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HomeMy WebLinkAbout14-2626 Supreme Co 4 4, , ennsylvania COUP CO�IIliY-0 leas For Prothonotary Use Only: / t Docket No: Cu erla d County l� , F '+ The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service ofpleadings or other papers as required by law or rules of court. Commencement of Action: S 0 Complaint X Writ of Summons El Petition E 0 Transfer from Another Jurisdiction 0 Declaration of Taking C Lead Plaintiffs Name: Lead Defendant's Name: T Patricia Larson Herb Construction et al I Are money damages requested? Ix, Yes El No Dollar Amount Requested: ❑ within arbitration limits (check one) Il outside arbitration limits N Is this a Class Action Suit? E Yes FRI No Is this an MDJAppeal? 0 Yes El No A Name of Plaintiff /Appellant's Attorney: Richard B. Druby, Esquire O 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 PRIMARYCASE. 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 M Intentional it Buyer Plaintiff Administrative Agencies El Malicious Prosecution [3 Debt Collection: Credit Card 1-1 Board of Assessment Motor Vehicle Debt Collection: Other E] Board of Elections 0 Nuisance Q Dept. of Transportation Premises Liability E Statutory Appeal: Other S 0 Product Liability (does not include E mass tort) � Employment Dispute: h Slander /Libel/ Defamation Discrimination C L_ -r Other: ® Employment Dispute: Other 0 Zoning Board 'r 0 Other: T x Other: O MASS TORT Breach of Contract El Asbestos N D� Tobacco [J Toxic Tort - DES n Toxic Tort -Implant REAL PROPERTY MISCELLANEOUS Toxic Waste ® Other: 0- Ejectment . it] Common Law /Statutory Arbitration B EJ Eminent Domain /Condemnation ❑ Declaratory Judgment ❑� Ground Rent E] Mandamus (] Landlord /Tenant Dispute ] Non - Domestic Relations O Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY ❑Ca Mortgage Foreclosure: Commercial 0 Quo Warranto 0 Dental 0 Partition Replevin ® Legal ® Quiet Title ❑❑ Other: C1 Medical Other: ❑ Other Professional: Updated 1/1/2011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Plaintirr(s) & Address(es) PATRICIA LARSON 227 North 21st Street ' Camp Hill, PA 17011 ; vs. Case No. Civil Term Civil Action Defendant(s) & Address(es) HERB CONSTRUCTION, LLC, ; JASON HERB CONSTRUCTION and , JASON HERB, Individually and d /b /a HERB CONSTRUCTION, LLC and JASON HERB CONSTRUCTION 200 North 32 Street Camp Hill, PA 17011 PRAECIPE FOR WRIT OF SUMMONS U) r— TO THE PROTHONOTARY /CLERK OF SAID COURT: -�G c� ) ...y Issue summons in the above case c � C Writ of Summons shall be issued and forwarded to ttorne h (Pleas irc choice = y —. __j Date : Signature ttor y Print Name: Richard B. Druby, Esquire Address: 1135 East Chocolate Avenue, Suite 300 Hershey, PA 17033 Telephone #: 717- 533 -5406 Supreme Court ID Number: 61904 WRIT OF SUMMONS 3�St'1 TO: HERB CONSTRUCTION, LLC, JASON HERB CONSTRUCTION and JASON HERB, Individually and d /b /a HERB CONSTRUCTION, LLC and JASON HERB CONSTRUCTION YOU ARE NOTIFIED THAT THE ABOVE -NAMED PLAINTIFF(S) VE COMMENCED AN ACTION AGAINST YOU. v Prot ry /Clerk, Civil Division Date: 30 b y Deputy �'`it7f� � A I'I Bid NO J ` RICHARD B. DRUBY, ESQUIRE PA Attorney I.D. No. 61904 Nestico Druby, PC 1135 East Chocolate Avenue Suite 300 Hershey, PA 17033 Tel: 717-533-5406 rdruby@hersheypalaw.com Attorney for Plaintiff PATRICIA LARSON, Plaintiff v. HERB CONSTRUCTION, LLC, JASON HERB CONSTRUCTION and JASON HERB, individually and d/b/a HERB CONSTRUCTION, LLC and JASON HERB CONSTRUCTION, Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 14-2626 : CIVIL ACTION ACCEPTANCE OF SERVICE I, Ernest Woolever, Esquire, hereby accept service of the Writ of Summons on behalf of Defendants, Herb Construction, LLC, Jason Herb Construction and Jason Herb, individually and d/b/a Herb Construction, LI .0 and Jason Herb Construction and certify that I am authorized to do so. Dated: .Sl C5--j/tl E . Woolever, Esquire I. .No. 770 �2 315 County Line Road Palmyra, PA 17078 Counsel for Defendants �L--i,lF`D-iii' r ri ICT O THE HE PROTHONO 'i 2B 1 SEP 19d 11:.a 0 CUMBERLAND COUNTY PENNS ¥LNIA RICHARD B. DRUBY, ESQUIRE PA Attorney I.D. No. 61904 Nestico Druby, PC 1135 East Chocolate Avenue Suite 300 Hershey, PA 17033 Tel: 717-533-5406 rdruby@hersheypalaw.com Attorney for Plaintiff PATRICIA LARSON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 14-2626 HERB CONSTRUCTION, LLC, JASON HERB CONSTRUCTION and JASON HERB, individually and d/b/a HERB CONSTRUCTION, LLC and JASON HERB CONSTRUCTION, : CIVIL ACTION Defendants. : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty 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 LAWYER REFERRAL SERVICE COURT ADMINISTRATOR 4TH FLOOR, CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 (717) 240-6200 1 PATRICIA LARSON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 14-2626 HERB CONSTRUCTION, LLC, JASON HERB CONSTRUCTION and JASON HERB, individually and d/b/a HERB CONSTRUCTION, LLC and JASON HERB CONSTRUCTION, : CIVIL ACTION Defendants. : JURY TRIAL DEMANDED NOTICA LE HAN DEMANDADO A USTED EN LA COURTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siquientes, usted tiene viente (20) dias de plazo al partir de lan fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archival en la corte en forma escrita sus defensas o sus objeciones a law demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacaion y por cualguier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE AGOGADO 0 SI NO TIENCE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE COURT ADMINISTRATOR 4TH FLOOR, CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 (717) 240-6200 2 PATRICIA LARSON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 14-2626 HERB CONSTRUCTION, LLC, JASON HERB CONSTRUCTION and JASON HERB, individually and d/b/a HERB CONSTRUCTION, LLC and JASON HERB CONSTRUCTION, : CIVIL ACTION Defendants. : JURY TRIAL DEMANDED COMPLAINT 1. The Plaintiff is Patricia Larson (hereinafter "Plaintiff'), an adult individual whose residence address is 227 North 21St Street, Camp Hill, Cumberland County, Pennsylvania (hereinafter "Residence"). 2. Defendant, Herb Construction, LLC, (hereinafter "Herb, LLC") is a Pennsylvania Limited Liability Company with a principal place of business at 200 North 32nd Street, Camp Hill, Cumberland County, Pennsylvania and a Home Improvement Contractor Number PA078985. 3. Defendant, Jason Herb Construction (hereinafter "JHC") is a purported business entity with a principal place of business at 200 North 32nd Street, Camp Hill, Cumberland County, Pennsylvania. 4. Defendant, Jason Herb (hereinafter "Herb"), is an adult individual, who does business as Herb Construction, LLC and Jason Herb Construction, with a principal place of 3 business at 200 North 32nd Street, Camp Hill, Cumberland County, Pennsylvania. 5. At all times relevant hereto, Defendants were engaged in the business of home improvements to residential consumers, and Defendants held themselves out to the public as experienced and capable in the field of home improvements. 6. In the fall of 2012, Plaintiff hired Defendants to perform home remodeling/home improvement projects at her Residence. 7. The projects Defendants were hired to complete included the installation of a new fireplace hearth and an electric fireplace insert in the fireplace in the living room of the Residence, the installation of a backsplash, tile, Formica and a microwave in the kitchen, the conversion of a garage to a new dining room, installation of trimwork and painting of the ceiling in the basement of the Residence and the construction of a carport, concrete under carport, and as part of the patio, and construction of a fence near the carport. 8. Defendants did not provide Plaintiff with a written contract for the work itemized above nor did Defendant provide proof of materials purchased 9. Defendants failed to complete aspects of the work, despite promises to do so. The Defendants failed to: (a) Properly complete the tile work in the kitchen; (b) Properly secure the Formica countertop; (c) Properly install trim edge on counter to the right of the stove; (d) Properly fix hole in the plaster created by the removal of the fan in the kitchen. 4 (e) Properly complete brick work on outside of the home. (f) Properly complete fencing and properly construct the fence. 10. Additionally, Defendants performed work at the Residence in an unworkmanlike manner for reasons which include, but are not limited to, the following: (a) Defendants' failure to properly install the rafters of the carport as the building code requires that the rafters be continuous and overlap each other over the bearing points, which these rafters do not; (b) Defendants' failure to properly install the rafters of the carport, as the rafters do not sit flush, resulting in inadequate bearing strength. (c) Defendants' failure to construct the carport with appropriate lateral bracing to resist lateral movement as the structure sways from side to side and front to back; (d) Defendant's failure to properly install the underlayment of the carport roof surface to prevent deterioration of the roof surface and leakage at the roof eaves; (e) Defendants' improper installation of the roof underlayment underneath the drip edge; (f) Defendants' failure to properly size the drip edge to allow water to drain into the gutter system; (g) Defendants' failure to ensure that the gutters were installed flush in order to avoid leaks; (h) Defendants' failure to install adequate post caps on the ten 6x6 wood posts of the carport so that the carport resists lateral movement and uplift; 5 (i) Defendants' failure to properly nail the vinyl soffit and vinyl J -channel to allow for proper expansion and contraction of the vinyl; (j) Defendants' improperly installing aluminum over the wood beams and treated wood posts because the aluminum has reacted with the treated wood causing premature deterioration of the aluminum; (k) Defendants' failure to properly seal the aluminum joints to prevent moisture entry; (1) Defendants' failure to properly lay concrete as it is cracking and flaking; (m) Defendants' failure to install a weather resistant barrier behind the exterior of the new dining room enclosed by Defendants, resulting in moisture infiltration, mold and rot; (n) Defendants' improper application of weather resistant barriers in constructing the new dining room; (o) Defendants' failure to properly and adequately seal and waterproof the new dining room; (p) Defendants' improper construction of the enclosure to the new dining room causing the exterior sheathing and sill plate to rot and grow mold; (q) Defendants' failure to properly caulk or seal the area around the new dining room to prevent water and moisture intrusion; (r) Defendants' failure to prevent moisture, dampness and/or water 6 conditions to develop inside the perimeter wall cavities of the Residence due to its failure to properly construct the dining room; (s) Defendants' failure to prevent high amounts of fungi and/or mold to grow inside the wall cavities; (t) Defendants' failure to prevent water, moisture and dampness from building up in the Residence; (u) Defendants' failure to test moisture levels upon completion of construction to ensure that those levels were acceptable; (v) Defendants' use of forms for concrete to construct outer surface of new dining room; (w) Defendants' failure to properly install the fireplace vent; (x) Defendants' failure to adequately cap the chimney once the electric insert was installed in the fireplace; (y) Defendants' failure to complete painting so that cabinets match remaining items in dining room; (z) Defendants' failure to secure countertop next to fireplace; (aa) Defendants' failure to grout tiles on fireplace; (bb) Defendants' failure to secure steps from kitchen to dining room (cc) Defendants' failure to properly install the weather proof electrical service head, as Defendants installed it in a direction which can allow entry into the electrical main; 7 (dd) Defendants' failure to install the main electrical panel in compliance with the building code as the service disconnect is not installed within 25 feet of the electrical meter; (ee) Defendants' failure to perform those home improvements to the Residence to acceptable standards and in such a way as to not restrict the normal intended use of the Residence; (ff) Defendants' failure to meet the standards required of a residential home improvement contractor; (gg) Defendants' failure to properly train, supervise and inspect the workmanship of those individuals and companies performing the work on the Residence; (hh) Defendants' failure to do all things necessary for the proper improvement and remodeling of the Residence; (ii) Defendants' failure to furnish their best skills and judgment in the improvement and remodeling of the home; (ji) Defendants' failure to correct and remedy the problems it created and which Plaintiff is experiencing with the Residence; (kk) Defendants' use of improper or inadequate materials; (11) Defendants' failure to use proper and adequate materials; and (mm) Defendantsfailure to use that degree of care required under the circumstances. 8 11. As a result of the above, Plaintiff has incurred and will in the future incur large sums to repair and/or remediate the problems and may suffer a significant loss of fair market value of their home. COUNT I - BREACH OF CONTRACT 12. The foregoing paragraphs are hereby incorporated by reference as if fully set forth herein. 13. During the fall of 2012 and beyond, Defendants agreed to perform certain work as set forth elsewhere in this Complaint. 14. As alleged above, Defendants did not complete the improvements they agreed to perform, failed to construct those improvements to Plaintiff's Residence in a good and workmanlike manner, resulting in the problems noted in Paragraphs 9 and 10, above, and Defendants are therefore in breach of the oral agreement. 15. By reason of Defendants' breach of the oral agreement by failing to provide workmanlike construction, Defendants have caused damage to the Plaintiff including, but not limited to, the costs to remediate or correct the defects, the costs of completing the work Defendants failed to complete, the potential loss of the home's fair market value and other incidental and consequential losses which have accrued and continue to accrue. 16. By reason of the aforesaid, the Plaintiff is entitled to judgment for damages against the Defendants in an amount greater than $50,000.00. WHEREFORE, Plaintiff demands judgment for damages against Defendants, in an amount greater than $50,000.00, along with interest and costs of suit. 9 COUNT II - BREACH OF IMPLIED WARRANTY OF GOOD AND WORKMANLIKE PERFORMANCE 17. The foregoing paragraphs are hereby incorporated by reference as if fully set forth herein. 18. As a contractor in the business of constructing improvements and remodeling residential homes, Defendants impliedly warranted that the work they were performing in remodeling and improving the Residence would be done in a good and workmanlike manner. 19. As alleged above, the Defendants did not perform the improvements and remodeling in a good and workmanlike manner, resulting in the problems as described elsewhere in this Complaint, and Defendants are therefore in breach of that warranty. 20. By reason of the Defendants' breach of the implied warranty of good and workmanlike construction, the Defendants have caused damages to the Plaintiff as stated above. 21. By reason of the aforesaid, the Plaintiff is entitled to judgment for damages against the Defendants in an amount greater than $50,000.00. WHEREFORE, Plaintiff demands judgment for damages against Defendants, in an amount greater than $50,000.00, along with interest and costs of suit. 10 COUNT III VIOATION OF THE HOME IMPROVEMENT CONSUMER PROTECTION ACT, 73 P.S. 517.1, et seq. 22. The foregoing paragraphs are hereby incorporated by reference as if fully set forth herein. 23. Pursuant to the Home Improvement Consumer Protection Act (hereinafter "HICPA"), a "Home improvement contract" is defined as an "agreement between a contractor, subcontractor or salesperson and an owner for the performance of a home improvement which includes all agreements for labor, services and materials to be furnished and performed under the contract." 73 Pa. Stat. Ann. § 517.2 (West) 24. Also, pursuant to HICPA, "Home improvement" means: (1) The term includes all of the following done in connection with land or a portion of the land adjacent to a private residence or a building or a portion of the building which is used or designed to be used as a private residence for which the total cash price of all work agreed upon between the contractor and owner is more than $500: (i) Repair, replacement, remodeling, demolition, removal, renovation, installation, alteration, conversion, modernization, improvement, rehabilitation or sandblasting. 73 Pa. Stat. Ann. § 517.2 (West)(emphasis added). 25. Additionally, Section 517.1 of HICPA provides that no home improvement contract shall be valid or enforceable against an owner unless it is in writing and signed by both the owner and the contractor. 11 26. Defendants failed to present to Plaintiff a written agreement for the work to be performed by Defendants on behalf of Plaintiff, in violation of HICPA. 27. Moreover, pursuant to §517.9(5) of HICPA, it is a violation of the Act to "Abandon or fail to perform, without justification, any home improvement contract or project engaged in or undertaken by a contractor." 73 Pa. Stat. Ann. § 517.9 (West) 28. Defendants failed to perform, without justification, the home improvements they agreed to perform. 29. Accordingly, Defendants are in violation of HICPA and Plaintiff is entitled to damages for the losses set forth herein, as well as treble damages, costs and attorney's fees. WHEREFORE, Plaintiff demands judgment for damages against Defendants, in an amount greater than $50,000.00, along with treble damages, attorney's fees, interest and costs of suit. COUNT IV VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 30. The foregoing paragraphs are hereby incorporated herein by reference as if fully set forth herein. 31. By reason of the defects in construction and the failure to remodel/improve the Residence in a good and workmanlike manner as set forth elsewhere in this pleading, the Defendants have violated Sections 201-3 and 201-2(4)(vii) and 201-2(4)(xxi) of the Pennsylvania Unfair Trade Practices and Consumer Protection Act (hereinafter "UTPCPL") by 12 representing that the goods or services were of a particular standard, quality or grade, when there were of another. 32. By reason of the defects in construction and the failure to remodel/improve the Residence in a good and workmanlike manner as set forth elsewhere in this pleading, the Defendants have violated Section 201-3 and 201-2(4)(v) and 201-2(4)(xxi) of the UTPCPL by representing that the goods and services have sponsorship, approval, characteristics, ingredients, uses, benefits or qualities that they do not have. 33. By reason of the defects in construction and the failure to remodel/improve the Residence in a good and workmanlike manner as set forth elsewhere in this pleading, the Defendants have violated Section 201-3 and 201-2(4)(v), 201-2(4)(vii) and 201-2(4)(xxi) of the UTPCPL by representing to Plaintiff that Defendants would supervise and inspect the construction of the Residence, when Defendants failed to supervise and/or inspect any work performed at the Residence. 34. By reason of violating HICPA, as set forth in Count III of this Complaint, Defendants are also in violation of UTPCPL. See Section 517.10 of HICPA. 35. Defendants made the aforementioned representations, which were material to the transaction, falsely or with knowledge of their falsity or reckless disregard for the truth and intended to mislead Plaintiff into relying on said representations. 36. Plaintiff justifiably relied on the aforementioned representations by Defendants. 37. Defendants are further in violation of the above sections by their failure and refusal to cure the defects. 13 38. By reason of the Defendants' violation of the UTPCPL, the Defendants have caused damages to the Plaintiff as stated above, which damages were proximately caused by Plaintiff's reliance upon Defendants' misrepresentations. 39. By reason of the Defendants' violation of the UTPCPL, the Plaintiff is entitled to treble damages sustained by Plaintiff. 40. By reason of the Defendants' violation of the UTPCPL, the Defendants are liable for the Plaintiff's attorney's fees and costs of prosecution. WHEREFORE, Plaintiff demands judgment for damages against Defendants, in an amount greater than $50,000.00, along with treble damages, attorney's fees, interest and costs of suit. COUNT V FRAUD 41. The foregoing paragraphs are hereby incorporated herein by reference as if fully set forth herein. 42. The aforementioned misrepresentations were material to the transaction. 43. Defendants made the aforementioned misrepresentations falsely and with knowledge of their falsity or with reckless disregard for the truth of the matter. 44. Further, Defendants made the aforementioned misrepresentations with the intent of misleading Plaintiff into relying on them, and Plaintiff justifiably relied on said misrepresentations. 45. The above actions of the Defendants constitute fraud. 14 46. By reason of the Defendants' misrepresentations, the Defendants have caused damages to the Plaintiff as stated above, which damages were proximately caused by Plaintiffs reliance upon Defendants' misrepresentations. WHEREFORE, Plaintiff demands judgment for damages against Defendants, in an amount greater than $50,000.00, along with treble damages, attorney's fees, interest and costs of suit. COUNT VI NEGLIGENCE 47. The foregoing paragraphs are hereby incorporated herein by reference as if fully set forth herein. 48. Plaintiff's damages were directly and proximately caused by the negligence, carelessness and recklessness of the Defendants that consisted of Defendants' failure to: (a) Properly complete the tile work in the kitchen; (b) Properly secure the Formica countertop; (c) Properly install trim edge on counter to the right of the stove; (d) Properly fix hole in the plaster created by the removal of the fan in the kitchen. (e) Properly complete brick work on outside of the home. (f) Properly complete fencing and properly construct the fence. (g) Defendants' failure to properly install the rafters of the carport as the building code requires that the rafters be continuous and overlap each other over the bearing 15 points, which these rafters do not; (h) Defendants' failure to properly install the rafters of the carport, as the rafters do not sit flush, resulting in inadequate bearing strength. (i) Defendants' failure to construct the carport with appropriate lateral bracing to resist lateral movement as the structure sways from side to side and front to back; (j) Defendant's failure to properly install the underlayment of the carport roof surface to prevent deterioration of the roof surface and leakage at the roof eaves; (k) Defendants' improper installation of the roof underlayment underneath the drip edge; (1) Defendants' failure to properly size the drip edge to allow water to drain into the gutter system; (m) Defendants' failure to ensure that the gutters were installed flush in order to avoid leaks; (n) Defendants' failure to install adequate post caps on the ten 6x6 wood posts of the carport so that the carport resists lateral movement and uplift; (o) Defendants' failure to properly nail the vinyl soffit and vinyl J -channel to allow for proper expansion and contraction of the vinyl; (p) Defendants' improperly installing aluminum over the wood beams and treated wood posts because the aluminum has reacted with the treated wood causing premature deterioration of the aluminum; (q) Defendants' failure to properly seal the aluminum joints to prevent 16 moisture entry; (r) Defendants' failure to properly lay concrete as it is cracking and flaking; (s) Defendants' failure to install a weather resistant barrier behind the exterior of the new dining room enclosed by Defendants, resulting in moisture infiltration, mold and rot; (t) Defendants' improper application of weather resistant barriers in constructing the new dining room; (u) Defendants' failure to properly and adequately seal and waterproof the new dining room; (v) Defendants' improper construction of the enclosure to the new dining room causing the exterior sheathing and sill plate to rot and grow mold; (w) Defendants' failure to properly caulk or seal the area around the new dining room to prevent water and moisture intrusion; (x) Defendants' failure to prevent moisture, dampness and/or water conditions to develop inside the perimeter wall cavities of the Residence due to its failure to properly construct the dining room; (y) Defendants' failure to prevent high amounts of fungi and/or mold to grow inside the wall cavities; (z) Defendants' failure to prevent water, moisture and dampness from building up in the Residence; 17 (aa) Defendants' failure to test moisture levels upon completion of construction to ensure that those levels were acceptable; (bb) Defendants' use of forms for concrete to construct outer surface of new dining room; (cc) Defendants' failure to properly install the fireplace vent; (dd) Defendants' failure to adequately cap the chimney once the electric insert was installed in the fireplace; (ee) Defendants' failure to complete painting so that cabinets match remaining items in dining room; (ff) Defendants' failure to secure countertop next to fireplace; (gg) Defendants' failure to grout tiles on fireplace; (hh) Defendants' failure to secure steps from kitchen to dining room (ii) Defendants' failure to properly install the weather proof electrical service head, as Defendants installed it in a direction which can allow entry into the electrical main; (jj) Defendants' failure to install the main electrical panel in compliance with the building code as the service disconnect is not installed within 25 feet of the electrical meter; (kk) Defendants' failure to perform those home improvements to the Residence to acceptable standards and in such a way as to not restrict the normal intended use of the Residence; 18 (11) Defendants' failure to meet the standards required of a residential home improvement contractor; (mm) Defendants' failure to properly train, supervise and inspect the workmanship of those individuals and companies performing the work on the Residence; (nn) Defendants' failure to do all things necessary for the proper improvement and remodeling of the Residence; (oo) Defendants' failure to furnish their best skills and judgment in the improvement and remodeling of the home; (pp) Defendants' failure to correct and remedy the problems it created and which Plaintiff is experiencing with the Residence; (qq) Defendants' use of improper or inadequate materials; (rr) Defendants' failure to use proper and adequate materials; and (ss) Defendants' failure to use that degree of care required under the circumstances. 49. As a direct and proximate result of Defendants' negligence, the Plaintiff sustained damages as alleged elsewhere in this pleading. 19 WHEREFORE, Plaintiff demands judgment for damages against Defendants, in an amount greater than. $50,000.00, interest and costs of suit. Date: q(i NESTICO DR .C. Richard B. Dr ill!Attorney I.D. .904 1135 East Chocolate Avenue Suite 300 Hershey, PA 17033 (717) 533-5406 Telephone Attorneys for Plaintiff By: 20 VERIFICATION I, PATRICIA LARSON, verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date: ATRICIA LARSON. (:7•49 19 CERTIFICATE OF SERVICE I, Richard B. Druby, Esquire, of the law firm of Nestico Druby, PC, hereby certify that on the 17th day of September, 2014, a copy of the foregoing document was sent via First Class U.S. Mail, postage paid, to the following: Ernest J. Woolever, Esquire 315 County Line Road Palmyra, PA 17078 717-576-0844 Counsel for Defendants Herb Construction, LLC 200 North 32nd Street Camp Hill, PA 17011 Jason Herb Construction 200 North 32nd Street Camp Hill, PA 17011 Jason Herb 200 North 32nd Street Camp Hill, PA 17011 'chard B. l ruby 22 LG-O`F CE OF THE PROTHONOTARY Lgit1 OCT 17 PM 12: 33 GU pE NNSYLVANIA TYY Ernest J. Woolever, Esquire The Law Offices of Ernest J. Woolever 315 County Line Road Palmyra, PA 17078 717-576-0844 Ernest @wooleverlaw.com Attorney ID # 77082 Attorney for Defendants PATRICIA LARSON : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION HERB CONSTRUCTION, LLC, JASON HERB CONSTRUCTION : and JASON HERB, individually and : d/b/a HERB CONSTRUCTION, : LLC and JASON HERB CONSTRUCTION, Defendants. : NO. 14-2626 ANSWER WITH NEW MATTER AND COUNTERCLAIM Defendants, Herb Construction, LLC, Jason Herb Construction and Jason Herb, individually and d/b/a Herb Construction, LLC and Jason Herb Construction, by and through 1 counsel, Ernest J. Woolever, Esq., hereby files the within Answer to Plaintiff's Complaint together with New Matter and Counterclaim and in support hereof avers as follows: 1. Admitted on infoimation and belief 2. Admitted 3. Denied. No such named business entity exists, and no such business entity exists with a principal place of business at 200 North 32nd Street, Camp Hill, Cumberland County, Pennsylvania. 4. The averment is a legal conclusion to which no responsive pleading is required. To the extent that an answer is required, the averment is admitted in part denied in part. It is admitted that Jason Herb is an adult individual who is the owner of Herb Construction, LLC and does business as Herb Construction, LLC, with the principal place of business of Herb Construction, LLC at 200 North 32nd Street, Camp Hill, Cumberland County, Pennsylvania. It is denied that Jason Herb does business as Jason Herb Construction or individually as Jason Herb. 5. Admitted in Part, Denied in Part. It is admitted that Herb Construction, LLC is engaged in the business of home improvements to residential consumers and Herb Construction, LLC holds itself out to the public as experienced and capable in the field of home improvements. It is denied that Jason Herb individually or d/b/a Herb Construction and Jason Herb Construction are engaged in the business of home improvements to residential consumers and that either entity holds themselves out to the public as experienced and capable in the field of home improvements. b. Admitted in Part, Denied in Part. It is admitted that in the fall of 2012 Plaintiff hired Defendant Herb Construction, LLC to perform home remodeling/home improvement projects at her Residence. It is denied that Plaintiff hired Jason Herb individually or d/b/a Jason Herb 2 Construction to perform home remodeling/home improvement projects at her Residence. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 7. Admitted in Part, Denied in Part. Plaintiff hired Defendant Herb Construction, LLC to repair/replace a single missing tile on Plaintiff's fireplace hearth and to tile a backsplash in the kitchen of Plaintiff's Residence. It is denied that Defendant Herb Construction, LLC was hired to complete the installation of a new fireplace hearth and an electric fireplace insert in the fireplace in the living room of the Residence, the installation of Formica and a microwave in the kitchen, the conversion of a garage to a new dining room , installation of trimwork and painting of the ceiling in the basement of the Residence and the construction of a carport, concrete under the carport, and as part of the patio, and construction of a fence near the carport; all of these items listed immediately above were projects that Plaintiff added to the work Plaintiff hired Defendant Herb Construction, LLC to perform after hiring Defendant Herb Construction, LLC. It is denied that Plaintiff hired Jason Herb individually or d/b/a Jason Herb Construction for any projects at Plaintiff's Residence or elsewhere. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 8. Admitted in Part, Denied in Part. It is admitted that Herb Construction, LLC did not provide Plaintiff with a written contract for most of the work listed by Plaintiff in paragraph 7 of Plaintiff's Complaint as Plaintiff refused to enter into a written contract with Defendant Herb Construction, LLC. It is denied that Defendant Herb Construction, LLC did not provide Plaintiff with a written instrument for the work for the carport and concrete under the carport. 3 Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 9. Admitted in Part, Denied in Part. It is admitted that Defendant Herb Construction, LLC promised to complete the work. It is denied that Defendant Herb Construction, LLC willfully failed to complete any aspects of the work as Plaintiff prevented Defendant Herb Construction, LLC from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (a) Admitted in Part, Denied in Part. It is admitted that the work is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff insisted Defendants move to other projects prior to Defendants completing the work and then Plaintiff denied Defendants access to Plaintiffs property so as to prohibit Defendants from completing the work. (b) Admitted in Part, Denied in Part. It is admitted that the work is not complete although all the Formica countertop is fastened except for a twelve (12) inch piece of countertop next to Plaintiff's stove. It is denied that the Defendants "failed" to complete the work; Plaintiff insisted Defendants move to other projects prior to Defendants completing the work and then Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. (c) Admitted in Part, Denied in Part. It is admitted that the work is not complete; this item is part of the twelve (12) inch piece of countertop noted immediately above. It is denied that the Defendants "failed" to complete the work; Plaintiff insisted Defendants move to other projects prior to Defendants completing the work and then Plaintiff denied Defendants access to Plaintiffs property so as to prohibit Defendants from completing the work. 4 (d) Admitted in Part, Denied in Part. It is admitted that the work is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff insisted Defendants move to other projects prior to Defendants completing the work and then Plaintiff denied Defendants access to Plaintiffs property so as to prohibit Defendants from completing the work. (e) Admitted in Part, Denied in Part. It is admitted that the work is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff insisted Defendants move to other projects prior to Defendants completing the work and then Plaintiff denied Defendants access to Plaintiffs property so as to prohibit Defendants from completing the work. (f) Admitted in Part, Denied in Part. It is admitted that the work is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff insisted Defendants move to other projects prior to Defendants completing the work and then Plaintiff denied Defendants access to Plaintiffs property so as to prohibit Defendants from completing the work. 10. Denied. Defendants performed all work at Plaintiffs Residence in a workmanlike manner. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (a) Denied. Defendants' installation of the rafters of the carport were inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendants' work passed inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (b) Denied. Defendants' installation of the rafters of the carport were inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendants' work passed 5 inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (c) Denied. Defendants' construction of the carport was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendants' work passed inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (d) After reasonable investigation, Defendants lacks sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (e) Denied. Defendants correctly installed the roof underlayment underneath the drip edge. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (f) Denied. Defendants correctly sized the drip edge to allow water to drain into the gutter system. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (g) Denied. Defendants correctly installed the gutters flush to avoid leaks. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (h) Denied. Defendants' construction of the carport was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendants' work passed inspection. 6 Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (i) Denied. Defendants properly nailed the vinyl soffit and vinyl J-Channel to allow for proper expansion and contraction of the vinyl. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (j) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (k) Admitted in Part, Denied in Part. It is admitted that the work is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (1) Denied. Defendants properly laid the concrete. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (m) After reasonable investigation, Defendants lacks sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 7 (n) Denied. Defendants correctly installed weather resistant barriers as appropriate as the new dining room was constructed in the existing garage which is exterior to the Residence and said garage did not show any evidence of prior weather intrusion. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (o) Denied. Defendants correctly sealed and waterproofed the new dining room as was appropriate as the new dining room was constructed in the existing garage which is exterior to the Residence and said garage did not show any evidence of prior water intrusion. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (p) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (q) Denied. Defendants correctly sealed and caulked the area around the new dining room as was appropriate as the new dining room was constructed in the existing garage which is exterior to the Residence and said garage did not show any evidence of prior water or moisture intrusion. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (r) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 8 (s) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (t) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (u) Admitted in Part, Denied in Part. It is admitted that the construction is complete. It is denied that the Defendants "failed" to test for moisture levels upon completion as Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from conducting such testing. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (v) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (w) Denied. The fireplace is an electric unit, and as such, no venting is required. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (x) Admitted in Part, Denied in Part. It is admitted that the chimney was not capped by Defendants. It is denied that the Defendants "failed" to cap the chimney; Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. 9 Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (y) Admitted in Part, Denied in Part. It is admitted that the painting is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff denied Defendants access to Plaintiffs property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (z) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (aa) Admitted in Part, Denied in Part. It is admitted that the grouting is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (bb) Admitted in Part, Denied in Part. It is admitted that the steps are not secure. It is denied that the Defendants "failed" to secure the steps; Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (cc) Denied. Defendants' installation of the weather proof electrical service head was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp 10 Hill to perform inspections to insure compliance with applicable building codes; Defendants' work passed inspection. Additionally, a weather proof electrical service head, by definition is "weather proof". Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (dd) Denied. Defendants' installation of the main electrical panel was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendants' work passed inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (ee) Denied. Defendants performed all home improvements to the Residence to acceptable standards and no restriction of the normal intended use of the Residence has occurred. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (ff) Denied. All the services performed by Defendants at Plaintiff's residence meet or exceeded the standards required of a home improvement contactor. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (gg) Denied. Defendants properly supervised and inspected the workmanship of those individuals or companies that performed work on the Residence that were under Defendants' control. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (hh) Denied. Defendants did all things necessary for the proper improvement and remodeling of the Residence, to the extent that Defendants were provided access to the 11 Residence to perform such work and remodeling. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (ii) Denied. Defendants, at all times, furnished Defendants' best skill and judgment in the improvement and remodeling of the Residence. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (jj) Denied. Defendants were not informed of any problems to the Residence prior to the initiation of this Complaint. Additionally, if any problems do in fact exist, Defendants aver that such problems are the result of Plaintiff denying Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (kk) Denied. All materials used by Defendants were of superior quality to those usually used in the home improvement business. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (11) Denied. All materials used by Defendants were proper and adequate for the services performed. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a ' Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (mm) Denied. The degree of care provided by Defendants far exceeded the degree of care required. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 12 11. After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. WHEREFORE, Defendants request that the Complaint be dismissed, that judgment be entered in Defendants favor and against Plaintiff, Patricia Larson, and that Defendants be awarded costs of this action including reasonable attorney fees and costs, plus such other further relief as this Honorable Court finds just and equitable. COUNT 1— BREACH OF CONTRACT 12. No response necessary. To the extent to which a response is necessary, Defendants incorporate by reference their Answer to Paragraphs 1 through 11 above as though the same were more fully set forth herein at length. 13. Admitted in part denied in that Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 14. Denied. Defendants performed all services in a good and workmanlike manner and Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work agreed to. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 15. Denied. Defendants performed all services in a workmanlike manner and to the best of Defendants' knowledge no defects exist in the construction that would in any way impact the value of Plaintiff's home or result in any incidental or consequential damages. Additionally, any cost associated with completing any unfinished work are the direct result of Plaintiff denying 13 Defendants access to Plaintiffs property so to prohibit Defendants from completing the work agreed to. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 16. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. WHEREFORE, Defendants request that this Complaint and Count I — Breach of Contract be dismissed, that judgment be entered in Defendants favor and against Plaintiff, Patricia Larson, and that Defendants be awarded costs of this action including reasonable attorney fees and costs, plus such other further relief as this Honorable Court finds just and equitable. COUNT II — BREACH OF IMPLIED WARRANTY OF GOOD AND WORKMANLIKE PERFORMANCE 17. No response necessary. To the extent to which a response is necessary, Defendants incorporate by reference their Answer to Paragraphs 12 through 16 above as though the same were more fully set forth herein at length. 18. Admitted in part denied in that Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 19. Denied. As stated above, Defendants performed all work in a good and workmanlike manner and by doing so did not breach of any said warranty. Defendants, Jason Herb 14 Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 20. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 21. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the avelinent is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. WHEREFORE, Defendants request that this Complaint and Count II — Breach of Implied Warranty of Good and Workmanlike Performance be dismissed, that judgment be entered in Defendants favor and against Plaintiff, Patricia Larson, and that Defendants be awarded costs of this action including reasonable attorney fees and costs, plus such other further relief as this Honorable Court finds just and equitable. COUNT III VIOLATION OF THE HOME IMPROVEMENT CONSUMER PROTECTION ACT, 73 P.S. 4517.1, et. seq. 15 22. No response necessary. To the extent to which a response is necessary, Defendants incorporate by reference their Answer to Paragraphs 17 through 21 above as though the same were more fully set forth herein at length. 23. The averment is a legal conclusion to which no responsive pleading is required. 24. The averment is a legal conclusion to which no responsive pleading is required. 25. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. 26, Admitted in Part, Denied in Part. It is admitted that Defendants did not present Plaintiff with a written contact as such, but it is Denied that Defendants "failed" to present Plaintiff with a written contract. At the time Defendants first discussed with Plaintiff the possibility of performing services for Plaintiff, Plaintiff informed Defendants that Plaintiff would not sign any written agreement as Plaintiff did business with a handshake only. Defendants did present Plaintiff with a written estimate for the work to be performed for the carport. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 27. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied in that Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. 28. Denied. Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 16 29. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. WHEREFORE, Defendants request that this Complaint and Count III Violation of the Home Improvement Consumer Protection Act be dismissed, that judgment be entered in Defendants favor and against Plaintiff, Patricia Larson, and that Defendants be awarded costs of this action including reasonable attorney fees and costs, plus such other further relief as this Honorable Court finds just and equitable. COUNT IV VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 30. No response necessary. To the extent to which a response is necessary, Defendants incorporate by reference their Answer to Paragraphs 23 through 29 above as though the same were more fully set forth herein at length. 31. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 32. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb 17 Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 33. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 34. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 35. The averment is a legal conclusion to which no responsive pleading is required. To the extent'an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 36. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 37. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied in that Plaintiff denied Defendant access to Plaintiff's property so as to prohibit Defendant from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 18 38. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 39. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 40. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. WHEREFORE, Defendants request that this Complaint and Count IV Violation of the Unfair Trade Practices and Consumer Protection Law be dismissed, that judgment be entered in Defendants favor and against Plaintiff, Patricia Larson, and that Defendants be awarded costs of this action including reasonable attorney fees and costs, plus such other further relief as this Honorable Court finds just and equitable. COUNT V — FRAUD 41. No response necessary. To the extent to which a response is necessary, Defendants incorporate by reference their Answer to Paragraphs 31 through 40 above as though the same were more fully set forth herein at length. 19 42. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. 43. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 44. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 45. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 46. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. WHEREFORE, Defendants request that this Complaint and Count V Fraud be dismissed, that judgment be entered in Defendants favor and against Plaintiff, Patricia Larson, and that Defendants be awarded costs of this action including reasonable attorney fees and costs, plus such other further relief as this Honorable Court finds just and equitable. 20 COUNT VI — NEGLIGENCE 47. No response necessary. To the extent to which a response is necessary, Defendants incorporate by reference their Answer to Paragraphs 42 through 46 above as though the same were more fully set forth herein at length. 48. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied in that Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (a) Denied, the Plaintiff denied Defendants access to Plaintiffs property so as to prohibit Defendant from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (b) Denied, the Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendant from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (c) Denied, the Plaintiff denied Defendanst access to Plaintiff's property so as to prohibit Defendant from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (d) Denied, the Plaintiff denied Defendants access to Plaintiff s property so as to prohibit Defendant from completing the work. Defendants, Jason Herb Construction, Jason Herb 21 individually, and Jason Herb d/b/a Jason Herb Construction, did not perfoil any services of any type whatsoever for Plaintiff. (e) Denied, the Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendant from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (f) Denied, the Plaintiff denied Defendants access to Plaintiff s property so as to prohibit Defendant from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perfoilu any services of any type whatsoever for Plaintiff. (g) Denied. Defendant's installation of the rafters of the carport were inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendant's work passed inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (h) Denied. Defendant's installation of the rafters of the carport were inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendant's work passed inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (i) Denied. Defendant's construction of the carport was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendant's work passed 22 inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. After reasonable investigation, Defendants lacks sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (k) Denied. Defendants correctly installed the roof underlayment underneath the drip edge. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (1) • Denied. Defendants correctly sized the drip edge to allow water to drain into the gutter system. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. ) Denied. Defendants correctly installed the gutters flush to avoid leaks. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (n) Denied. Defendant's construction of the carport was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendant's work passed inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (o) Denied. Defendants properly nailed the vinyl soffit and vinyl J -Channel to allow for proper expansion and contraction of the vinyl. Defendants, Jason Herb Construction, Jason Herb 23 individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (p) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (q) Admitted in Part, Denied in Part. It is admitted that the work is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff denied Defendants access to Plaintiffs property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (r) Denied. Defendants properly laid the concrete. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (s) After reasonable investigation, Defendants lacks sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (t) Denied. Defendants correctly installed weather resistant barriers as appropriate as the new dining room was constructed in the existing garage which is exterior to the Residence and said garage did not show any evidence of prior weather intrusion. Defendants, Jason Herb 24 Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (u) Denied. Defendants correctly sealed and waterproofed the new dining room as was appropriate as the new dining room was constructed in the existing garage which is exterior to the Residence and said garage did not show any evidence of prior water intrusion. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (v) After reasonable investigation, Defendants lacks sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. ) Denied. Defendants correctly sealed and caulked the area around the new dining room as was appropriate as the new dining room was constructed in the existing garage which is exterior to the Residence and said garage did not show any evidence of prior water or moisture intrusion. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (x) After reasonable investigation, Defendants lack sufficient infoiniation or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 25 (y) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (z) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (an) Admitted in Part, Denied in Part. It is admitted that the construction is complete. It is denied that the Defendants "failed" to test for moisture levels upon completion as Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from conducting such testing. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (bb) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (cc) Denied. The fireplace is an electric unit, and as such, no venting is required. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 26 (dd) Admitted in Part, Denied in Part. It is admitted that the chimney was not capped by Defendants. It is denied that the Defendants "failed" to cap the chimney; Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (ee) Admitted in Part, Denied in Part. It is admitted that the painting is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (ff) After reasonable investigation, Defendants lack sufficient information or knowledge from which to fonii a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (gg) Admitted in Part, Denied in Part. It is admitted that the grouting is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perfor►ii any services of any type whatsoever for Plaintiff. (hh) Admitted in Part, Denied in Part. It is admitted that the steps are not secure. It is denied that the Defendants "failed" to secure the steps; Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason 27 Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (ii) Denied. Defendant's installation of the weather proof electrical service head was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendant's work passed inspection. Additionally, a weather proof electrical service head, by definition is "weather proof". Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (jj) Denied. Defendant's installation of the main electrical panel was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendant's work passed inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (kk) Denied. Defendants performed all home improvements to the Residence to acceptable standards and no restriction of the normal intended use of the Residence has occurred. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (11) Denied. All the services performed by Defendants at Plaintiffs residence meet or exceeded the standards required of a home improvement contactor. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (mm) Denied. Defendants properly supervised and inspected the workmanship of those individuals or companies that performed work on the Residence that were under Defendant's 28 control. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (nn) Denied. Defendants did all things necessary for the proper improvement and remodeling of the Residence, to the extent that Defendants were provided access to the Residence to perform such work and remodeling. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (oo) Denied. Defendants, at all times, furnished Defendants' best skill and judgment in the improvement and remodeling of the Residence. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (pp) Denied. Defendants were not informed of any problems to the Residence prior to the initiation of this Complaint. Additionally, if any problems do in fact exist, Defendants aver that such problems are the result of Plaintiff denying Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (qq) Denied. All materials used by Defendants were of superior quality to those usually used in the home improvement business. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (rr) Denied. All materials used by Defendants were proper and adequate for the services performed. Defendants, Jason Herb Construction, Jason Herb individually, and Jason 29 Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (ss) Denied. The degree of care provided by Defendants far exceeded the degree of care required. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 49. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. WHEREFORE, Defendants request that this Complaint and Count VI Negligence be dismissed, that judgment be entered in Defendants favor and against Plaintiff, Patricia Larson, and that Defendants be awarded costs of this action including reasonable attorney fees and costs, plus such other further relief as this Honorable Court finds just and equitable. NEW MATTER Defendants hereby assert the following New Matter against Plaintiff Patricia Larson: 50. Defendants incorporate by reference their Answer to Paragraph 49 above as though the same were more fully set forth herein at length. 51. Plaintiff has failed to state a claim upon which relief can be granted. 52. The Compliant fails to properly plead a cause of action against Defendants under Pennsylvania law. 53. Jason Herb Construction does not exist as either a corporate entity or as an unincorporated entity. 30 54. Jason Herb Construction LLC does not exist as either a corporate entity or as an unincorporated entity. 55. Herb Construction LLC was the sole entity to provide work and services for Plaintiff and to Plaintiff's Residence and for which Plaintiff's entire Claim contained herein is based. 56. Defendant Herb Construction, LLC offered to enter into a written contact with the Plaintiff for the services provided by Defendant Herb Construction, LLC. 57. Plaintiff refused to enter into a written contact with Defendant Herb Construction, LLC for the provision of services provided by Defendant Herb Construction, LLC. 58. Plaintiff stated that she was "old fashioned" and was not one for written contracts. 59. Plaintiff stated that she believes a person's "word" is their bond. 60. Plaintiff stated that a handshake is a sufficient contract for her. 61. Plaintiff continually moved Defendants from one project to another prior to allowing Defendants to complete the then current project. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 62. Plaintiff refused to provide Defendants with access to Plaintiff's Residence thereby prohibiting Defendants from completing any unfinished work, despite Defendants request to Plaintiff to finish said work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 63. By refusing to allow Defendants access to Plaintiffs residence to complete work, Plaintiff constructively discharged Defendants. Defendants, Jason Herb Construction, Jason 31 Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 64. By constructively discharging Defendants, Plaintiff terminated the agreement thereby relieving Defendants of any obligation to complete any unfinished work. 65. Plaintiff's claims are time barred, in whole or in part, by the applicable statute of limitations. 66. Plaintiff's claims are barred by the defense of consent. 67. Plaintiff's claims are barred by the doctrine of waiver. 68. Plaintiff's claims are barred by the doctrine of unclean hands. 69. Plaintiff's claims are barred by the doctrine of laches. 70. Plaintiff has not suffered any damages as a result of the matters alleged in its Complaint. 71. To the extent that Plaintiff has suffered any damages, which Defendants deny, then said damages are proximately caused by Plaintiffs acts and/or failures to act and are not attributable to Defendants. 72. At all relevant times herein, Defendants complied with all applicable laws, regulations and standards. WHEREFORE, Defendants request that this Complaint be dismissed, that judgment be entered in Defendants favor and against Plaintiff, Patricia Larson, and that Defendants be awarded costs of this action including reasonable attorney fees and costs, plus such other further relief as this Honorable Court finds just and equitable. COUNTERCLAIM COUNT 1— FRAUD 32 HERB CONSTRUCTION LLC v PARTICIA LARSON 73. Paragraphs 1 through 72 above are incorporated herein by reference as though fully set forth at length. 74. Defendant was continually instructed by Plaintiff to begin a new project prior to completing the project Defendant was then working on, leaving multiple projects unfinished by Defendant. 75. Plaintiff instructed Defendant each time that the "new" project was more important than the one Defendant was then working on and that Defendant could return to the unfinished project and "finish it later". 76. Once Plaintiff's carport was complete, Plaintiff denied Defendant access to Plaintiff's property so as to prohibit Defendant from completing the remaining work. 77. Defendant relied on Plaintiff's misrepresentations that Defendant would be allowed to return to unfinished projects to finish said projects in order to move on to new projects. 78. The aforementioned misrepresentations were material to the transaction. 79. Plaintiff made the aforementioned misrepresentations falsely and with knowledge of their falsity or with reckless disregard for the truth of the matter. 80. Plaintiff made the aforementioned misrepresentations with the intent of misleading Defendant into relying on them, and Defendant justifiably relied on said misrepresentations. 81. By reasons of the Plaintiff's misrepresentations, the Plaintiff has caused damages to the Defendant in the form of costs to defend Plaintiff s frivolous Complaint and damage to Defendant's reputation, which damages were proximately caused by Defendant's reliance upon Plaintiff s misrepresentations. 33 82. The above actions of the Plaintiff constitute fraud. WHEREFORE, Defendant demands that judgment be entered against Plaintiff and that Defendant be awarded costs of this action including reasonable attorney's fees and costs, plus such further relief as this Honorable Court finds just and equitable. Date: /0 %/ 7// V 34 Ernest J. Woolever, Esquire The Law Offices of Ernest J. Woolever 315 County Line Road Palmyra, PA 17078 717-576-0844 Ernest a@wooleverlaw.com Attorney ID # 77082 Attorney for Defendants VERIFICATION I, JASON HERB, verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date: /o l7/Zo/�j Jason Herb CERTIFICATE OF SERVICE AND NOW, TO WIT, this 7 day of October, 20 / 1 , I Ernest J. Woolever, Esquire, hereby certify that I have this date served a copy of the foregoing by depositing a copy of same in the United States Mail, First Class, postage prepaid as follows: Nestico Druby, PC Attn: Richard B. Druby, Esquire 1135 East Chocolate Ave., Suite 300 Hershey, PA 17033 Counsel for Plaintiff Respectfully submitted, By: f. Ernest J. .olever, Esquire 315 County Line Road Palmyra, PA 17078 717-576-0844 Ewoolever@comcast.net Attorney ID # 77082 171LED—DIFICE c..,F THE PRO-I-4-10801.AV '614 tiOV 14 .PM 2: 22 CUMBERLAND COUNTY PENNSYLVANIA RICHARD B. DRUBY, ESQUIRE PA Attorney I.D. No. 61904 Nestico Druby, PC 1135 East Chocolate Avenue Suite 300 Hershey, PA 17033 Tel: 717-533-5406 rdruby@hersheypalaw.com Attorney for Plaintiff PATRICIA LARSON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 14-2626 • HERB CONSTRUCTION, LLC, JASON • HERB CONSTRUCTION and JASON HERB, individually and d/b/a HERB CONSTRUCTION, LLC and JASON HERB CONSTRUCTION, : CIVIL ACTION Defendants. : JURY TRIAL DEMANDED PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' NEW MATTER AND COUNTERCLAIM AND NOW, comes Plaintiff, by and through her counsel, and files these Preliminary Objections to Defendants' New Matter and Counterclaim, averring as follows: 1. On September 19, 2014, Plaintiff filed a Complaint against Defendants due to incomplete work and defects and deficiencies in Defendants' work on improvements to Plaintiff's residence. 2. On October 17, 2014, Defendants filed an Answer with New Matter and Counterclaim for fraud against Plaintiff. 3. Defendants' New Matter and Counterclaim seek reasonable attorney's fees. 3 4. However, the New Matter and Counterclaim alleged provide no legal basis for the award of attorney's fees. 5. Additionally, while Defendants' Counterclaim seeks recovery for fraud, Defendants' pleading fails to meet the requirements of Pennsylvania law. PRELIMINARY OBJECTION: DEMURRER AND MOTION TO STRIKE CLAIM FOR ATTORNEY'S FEES 6. The foregoing paragraphs are incorporated herein by reference. 7. The ad damnum clauses in Defendants' Answer, New Matter and Counterclaim seek attorney's fees. 8. There is no basis under the laws of this Commonwealth or under the facts as pleaded that entitles Defendants to attorney's fees for any of the defenses listed in their Answer with New Matter or Counterclaim for fraud. 9. Defendants are not entitled to attorney's fees as a matter of law. 10. Therefore, Plaintiff requests that any and all claims for attorney's fees be dismissed, with prejudice, and references to attorney's fees in the Answer, New Matter and Counterclaim be stricken. WHEREFORE, Plaintiff respectfully requests that this Court grant her preliminary objections and issue an Order striking averments in Defendants' Answer, New Matter and Counterclaim requesting attorney's fees. PRELIMINARY OBJECTION: DEMURRER OR MORE SPECIFIC PLEADING REGARDING COUNTERCLAIM FOR FRAUD 11. The foregoing paragraphs are incorporated herein by reference. 4 12. Pennsylvania Rule of Civil Procedure 1019 (a) specifically requires that: "The material facts on which a cause of action or defense is based shall be stated in a concise and summary form." 13. Furthermore, under subsection (b): "Averments of fraud or mistake shall be averred with particularity." 14. Under Rule 1019(b), at least two conditions must be met to fulfill the requirement of particularity: (1) the pleadings must adequately explain the nature of the claim to the opposing party so as to permit the preparation of a defense, and (2) they must be sufficient to convince the court that the averments are not merely subterfuge. Martin v. Lancaster Battery Co., 530 Pa. 11, 18, 606 A.2d 444, 448 (1992). 15. The purpose of the rules is to enable the adverse party to properly prepare his defense to the moving party's allegations. See Smith v. Wagner, 403 Pa. Super. 316, 588 A.2d 1308 (1991). 16. In the present case, Defendant, Herb Construction, LLC alleges that Plaintiff "continually instructed" it to begin a new project prior to completing the project it was working on, but does not allege when the representations were made and what was specifically said, 17. Additionally, an essential element of an action for fraud is that the party alleging fraud must have suffered damages as a result thereof, there being no cause of action without actual damages. 18. Therefore, the rule also has been stated that it is not a fraud to deprive one of that to which such person has no right. 5 19. Presently, Defendant's Counterclaim seeks damages for "costs to defend" Plaintiff's action and "damage to Defendant's reputation." 20. Defendant, Herb Construction, LLC cannot recover attorney's fees as Pennsylvania law does not permit a recovery of attorney's fees unless by contract or statute, neither of which is implicated in this case. 21. Additionally, Defendant, Herb Construction, LLC has not alleged how its alleged reliance on the Plaintiff's instructing it "to begin a new project prior to completing the project Defendant was then working on" has damaged Defendant's reputation. 22. Therefore, Defendant's counterclaim fails to state a claim upon which relief can be granted and this Court must dismiss Defendant's Counterclaim, with prejudice. 23. In the alternative, Defendant, Herb Construction, LLC should be required to file a more specific pleading so that the Counterclaim is in compliance with the Rules of Civil Procedure and Pennsylvania law. WHEREFORE, Plaintiff respectfully requests that this Court grant her preliminary objections and issue an Order dismissing, with prejudice, Defendant's Counterclaim. In the alternative, Plaintiff requests that the Court order Defendant, Herb Construction, LLC to file a 6 more specific pleading. Date: NESTICO DR By: 7 ichard B. Drub Attorney I.D. 1135 East Cho o ate venue Suite 300 Hershey, PA 17033 (717) 533-5406 Telephone Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Richard B. Druby, Esquire, of the law firm of Nestico Druby, PC, hereby certify that on the 14th day of November, 2014, a copy of the foregoing document was sent via First Class U.S. Mail, postage paid, to the following: Ernest J. Woolever, Esquire 315 County Line Road Palmyra, PA 17078 717-576-0844 Counsel for Defendants chard B. Druby 8 1 Ernest J. Woolever, Esquire The Law Offices of Ernest J. Woolever 315 County Line Road Palmyra, PA 17078 717-576-0844 Ernest @wooleverlaw.com Attorney ID # 77082 Attorney for Defendants PATRICIA LARSON : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION HERB CONSTRUCTION, LLC, : JASON HERB CONSTRUCTION : and JASON HERB, individually and : d/b/a HERB CONSTRUCTION, : LLC and JASON HERB CONSTRUCTION, Defendants. : NO. 14-2626 AMENDED ANSWER WITH NEW MATTER Defendants Herb Construction, LLC, Jason Herb Construction and Jason Herb, individually and d/b/a Herb Construction, LLC and Jason Herb Construction, by and through counsel, Ernest J. Woolever, Esq., hereby file the within Amended Answer to Plaintiff's Complaint together with New Matter, and in support thereof aver as follows: 1 1. Admitted on information and belief 2. Admitted. 3. Denied. No such named business entity exists, and no such business entity exists with a principal place of business at 200 North 32nd Street, Camp Hill, Cumberland County, Pennsylvania. 4. The averment is a legal conclusion to which no responsive pleading is required. To the extent that an answer is required, the averment is admitted in part denied in part. It is admitted that Jason Herb is an adult individual who is the owner of Herb Construction, LLC and does business as Herb Construction, LLC, with the principal place of business of Herb Construction, LLC at 200 North 32nd Street, Camp Hill, Cumberland County, Pennsylvania. It is denied that Jason Herb does business as Jason Herb Construction or individually as Jason Herb. 5. Admitted in Part, Denied in Part. It is admitted that Herb Construction, LLC is engaged in the business of home improvements to residential consumers and Herb Construction, LLC holds itself out to the public as experienced and capable in the field of home improvements. It is denied that Jason Herb individually or d/b/a Herb Construction and Jason Herb Construction are engaged in the business of home improvements to residential consumers and that either entity holds themselves out to the public as experienced and capable in the field of home improvements. 6. Admitted in Part, Denied in Part. It is admitted that in the fall of 2012 Plaintiff hired Defendant Herb Construction, LLC to perform home remodeling/home improvement projects at her Residence. It is denied that Plaintiff hired Jason Herb individually or d/b/a Jason Herb Construction to perform home remodeling/home improvement projects at her Residence. 2 Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 7. Admitted in Part, Denied in Part. Plaintiff hired Defendant Herb Construction, LLC to repair/replace a single missing tile on Plaintiff's fireplace hearth and to tile a backsplash in the kitchen of Plaintiffs Residence. It is denied that Defendant Herb Construction, LLC was hired to complete the installation of a new fireplace hearth and an electric fireplace insert in the fireplace in the living room of the Residence, the installation of Formica and a microwave in the kitchen, the conversion of a garage to a new dining room , installation of trimwork and painting of the ceiling in the basement of the Residence and the construction of a carport, concrete under the carport, and as part of the patio, and construction of a fence near the carport; all of these items listed immediately above were projects that Plaintiff added to the work Plaintiff hired Defendant Herb Construction, LLC to perform after hiring Defendant Herb Construction, LLC. It is denied that Plaintiff hired Jason Herb individually or d/b/a Jason Herb Construction for any projects at Plaintiff's Residence or elsewhere. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 8. Admitted in Part, Denied in Part. It is admitted that Herb Construction, LLC did not provide Plaintiff with a written contract for most of the work listed by Plaintiff in paragraph 7 of Plaintiff's Complaint as Plaintiff refused to enter into a written contract with Defendant Herb Construction, LLC. It is denied that Defendant Herb Construction, LLC did not provide Plaintiff with a written instrument for the work for the carport and concrete under the carport. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 3 9. Admitted in Part, Denied in Part. It is admitted that Defendant Herb Construction, LLC promised to complete the work. It is denied that Defendant Herb Construction, LLC willfully failed to complete any aspects of the work as Plaintiff prevented Defendant Herb Construction, LLC from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (a) Admitted in Part, Denied in Part. It is admitted that the work is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff insisted Defendants move to other projects prior to Defendants completing the work and then Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. (b) Admitted in Part, Denied in Part. It is admitted that the work is not complete although all the Formica countertop is fastened except for a twelve (12) inch piece of countertop next to Plaintiff's stove. It is denied that the Defendants "failed" to complete the work; Plaintiff insisted Defendants move to other projects prior to Defendants completing the work and then Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. (c) Admitted in Part, Denied in Part. It is admitted that the work is not complete; this item is part of the twelve (12) inch piece of countertop noted immediately above. It is denied that the Defendants "failed" to complete the work; Plaintiff insisted Defendants move to other projects prior to Defendants completing the work and then Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. (d) Admitted in Part, Denied in Part. It is admitted that the work is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff insisted Defendants move 4 to other projects prior to Defendants completing the work and then Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. (e) Admitted in Part, Denied in Part. It is admitted that the work is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff insisted Defendants move to other projects prior to Defendants completing the work and then Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. (f) Admitted in Part, Denied in Part. It is admitted that the work is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff insisted Defendants move to other projects prior to Defendants completing the work and then Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. 10. Denied. Defendants performed all work at Plaintiff's Residence in a workmanlike manner. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (a) Denied. Defendants' installation of the rafters of the carport was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendants' work passed inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (b) Denied. Defendants' installation of the rafters of the carport was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendants' work passed inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff 5 (c) Denied. Defendants' construction of the carport was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendants' work passed inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (d) After reasonable investigation, Defendants lacks sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (e) Denied. Defendants correctly installed the roof underlayment underneath the drip edge. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (f) Denied. Defendants correctly sized the drip edge to allow water to drain into the gutter system. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (g) Denied. Defendants correctly installed the gutters flush to avoid leaks. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (h) Denied. Defendants' construction of the carport was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendants' work passed 6 inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (i) Denied. Defendants properly nailed the vinyl soffit and vinyl J -Channel to allow for proper expansion and contraction of the vinyl. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (j) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (k) Admitted in Part, Denied in Part. It is admitted that the work is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (1) Denied. Defendants properly laid the concrete. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (m) After reasonable investigation, Defendants lacks sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason 7 Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (n) Denied. Defendants correctly installed weather resistant barriers as appropriate as the new dining room was constructed in the existing garage which is exterior to the Residence and said garage did not show any evidence of prior weather intrusion. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (o) Denied. Defendants correctly sealed and waterproofed the new dining room as was appropriate as the new dining room was constructed in the existing garage which is exterior to the Residence and said garage did not show any evidence of prior water intrusion. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff (p) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (q) Denied. Defendants correctly sealed and caulked the area around the new dining room as was appropriate as the new dining room was constructed in the existing garage which is exterior to the Residence and said garage did not show any evidence of prior water or moisture intrusion. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 8 (r) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (s) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff (t) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (u) Admitted in Part, Denied in Part. It is admitted that the construction is complete. It is denied that the Defendants "failed" to test for moisture levels upon completion as Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from conducting such testing. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff (v) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said 9 averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (w) Denied. The fireplace is an electric unit, and as such, no venting is required. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (x) Admitted in Part, Denied in Part. It is admitted that the chimney was not capped by Defendants. It is denied that the Defendants "failed" to cap the chimney; Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (y) Admitted in Part, Denied in Part. It is admitted that the painting is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (z) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (aa) Admitted in Part, Denied in Part. It is admitted that the grouting is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff denied 10 Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (bb) Admitted in Part, Denied in Part. It is admitted that the steps are not secure. It is denied that the Defendants "failed" to secure the steps; Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (cc) Denied. Defendants' installation of the weather proof electrical service head was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendants' work passed inspection. Additionally, a weather proof electrical service head, by definition is "weather proof'. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (dd) Denied. Defendants' installation of the main electrical panel was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendants' work passed inspection. Defendants, Jason. Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (ee) Denied. Defendants performed all home improvements to the Residence to acceptable standards and no restriction of the normal intended use of the Residence has occurred. 11 Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (ff) Denied. All the services performed by Defendants at Plaintiff's residence meet or exceeded the standards required of a home improvement contactor. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (gg) Denied. Defendants properly supervised and inspected the workmanship of those individuals or companies that performed work on the Residence that were under Defendants' control. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (hh) Denied. Defendants did all things necessary for the proper improvement and remodeling of the Residence, to the extent that Defendants were provided access to the Residence to perform such work and remodeling. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (ii) Denied. Defendants, at all times, furnished Defendants' best skill and judgment in the improvement and remodeling of the Residence. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (jj) Denied. Defendants were not informed of any problems to the Residence prior to the initiation of this Complaint. Additionally, if any problems do in fact exist, Defendants aver that such problems are the result of Plaintiff denying Defendants access to 12 Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (kk) Denied. All materials used by Defendants were of superior quality to those usually used in the home improvement business. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (11) Denied. All materials used by Defendants were proper and adequate for the services performed. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (mm) Denied. The degree of care provided by Defendants far exceeded the degree of care required. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 11. After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. WHEREFORE, Defendants request that the Complaint be dismissed, that judgment be entered in Defendants favor and against Plaintiff, Patricia Larson, and that Defendants be awarded costs of this action, plus such other further relief as this Honorable Court finds just and equitable. 13 COUNT 1— BREACH OF CONTRACT 12. No response necessary. To the extent to which a response is necessary, Defendants incorporate by reference their Answer to Paragraphs 1 through 11 above as though the same were more fully set forth herein at length. 13. Admitted in part. Denied in that Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 14. Denied. Defendants performed all services in a good and workmanlike manner and Plaintiff denied Defendants access to Plaintiffs property so as to prohibit Defendants from completing the work agreed to. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 15. Denied. Defendants performed all services in a workmanlike manner and to the best of Defendants' knowledge no defects exist in the construction that would in any way impact the value of Plaintiff s home or result in any incidental or consequential damages. Additionally, any cost associated with completing any unfinished work are the direct result of Plaintiff denying Defendants access to Plaintiffs property so to prohibit Defendants from completing the work agreed to. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 16. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 14 WHEREFORE, Defendants request that this Complaint and Count I — Breach of Contract be dismissed, that judgment be entered in Defendants favor and against Plaintiff, Patricia Larson, and that Defendants be awarded costs of this action, plus such other further relief as this Honorable Court finds just and equitable. COUNT II — BREACH OF IMPLIED WARRANTY OF GOOD AND WORKMANLIKE PERFORMANCE 17. No response necessary. To the extent to which a response is necessary, Defendants incorporate by reference their Answer to Paragraphs 12 through 16 above as though the same were more fully set forth herein at length. 18. Admitted in part denied in that Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 19. Denied. As stated above, Defendants performed all work in a good and workmanlike manner and by doing so did not breach of any said warranty. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 20. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff 21. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb 15 Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. WHEREFORE, Defendants request that this Complaint and Count II — Breach of Implied Warranty of Good and Workmanlike Performance be dismissed, that judgment be entered in Defendants favor and against Plaintiff, Patricia Larson, and that Defendants be awarded costs of this action, plus such other further relief as this Honorable Court finds just and equitable. COUNT III VIOLATION OF THE HOME IMPROVEMENT CONSUMER PROTECTION ACT, 73 P.S. 517.1, et. seq. 22. No response necessary. To the extent to which a response is necessary, Defendants incorporate by reference their Answer to Paragraphs 17 through 21 above as though the same were more fully set forth herein at length. 23. The averment is a legal conclusion to which no responsive pleading is required. 24. The averment is a legal conclusion to which no responsive pleading is required. 25. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. 26, Admitted in Part, Denied in Part. It is admitted that Defendants did not present Plaintiff with a written contact as such, but it is Denied that Defendants "failed" to present Plaintiff with a written contract. At the time Defendants first discussed with Plaintiff the possibility of performing services for Plaintiff, Plaintiff informed Defendants that Plaintiff would not sign any written agreement as Plaintiff did business with a handshake only. Defendants did present Plaintiff with a written estimate for the work to be performed for the carport. 16 Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff 27. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied in that Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. 28. Denied. Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 29. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. WHEREFORE, Defendants request that this Complaint and Count III Violation of the Home Improvement Consumer Protection Act be dismissed, that judgment be entered in Defendants favor and against Plaintiff, Patricia Larson, and that Defendants be awarded costs of this action, plus such other further relief as this Honorable Court finds just and equitable. COUNT IV VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 30. No response necessary. To the extent to which a response is necessary, Defendants incorporate by reference their Answer to Paragraphs 23 through 29 above as though the same were more fully set forth herein at length. 17 31. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 32. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 33. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 34. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff 35. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff 36. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb 18 Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 37. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied in that Plaintiff denied Defendant access to Plaintiffs property so as to prohibit Defendant from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 38. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 39. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 40. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. WHEREFORE, Defendants request that this Complaint and Count IV Violation of the Unfair Trade Practices and Consumer Protection Law be dismissed, that judgment be entered in Defendants favor and against Plaintiff, Patricia Larson, and that Defendants be awarded costs of this action, plus such other further relief as this Honorable Court finds just and equitable. 19 COUNT V — FRAUD 41. No response necessary. To the extent to which a response is necessary, Defendants incorporate by reference their Answer to Paragraphs 31 through 40 above as though the same were more fully set forth herein at length. 42. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. 43. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff 44. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff 45. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 46. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb 20 Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. WHEREFORE, Defendants request that this Complaint and Count V Fraud be dismissed, that judgment be entered in Defendants favor and against Plaintiff, Patricia Larson, and that Defendants be awarded costs of this action, plus such other further relief as this Honorable Court finds just and equitable. COUNT VI — NEGLIGENCE 47. No response necessary. To the extent to which a response is necessary, Defendants incorporate by reference their Answer to Paragraphs 42 through 46 above as though the same were more fully set forth herein at length. 48. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied in that Plaintiff denied Defendants access to Plaintiffs property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff (a) Denied, the Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendant from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff (b) Denied, the Plaintiff denied Defendants access to Plaintiffs property so as to prohibit Defendant from completing the work. Defendants, Jason Herb Construction, Jason Herb 21 individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (c) Denied, the Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendant from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (d) Denied, the Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendant from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (e) Denied, the Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendant from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (f) Denied, the Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendant from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (g) Denied. Defendant's installation of the rafters of the carport was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendant's work passed inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 22 (h) Denied. Defendant's installation of the rafters of the carport was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendant's work passed inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (i) Denied. Defendant's construction of the carport was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendant's work passed inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (j) After reasonable investigation, Defendants lacks sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (k) Denied. Defendants correctly installed the roof underlayment underneath the drip edge. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (1) Denied. Defendants correctly sized the drip edge to allow water to drain into the gutter system. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff 23 (m) Denied. Defendants correctly installed the gutters flush to avoid leaks. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (n) Denied. Defendant's construction of the carport was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendant's work passed inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (o) Denied. Defendants properly nailed the vinyl soffit and vinyl J -Channel to allow for proper expansion and contraction of the vinyl. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (P) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (q) Admitted in Part, Denied in Part. It is admitted that the work is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 24 (r) Denied. Defendants properly laid the concrete. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff (s) After reasonable investigation, Defendants lacks sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff (t) Denied. Defendants correctly installed weather resistant barriers as appropriate as the new dining room was constructed in the existing garage which is exterior to the Residence and said garage did not show any evidence of prior weather intrusion. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff (u) Denied. Defendants correctly sealed and waterproofed the new dining room as was appropriate as the new dining room was constructed in the existing garage which is exterior to the Residence and said garage did not show any evidence of prior water intrusion. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff (v) After reasonable investigation, Defendants lacks sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff 25 (w) Denied. Defendants correctly sealed and caulked the area around the new dining room as was appropriate as the new dining room was constructed in the existing garage which is exterior to the Residence and said garage did not show any evidence of prior water or moisture intrusion. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (x) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (y) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (z) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (aa) Admitted in Part, Denied in Part. It is admitted that the construction is complete. It is denied that the Defendants "failed" to test for moisture levels upon completion as Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from conducting 26 such testing. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (bb) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (cc) Denied. The fireplace is an electric unit, and as such, no venting is required. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (dd) Admitted in Part, Denied in Part. It is admitted that the chimney was not capped by Defendants. It is denied that the Defendants "failed" to cap the chimney; Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (ee) Admitted in Part, Denied in Part. It is admitted that the painting is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (ft) After reasonable investigation, Defendants lack sufficient information or knowledge from which to form a belief as to the truth of said averments and, therefore, said averments are denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason 27 Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (gg) Admitted in Part, Denied in Part. It is admitted that the grouting is not complete. It is denied that the Defendants "failed" to complete the work; Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (hh) Admitted in Part, Denied in Part. It is admitted that the steps are not secure. It is denied that the Defendants "failed" to secure the steps; Plaintiff denied Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (ii) Denied. Defendant's installation of the weather proof electrical service head was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendant's work passed inspection. Additionally, a weather proof electrical service head, by definition is "weather proof". Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (jj) Denied. Defendant's installation of the main electrical panel was inspected by Commonwealth Codes Inspection, a company retained by the Borough of Camp Hill to perform inspections to insure compliance with applicable building codes; Defendant's work passed inspection. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 28 (kk) Denied. Defendants performed all home improvements to the Residence to acceptable standards and no restriction of the normal intended use of the Residence has occurred. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (11) Denied. All the services performed by Defendants at Plaintiff's residence meet or exceeded the standards required of a home improvement contactor. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (mm) Denied. Defendants properly supervised and inspected the workmanship of those individuals or companies that performed work on the Residence that were under Defendant's control. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (nn) Denied. Defendants did all things necessary for the proper improvement and remodeling of the Residence, to the extent that Defendants were provided access to the Residence to perform such work and remodeling. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff (oo) Denied. Defendants, at all times, furnished Defendants' best skill and judgment in the improvement and remodeling of the Residence. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (pp) Denied. Defendants were not informed of any problems to the Residence prior to the initiation of this Complaint. Additionally, if any problems do in fact exist, Defendants aver 29 that such problems are the result of Plaintiff denying Defendants access to Plaintiff's property so as to prohibit Defendants from completing the work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (qq) Denied. All materials used by Defendants were of superior quality to those usually used in the home improvement business. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (rr) Denied. All materials used by Defendants were proper and adequate for the services performed. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. (ss) Denied. The degree of care provided by Defendants far exceeded the degree of care required. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 49. The averment is a legal conclusion to which no responsive pleading is required. To the extent an answer is required, the averment is specifically denied. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff WHEREFORE, Defendants request that this Complaint and Count VI Negligence be dismissed, that judgment be entered in Defendants' favor and against Plaintiff, Patricia Larson, and that Defendants be awarded costs of this action plus such other further relief as this Honorable Court finds just and equitable. 30 NEW MATTER Defendants hereby assert the following New Matter against Plaintiff Patricia Larson: 50. Defendants incorporate by reference their Answer to Paragraph 49 above as though the same were more fully set forth herein at length. 51. Plaintiff has failed to state a claim upon which relief can be granted. 52. The Complaint fails to properly plead a cause of action against Defendants under Pennsylvania law. 53. Jason Herb Construction does not exist as either a corporate entity or as an unincorporated entity. 54. Jason Herb Construction LLC does not exist as either a corporate entity or as an unincorporated entity. 55. Herb Construction LLC was the sole entity to provide work and services for Plaintiff and to Plaintiff's Residence and for which Plaintiff's entire Claim contained herein is based. 56. Defendant Herb Construction, LLC offered to enter into a written contact with the Plaintiff for the services provided by Defendant Herb Construction, LLC. 57. Plaintiff refused to enter into a written contact with Defendant Herb Construction, LLC for the provision of services provided by Defendant Herb Construction, LLC. 58. Plaintiff stated that she was "old fashioned" and was not one for written contracts. 59. Plaintiff stated that she believes a person's word is their bond. 60. Plaintiff stated that a handshake is a sufficient contract for her. 31 61. Plaintiff continually moved Defendant Herb Construction, LLC from one project to another prior to allowing Defendant to complete the then current project. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 62. Plaintiff instructed Defendant Herb Construction, LLC each time that the "new" project was more important than the one Defendant was then working on and that Defendant could return to the unfinished project and "finish it later". 63. Once Plaintiff's carport was complete, Plaintiff refused to provide Defendant Herb Construction, LLC with access to Plaintiffs residence, thereby prohibiting Defendant from completing any unfinished work, despite Defendant's request to Plaintiff to finish said work. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 64. Defendant Herb Construction, LLC relied on Plaintiff's statements that Defendant would be allowed to return to unfinished projects to finish said projects in order to move on to new projects. 65. By refusing to allow Defendant Herb Construction, LLC access to Plaintiff s residence to complete work, Plaintiff constructively discharged Defendant. Defendants, Jason Herb Construction, Jason Herb individually, and Jason Herb d/b/a Jason Herb Construction, did not perform any services of any type whatsoever for Plaintiff. 66. By constructively discharging Defendant Herb Construction, LLC, Plaintiff terminated the agreement thereby relieving Defendant of any obligation to complete any unfinished work. 32 67. Defendant Herb Construction, LLC's construction of the carport required a building permit from Camp Hill Borough. 68. Defendant Herb Construction, LLC obtained the required building permit from Camp Hill Borough, Permit # 17-2013. 69. As a condition of the permit, Defendant was required to submit, and have approved, Construction Documents. 70. As a condition of the permit, Defendant was required to ensure that the Constructions Documents, as well as the work performed by Defendant, complied with the Municipal Building Code Camp Hill Borough. 71. As an additional condition of the permit, Defendant was required to ensure that the Construction Documents, as well as the work performed by Defendant, complied with the Pennsylvania Uniform Construction Code (IRC 2009 edition). 72. As a condition of the permit, Defendant was required to have inspections of the "footing", "foundation", "framing" and a "final" inspection upon completion of all work. 73. Defendant submitted and received approval of the required Construction Documents. 74. Defendant, as required by the permit, had a "footing" inspection performed by Commonwealth Code Inspection Services Inc. 75. Commonwealth Code Inspection Services Inc., approved the "footing" inspection. 76. Defendant, as required by the permit, had a "foundation" inspection performed by Commonwealth Code Inspection Services Inc. 77. Commonwealth Code Inspection Services Inc., approved the "foundation" inspection. 33 78. Defendant, as required by the permit, had a "framing" inspection performed by Commonwealth Code Inspection Services Inc. 79. Commonwealth Code Inspection Services Inc., approved the "framing" inspection. 80. Defendant, as required by the permit, had a "final" inspection performed by Commonwealth Code Inspection Services Inc. 81. Commonwealth Code Inspection Services Inc., approved the "final" inspection. 82. Commonwealth Code Inspection Services Inc., is one of several companies approved by Camp Hill Borough to perform the inspections required by Camp Hill Borough's permit process. 83. Plaintiff's claims are time barred, in whole or in part, by the applicable statute of limitations. 84. Plaintiff's claims are barred by the defense of consent. 85. Plaintiffs claims are barred by the doctrine of waiver. 86. Plaintiff's claims are barred by the doctrine of unclean hands. 87. Plaintiff's claims are barred by the doctrine of laches. 88. Plaintiff has not suffered any damages as a result of the matters alleged in its Complaint. 89. To the extent that Plaintiff has suffered any damages, which Defendants deny, then said damages were proximately caused by Plaintiffs acts and/or failures to act and are not attributable to Defendants. 90. At all relevant times herein, Defendants complied with all applicable laws, regulations and standards. 34 WHEREFORE, Defendants request that this Complaint be dismissed, that judgment be entered in Defendants favor and against Plaintiff, Patricia Larson, and that Defendants be awarded costs of this action, plus such other further relief as this Honorable Court finds just and equitable. Date: / 2 I / 35 E J. Woolever, Esquire The Law Offices of Ernest J. Woolever 315 County Line Road Palmyra, PA 17078 717-576-0844 Ernest @wooleverlaw.com Attorney ID # 77082 Attorney for Defendants VERIFICATION I, JASON HERB, verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date: a o lel /54.1'vt.JHerb CERTIFICATE OF SERVICE AND NOW, TO WIT, this 1-/ 7-4 day of December, 201(/ , I Ernest J. Woolever, Esquire, hereby certify that I have this date served a copy of the foregoing by depositing a copy of same in the United States Mail, First Class, postage prepaid as follows: Nestico Druby, PC Attn: Richard B. Druby, Esquire 1135 East Chocolate Ave., Suite 300 Hershey, PA 17033 Counsel for Plaintiff Respectfully submitted, By: Ernest J. W • c ever, Esquire 315 Co ty Line Road Palmyra, PA 17078 717-576-0844 Ewoolever@comcast.net Attorney ID # 77082