Recommended for Mold Remediation: "recommend contacting a qualified Mold Remediation Company to perform a professional remediation". See Exhibit D. 13. As a result of the Amerispec report, the Plaintiffs contacted Craig E. Hoover, a reputable local contractor, who confirmed the cause of the moisture problem and closed the top edge of the plastic "waffle" installed along the foundation by PA Basement Waterproofing, Inc. and extended the sump pump discharge pipes to the street in order to eliminate the swampy condition whereby water was reentering the basement. See Statement of Craig E. Hoover, i r�3 004 -5 2 Contractor, Inc. dated October 8, 2012 attached hereto and marked Exhibit E. 14. After the work of contractor Hoover was completed Rainbow Carpet Cleaning, a qualified mold remediation company, performed mold remediation. See Statement of Rainbow Carpet Cleaning dated October 10, 2012 attached hereto and marked Exhibit F. 15. Since the time that contractor Hoover and Rainbow Carpet Cleaning did their work in the basement there has not been a problem with mold and the sump pumps and dehumidifier run less frequently. 16. As set forth via Exhibits D, E and F Plaintiffs incurred the following out -of- pocket expenses for remedial work which PA Basement Waterproofing, Inc. made necessary: Amerispec Inspection $ 370.00 Craig E. Hoover - remedial work $2,430.79 Rainbow Carpet Cleaning - mold elimination $1,311.75 TOTAL: $4,112.54 17. Plaintiffs presented a claim to PA Waterproofing, Inc. for reimbursement for the cost of the remedial work which was rejected via correspondence of its counsel as outside the scope of its agreement with Plaintiffs and the service warranty given. COUNTI (Negligence) 18. Paragraphs 1 - 17 are incorporated herein by reference. 19. The development of mold in Plaintiffs' basement was caused by the negligence of PA Basement Waterproofing, Inc. as follows: (a) Failing to seal the top of the plastic "waffle" installed along the foundation; (b) Failing to extend the sump pump discharge pipes a sufficient distance away from the basement wall; (c) Failing to design a waterproofing system that would not promote the development of mold in a basement where there was none previously; (d) Performing its waterproofing work in a careless and haphazard manner; and, (e) Failing to warn the Plaintiffs of the risk of development of mold as a result of its work in their basement. 20. As a result of the negligence of PA Waterproofing, Inc. Plaintiffs have incurred the following damages: (a) $4,112.54 for mold inspection and recommended remedial work; (b) Costs of additional electricity due to the sump pumps and dehumidifier running constantly prior to remediation; (c) Aggravation of Mr. Berkheiser's pre- existing bronchitis. WHEREFORE, Plaintiffs, Robert S. and Judy A. Berkheiser, request judgment against Defendant, PA Basement Waterproofing, Inc. in an amount not exceeding $50,000. COUNT II (Unfair Trade Practices and Consumer Protection Law) 21. Paragraphs 1 - 20 are incorporated herein by reference. 22. The work of PA Basement Waterproofing, Inc. was of a nature or quality inferior to or below the standard agreed to in writing. 23. PA Basement Waterproofing, Inc. failed to comply with the terms of its service warranty when notified of the existence of anew problem. 24. Instead PA Basement Waterproofing, Inc. made a proposal for additional work at substantial expense which was not directed to the cause of the mold problem and disclaimed responsibility under the service warranty. 25. PA Basement Waterproofing, Inc. engaged in unfair or deceptive acts or practices as defined by the Unfair Trade Practices & Consumer Protection Law at 73 P.S. § 201- 2(4)(xiv), (xv), (xvi), and (xxi) as set forth herein. 26. The mold and related problems created by the work of PA Basement Waterproofing, Inc. have been eliminated as a result of work costing Plaintiffs $4,112.54 thereby mitigating damages in relation to the PA Basement Waterproofing, Inc. proposal of $7,582.00 which would not have been effective. WHEREFORE, Plaintiffs, Robert and Judy A. Berkheiser, request judgment against Defendant PA Waterproofing, Inc. in the amount of $4,112.54 and treble damages, costs and attorney's fees pursuant to 73 P.S. § 201- 92(a). MITCHELL GALLAGHER P.C. J4 A Robert A. Sei erth 1 #: 20481 10 West Third Street Williamsport, PA 17701 (570) 323 -8404 (570) 323 -8585 Facsimile rseiferthgmitchell g_allagher. com a VERIFICATIO ` o+Q 4 5 2 I hereby affirm that the following facts are correct: I, Judy A. Berkheiser, am authorized to enter into this Verification in the foregoing action on my own behalf. The foregoing Complaint is based upon information which has been furnished to counsel and information which has been gathered by counsel in the preparation of this lawsuit. The language of the foregoing document is that of counsel and not of me. I have read the foregoing document and to the extent that the same is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the foregoing document are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities. Date J dy A. gerkheiser VERIFICATION ; e� 0 4 2 I hereby affirm that the following facts are correct: I, Robert S. Berkheiser, am authorized to enter into this Verification in the foregoing action on my own behalf. The foregoing Complaint is based upon information which has been furnished to counsel and information which has been gathered by counsel in the preparation of this lawsuit. The language of the foregoing document is that of counsel and not of me. I have read the foregoing document and to the extent that the same is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the foregoing document are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unworn falsification to authorities. � � 3 N i p\ Dat Robert S .\Berkheiser PALICENSE- PA001027 AGREEMENT_a,;�� r This Agreement entered into this day of - °` ', 20 a c't, by and between PA BASEMENTY' V�ARPROOFING INC., a Pennsylvania Corporation of 1525 Cedar CliffDrive, Camp Hill, PA 17011, Phone 800 -511 -6579 - Name(s) t ' - C ��' `" + `' (`7 l r �` � ► (Hereinafter referred to r as e " Phone Address t. i C`' i t C .4, .t City �� r y e Zip r Jt ►a 'S tate. r tj, Job Site �.�t �� , l City; S tate Zip PA Basement,Waterproofing Inc. and Owner in mutual consideration and intending to be legally bound hereby agree as follows: 1. PA Basement Waterproofing Inc: agrees to furnish materials, labor, and equipment to install sub grade/sub -floor water redirectional equipment in the "AREA TO BE SERVICED" ( "Work" ). 2. PA Basement Waterproofing Inc. agrees to start Work within approximately days and complete Work within approximately t - days. The parties agree that the completion date maybe extended due to circumstances beyond_the control of PA Basement Waterproofing Inc. such as weather or unforeseen conditions at the area to be serviced. - 3. _ Owner agrees to pay PA Basement Waterproofing Inc. as full compensation for the Work as follows:,-­- . TOTAL CASH PRICE: $ AMOUNT TO BE PAID BEFORE PA BASEMENT WATERPROOFIN G INC. BEGINS WORK: $ BALANCE DUE UPON COMPLETION: $ t I y �'> • �� : _ Any payment not made within ten (10) days of its due date shall incur 'a late fee of 1.5% per month until paid.. The 1.5% shall be reduced to the . highest rate permitted by law. If financed, complete the attached Federal Truth in Lending Forms - and Loan Agreement.. IfFinancing cannot be obtained, down payments made by Owner will be returned and this Agreement will be canceled. This Agreement is not a financing commitment. Financing is provided by a separate lending institution. The lender reserves the right to accept or reject your credit 4. •• AREATO BE SERVICED ti .D i SC UPTION OF WORKTO BE PERFORMED:. . Total linear feet to be serviced ft. r' AREA TO BE SERVICED ' DESCRIPTION OF WORK TO BE PERFORMED • - '- Rear Cove • • - ' ❑ Interior: PA Basement Waterproofing Inc: will install Q,Iiigh Impact polymeric drain core with flow channels " ft Right a.S6- floor - pressure relief system (3" or 4" ad flexible Le Cove Cove core perforated piping) _. eavy Duty Submersible Pump System ❑ Base Cove Plate System Front Cove: w s (Solid lines indicate cove area. The cove area is where thALall and floorpeet) ❑_ Other: ' See attached ADDENDUM �� .. .. - . • '_.- .,.e � ....-.: d.'.`- J" v.:-....:....-, �:...-/.- r- mrr_-...•." `.....r:.._...- �,- �.•..i'. -^ ._. _.cam.!_ . �«- ..,:i -. -��. THE AREA _TO SERVICED will be mark d 'th' ' No waterproofing Services will be performed to any area not containing an �� K1 PABASEMENT WATERPROOFING INC RECOMMENDSALLFOURWALLS 'BEWATERPROOFED.• 5. Cancellation. Owner may cancel this transaction at anytime prior to'midnight -of.the third business day after the date of this.transaction. See the Notice of Cancellation form for an explanation of this right 6. Permits. Owners shall be responsible for obtaining and paying for,all permits and approvals necessary for PA Basement „Waterproofing Inc. to perform its work. ' 7. Approval. This Agreement is not binding on PA Basement Waterproofing Inc. until it is approved and signed by an officer of PA Basement:: Waterproofing Inc. rk areas for PA Basement Waterproofing Inc.'s labor, equipment and vehicles. Owner 8. Access. Owner grants unrestricted access to wo agrees to allow areas for storage of materials. Owner agrees to keep driveways clear and available for movement and parking of vehicles and . trucks during normal working.hours.. PA Basement Waterproofing Inc. shall not be held responsible for damage to driveways, walks, lawns, shrubs, or other vegetation, by movement of trucks, laborers, equipment; materials, debris, etc, or otherwise. 9. Interior Access.. If it is necessary to inspect and/or work from the interior, as determined by PA Basement Waterproofing Inc. in its sole discretion, Owner agrees to provide complete access to and make the walls and floors bare in the Area to Be Serviced and agrees to make designated areas accessible to PABasement Waterproofing Inc. Owner is responsible for replacement of same only after notification from PA Basement Waterproofing Inc. 10. Pre - existing Conditions. PA Basement Waterproofing Inc: is not responsible for the repair of pre - existing structural conditions or problems. PA Basement PA Basement Waterproofing Inc. discovers pre - existing structural problems Waterproofing Inc. will notify Owner,if during its Work Pre- existing structural conditions and problems include deficiencies which existed in initial construction of the foundation or improper, unsound or no footings, hidden deficiencies uncovered as a result of a second slab floor overlay, sub- quality existing slab, slab cap crumbled floor slab, sub -floor soil slippage, Inc.'s overhead; if not initially or excessive erosion and/or undermining. The charges to Owner shall be limited over dirt flooring, to cost plus ri n t cover d f Basement Waterproofing nitially contracted for and if ever an d 'For PA Basement Waterproofing, Inc. to install a floor system, other than around the perimeter, due to springs, hydrostatic pressure, or otherwise. .NOTICE TO OWNER: DO NOT SIGN THIS AGREEMENT IN BLANK, OWNER IS ENTITLED TO A COPY OF THIS AGREEMENTATTHE Tm IT IS SIGNED. By signing this Agreement Owner acknowledges receipt of a copy of this Agreement. By signing this Agreement, Owner and all persons signing for Owner and with Owner agree to all terms, conditions and provisions ' contained in this Agreement. The terms and conditions include the terms on this page and on the reverse side.. ” r owner all persons signing the Agreement for and with Owner shall be severally, and jointly obligated and liable herein. , .This Agreement is not binding on PA Basement Waterproofing Inc. until it is approved by an officer of PA Basement Waterproofing Inc. WITNESS WI�RE�OF, in ending to be legally bound, the parties have hereunto set their h and seals the day and year above written Inspector` t \ EXHIBIT Owned Approved�by PA BASEMENT WATERPR By: Terms and Conditions •11.' PA•Basement Waterproofing Inc. Cancellation: •PA'. Basement Waterproofing Inc. reserves the ,rights to cancel this,Agreement if. during its Work It discovers conditions which :would prevent the* Installation of . :sub. fioor.system: Owner agrees to hold PA: Basement Waterproofing Inc.' harmless for damages which may result from cancellation of this Agreement. 12. Special Work Limitations /Requirements.. A.'Exterior Work Limitation If exterior work Is Basement Waterproofing Inc.'s responsibility shall be limited to rough grading. PA Basement. Waterproofing lnc: does' not guarantee the�survival of grass; plantings, trees or shrubbery.' ' •B::Pressure'Relief System.. if a'peessures relief. floor system -is installed initially or at a later date,- and methods(s) used shall „beat the sole . ... discretion: of PA:Basement`.Waterproofing Inc:= :If.floor::of: cove. system"is, installed is - such installation will be above and /or,.below.'floor.as Pa Basement . Waterproofing Inc: deems necessary. - - ? C. Submersible.:Sump:Requirements. If a subniersible,pump;is installed, Owner agrees to supply; adequate! electrical'power ;and Install.' - .'.outlets:and electricaVextdrislon cdid'sfor'the'subm6rslbl6'.pbmp§'.•lf Owner does'not, provide these,items the pump' may. nor function.properly PA Basement' . ' Waterproofing'lnc:_will not be. PA Basement Waterproofing will hot provide any warri nty. whatsoever - 'sumo pump discharge hoses will.' terminate at the splash block or at any other � 'area PA Basement Waterproofing Inc. deems best: D. Foundation and Seepage`If Owner has a stone; terracotta; vertical layer, poured concrete or brick foundation;' PA Basement Waterproofing Inca has' advised owner to have walls rough castered'aspart of this Agreement::.. ” E. Limitations of. Scope.of Work.-The agreed upon price does not:include rerouting or replacement of vents pipes, ducts, wiring conduits, tanks „ utilities,;.. wall or floor coverings, shrubbery,�abutments, obstructions. If necessary for PA Basement Waterproofing Inc. - to : drill through : exterior. concrete;. asphalt, :.'wood; 'slate; brick; or substance other ahan • earth ,'`PA.Basement'Waterproofing. c: assumes no liability -for' damage ao same,: but will` repair it in a workmanlike manner where PA Basement. Waterproofing 'Inc. shali'not be responsible for dam2ge to paneling,'file; and:carpet'.or`other obstruction, or. '. property on Wall; floor,.or otherwise: 13: WARRANTY AND LIMITATIONS OF LIABILITY : A Warranty Certificate will be Issued upon full payment after a short processingttme:.The Warranty Is` lifetime �PA Basement Waterproofing` Inc. system.. and seven years on sump pump: There will be no warranty unless. PA,Basement Waterproofing t nc: is paid in full. If:a,ny alteration is made to PA Basement Waterproofing Inc: system , without. written :permission"from PA.,Basement;.Waterproofing Inc: will have 'no further obligation to,Owner: PA Basement ,Waterproofing InC',warrants cement work as to proper mix and workmanship butdoes not guarantee cement against cracking, peeling or seftiing: PA BASEMENT. WATERPROOFING INC.zDOES "NOT.WARRANT`OR .'ASSUME. RESPONSIBILTY. WHATSOEVER FOR. ANY DAMAGE'TO THE INTERIOR OF -ANY BUILDING OR ITS CONTENTS CAUSED BY OR CLAIMED TO BE CAUSED. BY WATER SEEPAGE OR INFILTRATION: PA Basement lnc.`does not warrant against "conditions`over which it has no control, including but not. limited to structural damage; conditions .:of subsoil mason by other; fire; floods; backing up of sewer systems, .or acts of God..: EXCEPT - AS SPECIFICALLY PROVIDED '.IN THIS AGREENIENT:AND THE WARRANTY, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT. NOT. LIMITED TO,`ANY IMPLIED WARRANTIES MERCHANTABILTIY OR'FITNESS FOR` A '.PARTICULAR�PURPOSE:OR.IMPLIED WARRANTIES OF HABITABILITY AND -. WARRANTY COVERAGE, FOR �LATENT DEFECTS MADE BY PA` BASEMENT. WATERPROOFING, INC:` PA BASEMENT. WATERPROOFING, INC. SHALL.NOT, UNDER ANY CIRCUMSTANCES,' BE LIABLE TO OWNER FOR CONSEQUENTIAL OF INCIDENTAL DAMAGES EVEN IF THE WATERPROOFING SYSTEM.FAILS AND OWNER= SUSTAINS DAMAGES TO PROPERTY AND FURNITURE..:` PA BASEMENT WATERPROOFING INC.'S LIABILITY AND RESPONSIBILITY. UNDER THIS AGREEMENT IS LIMITED'TO -THE:SERVICE OF WATER ENTERING THE •:FLOOR COVE AREA OF.THE FOUNDATION..;PA BASEMENT WATERPROOFING INC: IS NOT RESPONSIBLE FOR CONDENSATION;'SWEATING, POROUS OR FILLED:: ;BLOCKS DAMPNESS OR` WATER' ENTERING -THE. PREMISES .THROUGH ABOVE SOiL'LEVELS; SURFALE WATER, ' =SOIL' CEILINGS, OR - OTHER ' ADDITIONAL,AREA: NOT-SPECIFIED. IWTHIS'AGREEMENT:. PA BASEMENT WATERPROOFING' IS' NOT "RESPONSIBLE FOR 'CONSEQUENTIAL WATER OR PROPERTY DAMAGE: PA BASEMENT WATERPROOFING INC IS ONLY RESPONSIBLE FOR THE WATER ENTERING THE FLOOR COVE AREA OF THE FOUNDATION. PA Basement Waterproofinglnc. "shall not be liable or 'responsible.for any damage beyond the amount.actualiy paid by Owner to PA Basement waterproofing.,, Inc. PA: Basement waterproofing Inc ::waterproofing liability is limited:to the amount paid -by Owner directly to. PA Basement.Waterproofing Inc. for the Work. . - - ' ;14. Remodeling. Restrictions'. `Owner to maintain system for;one year (1) from date of installation before Owner .rdinodels.or Improves' the basement or other area serviced; otherwise the Warranty hereunder shall be null and void:': 15. Conditions in work Area: PA'Basement Waterproofing Inc. will exercise caution'.during its Work and will leave 'Broom Clean '.;Owner . understands and `accepts that dust and general disruption will remain after. Work is complete: 16: Service Calls: Service calls for.continuing seepage problems within the scope of the Warranty will.be made'with :no additional charge to Owner. However, : if PA Basement waterproofing Inc: finds the,problem in`an area where no Work was doneand therefore it Is not covered by Warranty, or if the problem is not . an seepage problerri: (such'as leaking °pipes;, condensation,:: high :humidity, sewer back- ups, 'I d Gump 'pump, ,etc.), then PA Basement ,• Waterproofing Inc. reserves the right to charge.Owner.a $75.00 fee.for.service 17. :Default.IfiOwneris.in breach - of any of the .terms or.'conditionrofahis contract, in cluding,•,without. limitation; nonpayment or attempted cancellation (after the - day cancellation period):' Owner shall be in default, >and Pa Basement Waterproofinglnc: shall be entitled to payment of.the full agreement_price,as well as any remedies' provided by.law:and /or equity.•However -PA Basement Waterproofing Inc. agrees,that if the scheduled work has, begun at the time of the attempted cancellation;.PA Basement Waterproofing Inc:.will accept thirty percent (30 %) of the full cash price... ' • : ' .. 18: Joint and Several Uabilities: This is a joint and several agreementand it means.thet all'the Owners as a group and each of.the ownes as an individual are . . responsible to PA Basement Waterprooflnginc. for:all of the provisions'of, this'agreement, if there is a default; PA"Basement Waterproofing Inc: can sue all of_ the'Owners or, PA Basement waterproofing bring a lawsuit against any'ene Owner'sepa rate ly (severally)::. 19. Invalidity of.Provisions.:Inahe event ° any -one'or more provisions,of this Agreement is declared;to`be invalid -by a Court;•:all other terms and conditions of this Agreement shall be binding and enforceable. ''20: Entire Agreement.'This Agreement and the attached Addenda, If any; constitutes the entire Agreement between�PA Basement Waterproofing Inc. Owner ,,acknowledges that no promise representation of warranty, except those.expressly setforth In writing; have* been made by Pa Basement Waterproofing Inc.. or its agents. No modification or :addition to this Agreement will be valid or binding upon PA'Basement waterproofing Inc: unless agreed to In 'writing. ' , ' 21. Assignment.`PA Basement Waterproofing lnc has the right'to asslgn.and /or transfer this Agreement and other instruments executed by Owner. Owner may not assign of transfer this Agreement without written consent of PA Basement waterproofing Inc...;_..: '. 22. Jurisdiction and Venue. This agreement shall be governed by.and construed in accordance.with the laws of the.Commonwealth of Pennsylvania. Owner :consents to the exclusive personal jurisdiction. and venue sof the.Courts.of.Cumberland County, :Pennsylvania for'all litigation which may be.brought With .respect to or arising out of the terms of,and the transactioris and relationships contemplated by this agreement. ACTIVATION CODE PA Basement Wateproofing Inc. 1525 CEDAR CLIFF DRIVE,- SUITE 101 CAMP HILL';PA`170117 ( 717)- 737 - 2220..". (800)- 511 -6579 i FAX (877)- 280 -2235 www.pabasement.com . PA License PA001027 Date Issued: �) ��� C, + UndeCC�ontract -' 1'✓ �`" j }` Owner. Address: PA. Basement Waterproofing provides this Service Warranty ("Warranty") for labor and materials related to the area.contracted against water seeping in from the lower wall cove (where wall meets floor), the floor area as described below, and where a pressure relief system has been installed ( "work"). Customer recognizes that the Service Warranty is not valid until all monies due to PA Basement Waterproofing are paid in full. _ SERVICE,:WARRAN.TY _ Described Areas (one or more must be checked) •' of Warranty: V II four (4) walls (total perimeter) - Warranty includes total o - One (1) year erimeter of floor and total middle floor area. - Five (5) Years o ' 1 -2 -3 Walls Warranty In immediate floor area within (Entire Period in which owner holds title to property.,' 0 3 feet of wall as specified on contract. o Brick/Terra Cotta, Stone, Vertical layer, or poured concrete Limited Warranty: Foundation, PA Basement Waterproofing shall be responsible , Described Equipment'` ' to sery ice the seepage through the lower wall /floor system and not for seepage through wail(s) or wall Mortar /joints unless- ts:a listed under other. • Submersible Pump(s)Nrranty for free pump replacement o Two (2) Years • ( X :Seven (7) Years o Other i Notice: Submersible pump equipment is powered by electrical, power and must al ways be plugged in to a power source. SERVICE AGREEME T IS T NSFERABLE : _ - s: ; ' � PA BASEMENT WATERPROOFING, INC, :; SERVICE "WARRANTY TRANSFER :. : Upon endorsement by holder and the transmittal of this document to Pa Basement, this warranty is Transferable and assignable one time to parties as yet unnamed.for the duration.of the original stated warranty in accordance with the terms and conditions specified herei. ; n, _ provided that the new owners meet all.terms and conditions ofthe agreement accompanying this.warranty. To be effective, this service warranty transfer must be notarized and sent to Pa Basement's office within 30 days of transfer of title DO HEREBYREQUEST TRANSFER AND, RE- REGISTRATION OF THIS SERVICE WARRANTY TO:. .,.' FEE NAME: HOLDER'S NAME (PRINT) ADDRESS HOLDER'S SIGNATURE.: CITY, STATE, ZIP (HOME PHONE) (WORK PHONE) (CELL PHONE) DATE 44 NOTARY. EXHIBIT • � --.r-ter.-' S ..v" v , .. � �^_"+lY S^.` -ir =. - _.v_ _ a " .'n t��' � .L +�fefws YSl.ibu,sCbran __. _ .. - - PA BASE MENTWATERPROOFING. SERVICE POLICY . -.rye. F' Jf � L •The conditions and the construction materials of the foundation -walls and floor may, at times, require additional repair reinforcement from the inside. In this event, it will be Owner's obligation to . provide "access to the walls arrid floors b* "removing stored materials, paneling, or other obstructions. This will only be required when'Pa Basement deemsit necessary order to service the °` = • problem. Owner recognizes that this Warranty "is for labor: and materials 4 system only and does riot..inclnde wall :or floor coverings . -. and personal items in basement H. Pa Basement is not responsible for chafing, condensation; s porous or filled block or'defective mortar around block; and in. that event Pa Basement may recommend the application of exterior coatings to the walls.or foundation, which would be at additional cost to Owner-Should Owner decide to pursue - this additional work,ahe-service for exterior excavation and application of impermeable sealants or the application of interior sealants, coatings or rough coatings shall be at Owner's. additional. cost. M. Pa Basement is not responsible for dampness or water entering the Premises through ab6ve`s6il7evels,- surface runoff water,.. flooding, water.entering.. ows, doors; floor, stairways,.chimneys; conduit pipes, bomb.shelter,ceilings,'or sub soil, ceilings; or .; blockage causedby -tree roots.:" ,...... __'�..... .,. _...'_ ...•: ;_:.' .:::;:.,.:> :.:';a- , TV. If seepage occurs in the areas covered by.this Warranty, .Owner shall firstdetermirie "whetlier, the "sump pump is fiiiictioning: If the . sump`pump is functioning, :Owner should call Pa.. Basement imrnediately..IfPa.Basement deems:ifnecessary,.Pa Basement will.::- dispatch a service representative.to th'e' P ihisestto`deterniine if additional service is required. If additional service is required, Pa .Basement:will perform such services as soon -as practicable under the circumstances. V. Basement'warrants cement'wor. as to'proper.mix and workmanship; but does.not guarantee cement: against cracking,.dusting, peeling; :chafing; settling; or.any otheronditions� , VI:.`The- Vor inspection, and service *ni'be performed during normal working hours. If the problem does not arise .from an area . coved by the.VVork, then. Basement lnay _charge the Owner a Minimum fee'of $ plus additiorial.fees... -..VII. Pa Basement shall leave the area where the Work or service is performed in a "broom clean" condition. Nevertheless, some dust : and general disruption m'ay.remain= after the •Work or 'service is completed. Owner should cover all items in the areas adjacent to where the Work'or.'service is to,be performed with a dust proof tarp or other. similar covering and take similar steps to keep dust and residue from entering otherparts•of the .Premises including, turning off blowers to heater and air conditioning systems and covering doorways. and openings dust proof tarps. Under no circumstances .is Pa: Basement•responsible: for the removal or, cleaning of dust and residue 'or the damage resulting from any dust or residue.. VIII. Owner sl 1.immediatelynotify PaBasement :of ahY.breach by`Pa Basemerit of anyfailure of the Work or service to conform to the terms of the, Agreement:; Pa Baseineiit`sliall have the right tore -enter the Premises to inspect the Premises and' 11 be given a ; . reasonable opportunity to cure,any problems with the Work or service.. 1X. Pa Basement is not undertaking any Work on the exterior of the Premises except as expressly set forth in this Agreement. Therefore, the agreed upon total price in the,Agreement does not include rerouting, replacement or cleaning of gutter, downspouts, . vents, pipes, ducts; wiring conduits, or the removal or replacement of shrubbery; abutments or other obstructions. Pa Basement's only . responsibility with regard to any exterior work would be to perform rough grading, and Pa Basement does not guarantee the survival of s,- removed lantin trees: or. shrubb when exterior: work is. erfon ied.: �;...., .......,__.._. ; . __. '....: t� P , �,:. ery.. P r... . ... .. .. •rim• -` ; ��' • ... -.. ... ... - X. Should any'alteratiori be made to the by anyone other than.Pa Basement without the express written permission of Pa — Baseinent Owner breach the agreement entered into by; Pa Basement and Owner for the Work (Agreement "), all warranties provided under the: Agreement ;are deemed null and void and Pa Basement shall be relieved of any obligation to make'any service ',calls. ;Date Issued Under Contract: # Signature Datet . , , Signature Date 4 3 Estimate PA Basement Waterproofing Inc. DATE: OCTOBER 1, 2012 1525 Cedar Cliff Dr., Camp Hill, PA 17011 Phone 800 - 511 -6579 Fax 877 - 280 -2235 sales @nabasement.com TO Judy it Robert Berkheiser 1401 Elliot St. Williamsport, PA 17701 INSPECTOR JOB COST DUE DATE 1401 Elliot St. $7,582 Upon Completion • Dig outside for 2 drywells (front /rear drywells on left side of house) • Install piping from downspouts to both drywells • Back filled specified areas • Clean all 4 basement walls with mold cleaner, let dry • Spray rafters with same solution • Install breathable 90 mil wall covering with foil backing on all 4 walls. Approximately 1176 sq. ft. from ceiling to system • Clean up all job related debris EXHIBIT Thank you for your business! AMERISPEC NOME INSPECTION SERVICE Confidential Inspection Report Prepared for: This report is the exclusive property of the inspection company and the client whose name appears herewith and its use by any unauthorized persons is prohibited. EXHIBIT 9 Amerispec Confidential - for client use only. Use by any unauthorized persons is prohibited. Page 2 AXTER1SPFC Report: Mold Berkhiser 2580 Address: Report Table of Contents 3 MOLD /MILDEW REVIEW MOLD INFORMATION 4 ©Amerispec Confidential - for client use only. Use by any unauthorized persons is prohibited. naEwSrfic Page 3 y'� pm Report: Mold Berkhiser 2580 Address: MOLDWILDEW REVIEW CLIENT & SITE INFORMATION: FILE #: 201209 - 2580.:: :.. ;: ;. , DATE OF INSPECTION: 9- 28 -12. TIME OF INSPECTION: 12:00 m. - CLIENT NAME: Robert and Jud Berkheiser. INSPECTION SITE: 1401 Elliott Street..': INSPECTION SITE CITY /STATE /ZIP: Williamsport; PA,17701. " INSPECTOR: Travis Hammond::" ATTENDANCE:. Homeowner: HOME OCCUPANCY STATUS: Home.was at time of inspection. Fumiture, appliances, . and stored items limit vrsual inspection "during a mold inspecton:: When the.home is'emptied of contents, perform a review toensure that (here were no hidden areas of visible mold /mildew concerns CLIMATIC CONDITIONS: WEATHER: Clear: - TEMPERATURE: 72 Degre F " © Amerispec Confidential - for client use only. Use by any unauthorized persons is prohibited. >:.KxiS Page 4 MOLD INFORMATION 'S'1 AM.m,....�,.�.�,� Report: Mold Berkhiser 2580 Address: TESTING LOCATIONS: WHAT WAS DONE? Samples were taken at a minimum of three locations. First floor„ Basement, and Exterior... Swab sample taken at basement floor joist. WHERE? Exterior of home. This serves as the base, line sample for the laboratory to perform. a' comparison between samples (identifying the types and levels of spores in the area at time of the mold test MOLD /MILDEW CONDITION: OBSERVATIONS: Visible mold /mildew situation observed at: Basement GENERAL MOLD /MILDEW TYPES: The types of spores identified are commonly found indoors. See: EHS Report for descriptions:. The levels of spores identified are deemed to be elevated by the laboratory and corrective measures are advised Molds, mildew, and fungi require moisture to survive and propagate. They also prefer dimly lit and generally cool areas. Key to combating mold /mildew /fungi growth and preventing future occurrence is to solve the moisture issue This may be p oor draina e;'elevated hurnidity,or leak i es: CONTRIBUTING FACTORS: IS THERE A MOISTURE CONCERN? Moisture issues were observed at time of Inspection. Corrective measures are advised. WHAT ARE THE CONCERNS? 13=dry system installed in basement is not sealed at top of drainage system and this is . allowing moisture to enter basement area to create the moId.situatio RECOMMENDATIONS FOR CORRECTION: WHAT TO DO? Seal top of drainages stem so moisture will not enter basement area.. MOLD REMEDIATION: Recommend contacting a qualified Mold Remediation Company.to perform a professional r' in diction This inspection only covers the conditions as of the date this inspection. jhis is not a Warranty ora'guarantee.. Limits.exist with this inspection (i.e. inspector dOes not tear holes in the walls or cannot predict hidden forms of mold /mildew concerns). Unfamiliarity with property will always impact disclosure. © Amerispec Confidential - for client use only. Use by any unauthorized persons Is prohibited. Non- Viable Spore Trap 'ENS ..(a Analysis Report La6aratvrx`�s' Y p Environmental Hazards Services, L.L.C. Report Number: 12 -10 -00159 7469 Whitepine Rd Richmond, VA 23237 Received Date: 10/01/2012 Telephone: 800.347.4010 Analyzed Date: 10/01/2012 Client: Amerispec of Williamsport Reported Date: 10/01/2012 84 Becker Hill Road Williamsport, PA 17701 Project/Test Address: 1401 Elliot Street; Williamsport, PA 17701 Fax Number Client Number: Laboratory . Results 200949 . Lab # : 12 -10- 00159 -001 12 -10- 00159 -002 12 -10- 00159 -003 Client Sample ID: 1 2 3 Date Collected : 0912812012 09/28/2012 09/28/2012 Collection Location : EXTERIOR FIRST FLOOR BASEMENT Sampling Media • Air -O -Cell Air -O -Cell Air -O -Cell Analytical Sensitivity (sporeslm3) : 6.7 6.7 6.7 150 150 150 Volume (L) : Raw Results Raw Results Raw Results Raw Results ts Spore ID Count (sporeslm3) Count (Sporeslm3) Count (sporeslm3 ) Count (Sporeslm3 ) Count (Spores Cladosporium spores 38 250 27 180 8 53 Penicillium /Aspergillus group spores 63 420 200 40000 344 140000 Altemaria spores 2 13 Aureobasidium spores 3 20 2 13 Pyricularia spores 1 6.7 Curvularia spores 1 6.7 1 6.7 Stachybotrys spores 1 6.7 Torula spores 1 6.7 Chaetomium spores Pithomyces spores 3 20 3 20 Epicoccum spores 6 40 2 1 13 Cercospora spores 1 6.7 smuts, Periconia, myxomycetes 17 110 18 120 5 33 Taeniolella spores 1 6.7 TOTAL SPORES(Spores 1m3) 850 40000 140000 Analyst: Laura S. Carson Laura S. Carson Laura S. Carson Page 1 of 2 Environmental Hazards Services, L.L.0 Client Number: 200949 Report Number: 12 -10 -00159 Project/Test Address: 1401 Elliot Street; Williamsport, PA 17701 Sample Narratives: (Sample 002) MOB: Due to the high number of Penicillium /Aspergillus spores, a partial trace was analyzed for these spores. The analytical sensitivity for these spores on this sample is 200 spores /m3. (Sample 003) MOB: Due to the high number of Pen icillium /Asperg ill us spores, a partial trace was analyzed for these spores. The analytical sensitivity for these spores on this sample is 400 spores /m3. Method: Non - Culturable Spore Trap Examination Reviewed By Authorized Signatory : Felicia Butler Microbiology Analyst The condition of the samples analyzed was acceptable upon receipt per laboratory protocol unless otherwise noted on this report. Results represent the analysis of samples submitted by the client. Sample location, description, volume, etc., was provided by the client. The Client is hereby notified that due to the subjective nature of fungal analysis and the growth process of fungal infestation, laboratory samples can and do change over time relative to the originally sampled material. This report shall not be reproduced except in full, wtihout the written consent of Environmental Hazards Services, L.L.C. Page 2 of 2 ENS Air Report Summary Environmental Hazards Services, L.L.C. 7469 Whitepine Rd Richmond, VA 23237 Telephone: 800.347.4010 Project/Test Address: 1401 Elliot Street; Williamsport, PA 17701 Client Number: 200949 Report Number: 12 -10 -00159 This summary is based on the results obtained by Environmental Hazards Services for the samples taken at the above Project/Test Address. For details such as mold type and spore counts, please see the Report Number listed above. Environmental Hazards Services is a laboratory only, and this summary in no way constitutes a remediation plan. The test(s) performed is /are designed to give a "picture -in- time "; results and conditions in the property may change in the future. If the testing was performed as a result of the property currently experiencing a water infiltration or moisture problem, the source of the problem should be corrected immediately. The Environmental Protection Agency recommends that any indoor mold growth be addressed and all water or moisture sources be eliminated. Sample Number Location Sample Type Unusual Mold Condition(s) Exist 12 -10- 00159 -002 FIRST FLOOR Mold Air Yes 12 -10- 00159 -003 BASEMENT Mold Air Yes Unusual Mold Condition(s) Explanation Yes One or more of the samples in the table above indicate the presence of elevated indoor mold spores or colonies for these specific locations only. Professional advice will be necessary to determine the appropriate actions to take to correct the conditions indicated. The information in your report and this summary may be used by an Industrial Hygienist or an Indoor Air Quality professional to assist in the determination of necessary actions. The recommendations found in this summary are based on accepted industry standards develop by the American Conference of Governmental Industrial Hygienists (ACGIH), the EPA, and the New York City Department of Health.' For further information, please visit our website at www.leadiab.com 'Reference material includes the ACGIH publication : "Bioaerosols: Assessment and Control ", the EPA publication: " Mold Remediation in Schools and Commercial Buildings", and the New York Department of Health publication: "Guidelines on Assessment and Remediation of Fungi in Indoor Environments" Summary reports are generated by Environmental Hazards Services, LLC at the request of, and for the exclusive use of, the person or entity (client) named on this report. Reports or copies of same will not be released by Environmental Hazards Services, LLC to any third party without the prior express written consent from the client named in this report This report applies only to those samples taken at the time, place and location references by the client This report was designed by Environmental Hazards Services, LLC following current industry guidelines for the interpretation of microbial sampling and analysis. interpretation of these parameters is a scientific work in progress and may as such be changed at any time without notice. This report makes no express or implied warranty or guarantee as to the sampling methodology used by the client The client is solely responsible for the use and interpretation of these test results. Environmental Hazards Services, LLC makes no express or implied warranties as to such use or interpretation. Page 1 of 1 Mold Spore Descriptions fist 1 Environmental Hazards Services, L.L.C. 7469 Whitepine Rd Richmond, VA 23237 Telephone: 800.347.4010 Project/Test Address: 1401 Elliot Street; Williamsport, PA 17701 Client Number: 200949 . Report Number: 12 -10- 00159 Section 2: The following fungal descriptions are pertinent to the indoor samples collected. General characterization of mold is made with respect to their most common impact to human health. Many genera of molds have species with varying characteristics. Spore Name Description Cladosporium spores Reported to be allergenic. Most commonly identified spore in outdoor samples. Highly seasonal. Indoor species may differ from outdoor species. Typically found inside supply ducts. Penicillium /Aspergillus group Reported to be allergenic. Many species have been documented to produce mycotoxins, spores which may be associated with pulmonary disease in humans and other animals. Research studies have implicated several of these toxins as carcinogens in laboratory animals . following inhalation. A wide number of organisms have been grouped into these two genera. Extrememly difficult to identify down to species level. Typically identified in soil, cellulose, food, paint, compost piles, carpeting, wallpaper and in the fiberglass insulation used in interior ductwork. Alternaria spores Reported to be allergenic. Commonly found growing in carpets and on indoor textiles. This-fungi has been indicated as a potential cause of hypersensitivity pneumonitis. Mare species known to produce tenuazonic acid and other toxic metabolites that may cause disease in humans. Aureobasidium spores Reported to be allergenic. Commonly found in high moisture areas such as bathrooms and kitchens. Rarely associated with skin disorders. Pyricularia spores No information regarding the health effects of this genus is available at this time. All mold should be treated as potential allergens. Reported to be allergenic. No additional health data for this genus is available at this time. Curvularia spores Stachybots spores Toxigenic. Also recognized as an allergen. Typically a fungus of dark green /black coloration, it grows readily on building materials with a high cellulose content but low in nitrogen, and is rarely observed in outdoor samples. Certain strains of Stachbotrys may produce the mycotoxin, trichothecene under appropriate conditions which has been . ssociated with the circulatory, alimentary, skin and documented to cause problems a nervous systems. Absorption of trichothecene into the tissues of the human lung may cause a condition known as pneumomycosis. Although there have been conflicting studies concerning the toxicity of this fungi, it still appears that extreme caution should be practiced when-dealing, with this mold. - Torula spores Toxigenic. Also recognized as an allergen. Studies have shown that certain species may produce a toxin in the laboratory. Chaetomium spores Reported to be allergenic. Some species may be associated with disease in humans. Commonly found on the paper used as facing on sheetrock. Pith spores Reported to be allergenic. Some species may, in rare instances, produce the toxin sporidesmin. Epicoccum spores Reported to be allergenic. Commonly found on plants, textiles and products made of paper. Cercospora spores No information regarding the health effects of this genus is available at this time. All molds should be treated as potential allergens. smuts, Periconia, myxomycetes Reported to be allergenic. This class of fungal spores is most often related to agriculture and plant disease and is rarely found indoors. Page 1 of 2 Spore Name Description Taeniolella spores No information regarding the health effects of this genus is available at this time. All mold should be treated as potential allergens. Summary reports are generated by Environmental Hazards nm ntal Hazards Services, LLC to any the exclusive use of the person or entity without the prior express written consent from the client named n this reports or copies of same will not be released by taken report. This rr report applies only guide nes for the interpretation of microbial sampling and analysis. of these pa d b ameters is igned by sc entific work in pr ogress and nd may as such be foll g guarantee . as to the sampling methodology used the client The client is solely changed at any time without notice. This report makes no express or implied warranty or responsible for the use and interpretation of these results. Env warranties as to such use of interpretation. nmental Hazards Services, LLC makes no express or implied war Page 2 of 2 Non- Viable Surface /Bulk Aft Analys Report Environmental Hazards Services, L.L.C. Report Number: 12 -10 -00159 7469 Whitepine Rd Richmond, VA 23237 Received Date: 10/01/2012 Telephone: 800.347.4010 Analyzed Date: 10/01/2012 Client: Amenspec of Williamsport Reported Date: 10/01/2012 84 Becker Hill Road Williamsport, PA 17701 Project/Test Address: 1401 Elliot Street; Williamsport, PA 17701 Fax Number: Client umber f Laboratory Results. 200949 Lab # : 12 -10- 00159 -004 Collection Location: BASE FLOOR JOIST . Client Sample ID: Swab 4 Date Analyzed: 10/01/2012 Date Collected: 09/28/2012 Analyst: Laura S. Carson Numerous Penicillium /Aspergillus group spores Note: Quantification Key: Numerous: Several spores seen in every field Moderate: At least 1 spore seen in 5 fields Few: Over 5 spores seen per cover slip, but less than 1 spore seen in 5 fields Occasional: 1 -5 spores seen per a cover slip Method: Direct Microscopic Exam Reviewed By Authorized Signatory: `� r Felicia Butler Microbiology Analyst The condition of the samples analyzed was acceptable upon receipt per laboratory protocol unless otherwise noted on this report. Results represent the analysis of samples submitted by the client. Sample location, description, volume, etc., was provided by the client. The Client is hereby notified that due to the subjective nature of fungal analysis and the growth process of fungal infestation, laboratory samples can and do change over time relative to the originally sampled material. This report shall not be reproduced except in full, wtihout the written consent of Environmental Hazards Services, L.L.C. Page 1 of 1 f i a Swab /Bulk Report Summary Environmental Hazards Services, L.L.C. 7469 Whitepine Rd Richmond, VA 23237 Telephone: 800.347.4010 Project/Test Address: 1401 Elliot Street; Williamsport, PA 17701 Client Number: 200949 Report Number: 12-10-00159 he ProjectlTest This summary is based on the results obtained by Environmental Hazards Services vice for the samples t a i en at t Addr listed above. For details such as mold type and spore counts, please above. Environmental Hazards Services is a laboratory only, and this summary in no way constitutes r e i the futureT If te perfomred is � /are designed to gives picture -in -time n result and conditions in the property y 9 the testing was performed as a result of the property experiencing a water infiltation or moisture problem, the ty cur source of the problem should be corrected immediately. Sample Type Unusual Mold Condition(s) Exist Sample Number Location Mold Swab Yes 12 -10- 00159 -004 BASE FLOOR JOIST. Unusual Mold Condition(s) Explanation Yes One or more of the samples in the table above indicate the presence of elevated indoor mold spores or colonies for these specific locations only. Professional advice will be necessary to determine the appropriate actions to take to correct the conditions indicated. The information in your report and this summary may be used by an Industrial Hygienist or an Indoor Air Quality professional to assist in the determination of necessary actions. erican The recommendations found in this summary are based H accepted indu the New York City Department of Helath. Conference of Governmental Industrial Hygienists (ACGI ), he For further information, please visit our website at www.leadl bb.com named on this report. Summary reports are generated by Enviro be eased by Environmental azards Sery ices, LLC to t any third party without the prior express (client) written cons nt from the client Results, reports or copies of same will not named in this report. This report applies only to those samples taken at the time, place and location referenced by the client This report was designed by Environments ustry Hazards s Services as such be changed a any time notice. a This s report no express p r i and plied warranty or g arantee as to the sampltion of these parameters is a methodology used by progress Y the client The client is solely responsible for the use and interpretation of these results. Environmental Hazards Services, LLC makes no express or implied warranties as to such use of interpretation. Page 1 of 1 r • Mold Spore Descriptions Environmental Hazards Services, L.L.C. 7469 Whitepine Rd Richmond, VA 23237 Telephone: 800.347.4010 . ProjectlTest Address: 1401 Elliot Street; Williamsport, PA 17701 Client Number: 200949 Report Number: 12 -10 -00159 Section 2: The following fungal descriptions are pertinent to the indoor samples collected. General characterization of mold is made with respect to their most common impact to human health. Many genera of molds have species with varying characteristics. Spore Name Description Penicillium /Aspergillus group Reported to be allergenic. Many species have been documented to produce spores mycotoxins, which may be associated with pulmonary disease in humans and other animals. Research studies have implicated.several of these toxins as carcinogens in laboratory animals following inhalation. A wide number of organisms have been grouped into these two genera. Extrememly difficult to identify down to species level. entified in soil, cellulose, food, paint, compost piles, carpeting, wallpaper and Typically id in the fiberglass insulation so used in interior ductwork. Summary reports are generated by Environmental Hazards Services, LLC at the request of and for the exclusive use of the person or entity (client) named on this report. Results, reports or copies of same will not be released by Environmental Hazards Services, LLC to any third party without the prior express written consent from the client named in this report This report applies only to those samples taken at the time, place and location referenced by the client. This report was designed by Environmental Hazards Services, LLC following current industry guidelines for the interpretation of microbial sampling and analysis. Interpretation of these parameters is a scientific work in progress and may as such be changed at any time without notice. This report makes no express or implied warranty or guarantee as to the sampling methodology used by the client The client is solely responsible for the use and interpretation of these results. Environmental Hazards Services, LLC makes no express or implied warranties as to such use of interpretation. Page 1 of 1 Prepaid L DayTAT Prepaid 1 DayTAT Efls 1 FINI�IIl11i�lld!!lllllii711 91lll�lllGlldldillllll�lll !I: lVloldS ma r �2- �0 -oo�5s e. MA007122002 MA007121010. www.ltadlab.corn www.ltadlab.aom l fl[[ [III[ [ Ilf [II[[![Illll[II[lll[[[[II[I[I[f [Ilf hill[ [ I (� d 11[IIf 1J1 U LV I'(� J Pre paid 1 Day TAY ( a �/ {.1 �Q �. ` I'' 1 1 1 1 I l l t l 1 f 1 1 I 11 1 1 1�n i 1l Due Date: Lab ' tents Hazards SerFiCeS, .LL hI�ll41Illl l l(1!1.1 Pr epai d 1 my 10/02/2012 Envtronn l i wvrw.ltadla (Tuesday) UII�I�IIIIII�I�SI�I�IItiIe111�I11I�1 t . �� ttinyw.teadtab.com 7469 Whltepine Rd w w%weadlab.com AE (800) 347 -4010 Richmond, VA 23237 (804) 275.4907 ( fax) ' l ' 1, f Address: `�� __�z>C:�•�- . City /5uite2ip:_ Company Name:. .1�' ros: phone: PIZ Feld phone Number. ( ) ( ) l Zt� �-t��� t � r a 1t.0. Numtwr•. Acct. Huurber: �� c .!, F- •r ---�.� Cii }lStute(Re<luired): Testing Address: C� _ G - Iyl4 Collection Date: a 9— j-D-Ceticcted liy: b /_q ` Outside Air Temperature: Indoor AirTemperature: w t °F Vns There any precipitation (Rain, Sleet, or Snow) 2 Hou rs or Less l3eforc Taking the 5atnplesT eS y N S lore Tra TTY�PS ab Stultple Samplc'rype Codes l rfstce 1'Sry}e Tu rn Around Time (7�t� t') Aiao•Celt = ao 1)a .IJa ^ 3 -Uay CYeICAD = ❑ rrzth Rt mcdiatlnn Specitications Atrnv mrYiame ,u.Nlwttl�tnrtalle} ,tr y �- 3 (Fee R equired) I:, Hulk■ a Tojatli�aWoouatxriDoVSF C Same pay (A'fust Call Ahead) sWabms st h 14lostS =Ci emi =SP lfoul'ATisspecified ( s) Will he C) 1jith Clearance toter Na11Ct><e> aw Cau lAID-VS �Iloro5 tS Porous =P processed andchurge nk ]d3apTAT. P - Re � 7pylTbaawphili°Funtait7wntal . ' lltoTbPee7 1D Yrr t ! Standard Viable Sample TAT is 5.7 Days. Swttlt Samples Remarks Air SitmpltS t 1 �i 'plume htedta Type Surface Type Aren'aF Mold Collection Location r - � Samp � aT 90. i P /SPIP (In sgw�ro reel 1 T t Characters Sore Cru f �mtdcTalin O Y) (N � .ype (Limited to IS ) P p } (Total Sitars) t e I 3 t �� s `t 11 I �- ` �- v !Y i llI fi l � Datdt me Released by: � a Signotare: I G CJ, !! /�Yj,"j! r Released by, Sigoature: ` °: I Hoover CONTRACTOR, Inc. 202 Grove Street • South Williamsport, PA 17702 • 570 -321 -1540 Contractors License - PA015810 EPA Re istration # NAT - 24589 -1 October 8, 2012 Mr. and Mrs. Robert S. Berkheiser 1401 Elliott Street Williamsport, PA 17701 This statement is for the work performed in the basement and the side yard, of the above address. In the basement we closed the top edge of the plastic "waffle ", installed along the foundation during the work performed by another contractor;. trying to mitigate the moisture issue and hydrostatic pressure created by ground water under the concrete basement floor. We closed this top edge to prevent the excessive moisture from escaping into the basement air, which is causing the growth of mold on the framing lumber of the floor system above. This move was also suggested by a home inspection company, hired by the home owner to help with the situation. We closed the foundation waffle board by sealing the top edge with clear silicone sealant, known as "Through the Roof'. Some of the waffle gaps, at the outside foundation corners, were excessive as it wrapped around the comers. To these areas we secured the waffle to the foundation wall with concrete screws before applying the sealant. Other large gaps within the wall runs were filled first, and then sealed with the silicone caulking. We used a total of 26 tubes top and four hours labor. The total cost for this rep of caulking to close the plastic waffle is $469.80. During the work performed by the other contractor, to rid the basement of moisture, they installed and directed the water towards two separate sump pump pits. When the water reaches a certain level within the pit,. the pump would turn on and. discharge the water from the basement, through the foundation wall, way of PVC piping they installed, dumping onto the west side yard. This excessive water . had saturated the sod to the point where one could not mow or even walk across the area without sinking. We cut the sod and set it aside, then dug down 6" to 8 ", creating a ditch through the yard to the . side street, Faxon Parkway., Within the. yard space we joined both 1 al PVC pipes, dumping them into a 4" smooth, thin -wall PVC pipe and took it under the sidewalk and through the curb, to dump into the street at a storm sewer, catch basin. the We oa and r kpipe with the excavated dirt and capped the ditch with the removed sod; tamping to hide the piping. Any excessive dirt was removed from the property along with all equipment and any remaining materials. The cost of the side yard piping work, including all service time and materials is $1,960.99. EXHIBIT Amounts, $469.80 and $1,960.99, totaling $2,430.79, are due upon receipt of this statement. Any balance remaining after thirty days of this statement will be subject to a compounding, 2% monthly interest charge. If you have any questions concerning this statement or the work performed, please feel free to call. Thank you for entrusting us with your home, Craig E. Hoover General Contractor HIC #A 007484 PHONE: (570) 323 -1354 RAINBOW CARPET CLEANING & FIRE RESTORATION CO. 835 East Third St., Williamsport, PA 17701 Y V DATE ,. DATE TO BE DON // E BY W1 PHONE - 3 It 1 TAG # DESCRIPTION AMOUNT L N 6r ,r SPECIAL INSTRUCTIONS — ote any problems f or def cts 0 7 1v EXHIBIT 11035003112013 /Lycoming County Pennsylvania e 7 gg SOS835 / Docket Entries 3/1 Pa 1/201? Case No 2013 -00452 P ROBERT S. BERKHEISER & JUDY A. ,(VS) * PA BASEMENT WATERPROOFING, INC Date Filed SHERIFF'S RETURN 1 - ------- ------ - - - - - - FILED. ------ 2/21/13 NOTICE & COMPLAINT ----------------------------------------- $ 100.00 DEPOSIT --- ------- -- ---------- - - - 2/22/13 DEPUTISED THE SHERIFF OF CUMBERLAND COUNTY AND MAILED ATTORNEY CHECK #373 FOR $ 100.00 DEPOSIT. -- ------- ------ ----- - ------ ------- ------ ----- ---- ----- --------- -- 3/01/13 AT 11:46 A.M. - - - - - - - - - - DEPUTY WILLIAM CLINE, BEING DULY SWORN ACCORDING TO LAW, SERVED THE REQUESTED COMPLAINT & NOTICE BY HANDING A TRUE COPY TO A PERSON REPRESENTING THEMSELVES TO BE KATHY MOTTER SERVICE MANAGER WHO ACCEPTED AS "ADULT PERSON IN CHARGE" FOR PA BASEMENT WATERPROOFING, INC. AT 1525 CEDAR CLIFF DRIVE, SUITE 101, LOWER ALLEN TWP. CAMP HILL, PA 17011. BY: WILLIAM CLINE, DEPUTY SHERIFF OF CUMBERLAND COUNTY RONNY R. ANDERSON, SHERIFF OF CUMBERLAND COUNTY 3/11/13 SEE THE RETURN HEREIN ENDORSED BY THE SHERIFF OF CUMBERLAND COUNTY, AND MADE A PART OF THIS RETURN. SO ANSWERS, R. MARK LUSK, SHERIFF COST: $ 28.00 ------------------------------------ 0 AN r r 4Z SHERIFF'S COST: $ 28.00 R. MARK LUSK, SHERIFF (.)5j . a° m CJ .C> C= CD Cn RV f m -G 1 1 SHERIFF'S OFFICE OF CUMSERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith CIIIhb Chief Deputy Richard W Stewart Solicitor 0M CE CE OF THr SRRM ;: Robert & Judy Berkheiser . vs. PA Basement Waterproofing, Inc. Case Number 13 -00452 SHERIFF'S RETURN OF SERVICE 03/01/2013 11:46 AM - Deputy William Cline, being duly sworn according to law, served the requested Complaint & Notice by handing a true copy to a person representing themselves to be Kathy Motter, Service Manager, who accepted as "Adult Person in Charge" for PA Basement Wate:; Lc. at 25 Cedar Cliff Dr. Suite 101, Lower Allen Twp., Camp Hill, PA 17011. INE, DEPUTY SHERIFF COST: $35.96 SO ANS �� March 06, 2013 RO Z�R ANDERSON, SHERIFF f .73 U 1 „ J C :) t.lJ l.l_ Cr C—, d LLJ V ZE NOTARIAL SEAL cJJ J D N CLAUDIA A.- B EWBAKER, NO ARY Carlisle Boro, Cumberland County BUC My Commission Expires April 4, 2013 ---- -------- ------- ---- -------- ------- - - Affirmed and subscribed t before me this NOTARY - - - - - - - - - - - - - - - - - - - - - - - - - day of Q2� (c) CountySuito Shonfi, Teleosoft, Inc. SHERIFF'S RETURN IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY PENNSYLVANIA ROBERT S. AND JUDY A. PLAINTIFF NOTICE & COMPLAINT BERKHEISER VS. NO: 13- -00452 PA BASEMENT WATERPROOFING, INC. ISSUEDYEBRUARY 21, 2013 DEFENDANT RETURNABLE: MARCH 21, 2013 NOW, FEBRUARY 22, 2013 I, R. Mark Lusk, High Sheriff of Lyconiing County Penns lva ' hereby deputize the Sheriff ofCUkBERLAND County Pennsylvania, to execute this documen y nia, do deputation is being made at the request and risk of the Plaintiff. t• This The Defendant's alleged address is: 1525 CEDAR CLIFT DRIVE, SUITE 101, CAMP HILL PA 17011 1 Sheriff, Lycoming County Pennsylvania AFFIDAVIT OF SERVICE 517007 COURT OF COMMON PLEAS, LYCOMING COUNTY, PENNSYLVAN - 1 ? >' r- MOTION COVER SHEET ZZ z CD ROBERT S. and JUDY A. IN THE COURT OF,COMMON PLEAS -E - r� i BERKHEISER, LYCOMING COU TY, PENNSYQVXNIA -` Plaintiffs c; , 'o C "�lr V. NO. 13 -004 2 - �ry 00 PA BASEMENT WATERPROOFING, N INC., Defendant CIVIL ACTION - LAW Case assigned to onone ❑Family Court Hearing Officer 1. Name of filing party: Defendant, PA Basement Waterproofing, Inc. 2. Filing party's attorney: N. Randall Sees, Esquire 3. Type of filing: Preliminary Objections 4. The following is /are requested: 6. Name and addresses of filing and all counsel o Argument of record and unrepresented parties: ❑ Evidentiary Hearing ❑ Court conference N. Randall Sees, Esquire ❑ Rule to show cause McNERNEY, PAGE, VANDERLIN & HALL • Entry of uncontested order 433 Market Street, P.O. Box 7 (attach supporting documentation) Williamsport, PA 17703 • Expedited consideration. State the basis: Attorney for Defendant Robert A. Seiferth, Esquire ❑ Attach this cover sheet to original motion MITCHELL GALLAGHER, P.C. previously filed on: 10 West Third Street Williamsport, PA 17701 5. Time required: 30 Minutes Attorney for Plaintiffs ❑ Continued on separate sheet. ORDER 1. An Zargument X _factual hearing _court conference is scheduled for 03 at j\:.0 xb) jNZ in Courtroom No. 2. Lycoming County Courthouse, William ort; PA. 2. Briefs are to be filed by the following dates: Filing party Responding party(ies) 3. A rule is issued upon respondent to show c use why the petitioner is not entitled to the relief requested. 4. A response to the motion /petition shall be iced within days. 5. Other Jude jDate cc: Robert A. Seiferth, Esquire N. Randall Sees, Esquire 517007 ROBERTS. and JUDY A. IN THE COURT OF COMMON PLEAS BERKHEISER, LYCOMING COUNTY, PENNSYLVANIA Plaintiffs V. NO. 13 -00452 PA BASEMENT WATERPROOFING, INC., Defendant : CIVIL ACTION — LAW ORDER AND NOW, this day of 2013, upon consideration of Defendant's Preliminary Objections to Complaint, it is hereby ORDERED that the Complaint is DISMISSED for failure to state a claim upon which relief may be granted. BY THE COURT, J. 517007 - ROBERT S. and JUDY A. IN THE COURT OF COMMON PLEAS BERKNEISER, LYCOMING COUNTY, PENNSYLVANIA Plaintiffs V. NO. 13 -00452 PA BASEMENT WATERPROOFING, INC. Defendant CIVIL ACTION — LAW ORDER AND NOW, this day of 2013, upon consideration of Defendant's Preliminary Objections to Complaint, it is hereby ORDERED that this case shall be transferred to the Court of Common Pleas of Cumberland County pursuant to Pa.R.C.P No. 1006(e). BY THE COURT, J. 517007 ROBERT S. and JUDY A. IN THE COURT OF COMMON PLEAS BERKHEISER, LYCOMING COUNTY, PENNSYLVANIA Plaintiffs v. NO. 13 -00452 , PA BASEMENT WATERPROOFING, INC., Defendant CIVIL ACTION - LAW °C, -<c c R DEFENDANT'S PRELIMINARY OBJECTIONS TO COMPLAINT` AND NOW, comes the Defendant, PA Basement Waterproofing, Inc., by and through its attorneys, McNerney, Page, Vanderlin & Hall, who preliminarily objects to Plaintiffs' Complaint and in support thereof state as follows: 1. Plaintiffs filed their Complaint on or about February 21, 2013. 2. The Complaint alleges counts sounding in negligence and violations of the Unfair Trade Practices and Consumer Protection Law. 3. However, the basis of Plaintiffs' claims is an alleged failure to perform properly under the parties' contract and to comply with the terms of the service warranty. MOTION TO TRANSFER FOR IMPROPER VENUE 4. Paragraphs 1 through 3, above, are incorporated herein by reference as though fully set forth. 5.. Pa.R,C.P. No. 1028(a)(1) provides that a party may file preliminary objections to any pleading on the ground of improper venue. 6. Pa.R.C.P. No. 1006(e) provides that, if a preliminary objection as to improper venue is sustained, the action shall be transferred to the appropriate court in the county of proper venue. 517007 7. Attached to the Complaint as Exhibit A is the Agreement between the parties dated June 18, 2012. 8. Paragraph 22 of the June 18, 2012 Agreement states that Plaintiffs "consent to the exclusive personal jurisdiction and venue of the Courts of Cumberland County, Pennsylvania for all litigation which may be brought with respect to or arising out of the terms of and the transactions and relationships contemplated by this agreement." (Exhibit A, p.2, ¶22.) 9. The Complaint makes clear that Plaintiffs' claims arise out of the terms, transactions and relationships contemplated by the June 18, 2012 Agreement. 10. Therefore, proper venue for this matter is the Court of Common Pleas of Cumberland County. WHEREFORE, Defendant PA Basement Waterproofing, Inc. respectfully requests that its Preliminary Objection regarding improper venue be sustained and that the action be transferred to the Court of Common Pleas of Cumberland County pursuant to Pa.R.C.P. No. 1006(e). DEMURRER — GIST OF THE ACTION DOCTRINE 11, Paragraphs 1 through 10, above, are incorporated herein by reference as though fully set forth. 12. Pa.R.C.P. No. 1028(a)(4) permits a preliminary objection for legal insufficiency of a pleading' (demurrer). 13. Under Pennsylvania law, the gist of the action doctrine prevents plaintiffs from recasting an ordinary breach of contract claim into a tort claim. eToll, Inc. v. Elias /Savion Adver., Inc. 811 A.2d 10 (Pa. Super. 2002). 517007 14. Because the gist of Plaintiffs' Complaint is a breach of contract and /or warranty, Counts I and II are barred by the gist of the action doctrine. 15. Accordingly, Counts I and II fail to state a claim upon which relief may be granted. WHEREFORE, Defendant respectfully requests that this Court dismiss Counts I and II of Plaintiffs' Complaint for failure to state a claim upon which relief may be granted. DEMURRER — COUNT I 16. Paragraphs 1 through 15, above, are incorporated herein by reference as though fully set forth. 17. Count I generally alleges negligence by Defendant caused the development of mold in Plaintiffs' basement. 18. Count I fails to allege any duty on the part of Defendant to seal the top of the plastic "waffle" installed along the foundation and such action was not included in the parties' contract. 19. Count I fails to allege Defendant had a duty to extend the sump pump discharge lines to any particular location and the contract specifically states they will terminate at the splash block. (Exhibit A, p.2, 112(C).) 20. The contract specifically states and the parties agreed that Defendant is notl responsible for any dampness or any consequential property damages. (Exhibit A, p.2, ¶13.) 21. Count I fails to allege how Defendant's waterproofing system promoted the development of mold. ' 517007 22. Count I fails to allege any work done by Defendant that was performed in a careless or haphazard manner. 23. Count I fails to allege any duty on the part of Defendant to warn of any risk of the development of mold. WHEREFORE, Defendant respectfully requests that this Court dismiss Count I of Plaintiffs' Complaint for failure to state a claim upon which relief may be granted. DEMURRER — COUNT II 24.. Paragraphs 1 through 23, above, are incorporated herein by reference as though fully set forth. 25. Count II fails to allege even a single instance in which the nature or quality of Defendant's work under the parties' agreement was inferior to or below the standard agreed to in writing. 26. Count II fails to allege even a single instance in which Defendant failed to comply with the terms of its service warranty. 27. Count II fails to allege even a single instance in which Defendant knowingly misrepresented that services, replacements or repairs were needed. 28. Count II fails to allege even a single instance in which Defendant engaged in fraudulent or deceptive conduct. WHEREFORE, Defendant respectfully requests that this Court dismiss Count II of Plaintiffs' Complaint for failure to state a claim upon which relief may be granted. " a 517007 MOTION FOR A MORE SPECIFIC PLEADING — COUNTS I AND II 29. Paragraphs 1 through 28, above, are incorporated herein by reference as though fully set forth. 30. Pa.R.C.P. No. 1028(a)(3) allows a party to preliminarily object to a pleading based upon a lack of specificity. 31. Under Pennsylvania law, a motion for a more specific pleading should be granted when the pleading is insufficiently specific to inform the responding party with accuracy and completeness of the allegations made against it. Rambo v. Greene 906 A.2d 1232 (Pa. Super. 2006). 32. Counts I and II of Plaintiffs' Complaint fail to specify sufficiently those facts necessary to inform Defendants with accuracy and completeness of the allegations made against them. 33. Count I fails to allege facts necessary to support Plaintiffs' contention that work performed by Defendant caused or promoted the development of mold. 34. Count I fails to allege facts necessary to support Plaintiffs' contention that Defendant was negligent in failing to extend the sump pump discharge lines a sufficient distance. 35. Count I fails to allege facts necessary to support Plaintiffs' contention that Defendant completed any work in a careless or haphazard manner. 36. Count I fails to allege any facts to support Plaintiffs' contention that Defendant is liable for any aggravation of bronchitis. 517007 37: Count II fails to allege any facts to support Plaintiffs' contention that Defendant's work was of a nature or quality inferior to or below the standard agreed to in writing. 38. Count II fails to allege any facts to support Plaintiffs' contention that Defendant failed to comply with the terms of its service warranty. 39. Count II fails to allege any facts to support Plaintiffs' contention that Defendant knowingly misrepresented that services, replacements or repairs were needed. 40. Count II fails to allege any facts to support Plaintiffs' contention that Defendant engaged in any fraudulent or deceptive conduct that created the likelihood of confusion or misunderstanding. WHEREFORE, in the alternative, if the Court does not dismiss Counts I and 11 of Plaintiffs' Complaint, Defendants respectfully request that Plaintiffs be ordered to file a more specific pleading that informs Defendant with accuracy and completeness of the claims made against it. Respectfully submitted, McNERNEY, PAGE, VANDERLIN & HALL By: N. Randall Sees, Esquire I.D. No. 89386 Attorney for Defendant 433 Market Street, P.O. Box 7 Williamsport, Pennsylvania 17703 Telephone: 570 - 326 -6555 nsees @mpvhlaw.com Date: ZDl3 " 517007 CERTIFICATE OF SERVICE I hereby certify that on the Zl day of March 2013, a true and correct copy of Defendant's Preliminary Objections to Complaint was served upon Robert A. Seiferth, Esquire, attorney for Plaintiffs, by placing the same in his designated box at the Office of the Prothonotary, Lycoming County Courthouse, Williamsport, Pennsylvania, the original having been filed with the Prothonotary of Lycoming County on the same date. McNERNEY, PAGE, VANDERLIN & HALL By: N. Ra dall Sees, Esquire I.D. No. 89386 Attorney for Defendant 433 Market Street, P.O. Box 7 Williamsport, PA 17703 Telephone: (570) 326 -6555 nsees @mpvhlaw.com IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSY VANIA ROBERT S. and JUDY A. BERKHEISER, : NO. 13 - 00,452 Plaintiff CIVIL ACTION -LAW vs. PA BASEMENT WATERPROOFING, INC., Defendants Preliminary Objections ORDER AND NOW, this 29th day of May 2013, after argument on the Preliminary Objections filed by Defendant on March 21, 2013, the motion to transfer for improper venue is hereby granted and this matter is transferred to the Court of Common Pleas of Cumberland County. The agreement between the parties, attached to the Complaint as Exhibit "A ", provides for venue in Cumberland County "for all litigation which may be brought with respect to or arising out of the terms of and the transactions and relationships contemplated by this agreement." Even if the court were to find that the negligence claim of Count I was a proper claim, rather than a claim for breach of contract,' the language of the agreement is broad enough to cover such a claim. The Prothonotary is directed to forward to the Prothonotary of Cumberland County certified copies of the docket entries, process, pleadings, depositions and/or other papers filed in the action. The costs and fees for transfer and removal of the record shall be paid by Plaintiffs. The remaining preliminary objections shall be addressed by the Court of Common Pleas of Cumberland County. BY THE COURT, cc: Robert A. Seiferth, Esq. �� z J ,/N. Randall Sees, Esq. Prothonotary Dudley N. Anderson, Judge , C _... r CD _ - 1 One of the preliminary objections asserts that the proper claim is not for neglige ce:but for breach -of contract, under the "gist of the action doctrine ". Q ` e � rn r~� o ROBERT S. AND JUDY A. • IN THE COURT OF COMMON PLEAS BERKHEISER, • OF CUMBERLAND COUNTY Plaintiffs • • NO. 13-4207 VS. PA BASEMENT WATERPROOFING, INC: Defendant PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Kindly the mark the above matter as discontinued on the docket with prejudice. Robert Seiferth I.D. No. 20481 Attorney for Plaintiffs 33 W. Third Street, Suite 203 Williamsport, PA 17701 (570) 601-4127 (570) 601-4206 facsimile robert@)seiferthlaw.com Date: Vd S' ca rri f r! cpr- 9 G' -C [.7