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HomeMy WebLinkAbout14-5407 Supreme Cou>r�, f Pennsylvania Court�of�C6inmon Pleas For Prothonotary Use Only: Civil, ver, Docket No: ////,J Cumberland`' County Y .r 534; 7 lv� The information collected on this form is used solelv.for court administration purposes. This form does not supplement or replace the filing and service of)Ieadings or other papers as required by law or rules of court. Commencement of Action: S Q Complaint 0 Writ of Summons 0 Petition Transfer from Another Jurisdiction 0 Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: Richard M. Grove Harold Cassell d/b/a H.D.C. Construction T Dollar Amount Requested: Elwithin arbitration limits I Are money damages requested? S Yes 0 No (check one) Ooutside arbitration limits 0 N Is this a Class Action Suit? 0 Yes El No Is this an MDJAppeal? El Yes El No A Name of Plaintiff/Appellant's Attorney: Christopher E. Rice, Esquire 0 Check Isere if you have no attorney(are a Self-Represented (Pro Sel Litigant) Nature of the Case: Place an "X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT(do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS 0 Intentional 0 Buyer Plaintiff Administrative Agencies 0 Malicious Prosecution El Debt Collection: Credit Card 0 Board of Assessment 10 Motor Vehicle 0 Debt Collection: Other 0 Board of Elections 0 Nuisance 0 Dept.of Transportation 0 Premises Liability 0 Statutory Appeal: Other S 0 Product Liability (does not include 0Employment Dispute: E mass tort) 0 Slander/Libel/Defamation Discrimination C Elland l Employment Dispute: Other 0 Zoning Board OtherTEl Other: I (L7 Other: O MASS TORT 5#^Arn e, & CPhf r7 41*5) 0 Asbestos dwfngft 6V N Tobacco Toxic Tort-DES 0 Toxic Tort- Implant REAL PROPERTY MISCELLANEOUS 0 Toxic Waste El Ejectment 0 Common Law/Statutory Arbitration B 0 Other: 1:: Eminent Domain/Condemnation 0 Declaratory Judgment 0 Ground Rent Mandamus 0 Landlord/Tenant Dispute Non-Domestic Relations 0 Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY Mortgage Foreclosure: Commercial 0 Quo Warranto 0 Dental Partition 0- Replevin 0 Legal 0 Quiet Title Other: 0'Medical Other: 0 Other Professional: Updated 1/1/2011 _ S I "J Christopher E. Rice, Esquire 1-1 I.D. No. 90916 j t� SEP ! Aaron S. Haynes, Esquire f; :"13 Eu I.D. No. 307746 �� CRLt^;P4'D MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER ' ENNS YLVA NId MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Richard M. Grove and Mary E. Grove RICHARD M. GROVE and MARY E. : IN THE COURT OF COMMON PLEAS GROVE, HUSBAND AND WIFE, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2014 -5VO7 CIVIL TERM HAROLD CASSELL d/b/a H.D.C. CONSTRUCTION, Defendant 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 (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 / lS: - � l 7rP cx;�-;U72z �� 3//00,.3 Christopher E. Rice, Esquire I.D. No. 90916 Aaron S. Haynes, Esquire I.D.No. 307746 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Richard M. Grove and Mary E. Grove RICHARD M. GROVE and MARY E. : IN THE COURT OF COMMON PLEAS GROVE, HUSBAND AND WIFE, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2014 - CIVIL TERM HAROLD CASSELL d/b/a H.D.C. CONSTRUCTION, Defendant COMPLAINT AND NOW comes Plaintiffs, Richard M. Grove and Mary E. Grove, by and through their attorneys, MARTSON LAW OFFICES, and hereby avers the following: 1. Plaintiffs, Richard M. Grove and Mary E. Grove, husband and wife (hereinafter "Plaintiffs"), are adult individuals whose place of residence is 14 Woodcress Drive, Carlisle, Pennsylvania, 17015. 2. Defendant, Harold Cassell, is a sole proprietor who does business as HDC Construction, (hereinafter "Defendant") and is a contractor registered under the Home Improvement Consumer Protection Act with the Pennsylvania Attorney General's Office, Home Improvement Consumer Number 048488, located at 7 Hilltop Lane, Newville, Pennsylvania 17241. 3. Plaintiffs own the property located at 41 West Main Street, Plainfield, Pennsylvania 17015 (hereinafter"Property"). 4. On February 10, 2014, Plaintiffs entered into a contract with Defendant to build an addition on the Property described above (hereinafter the "Contract"), respectively. A true and correct copy of the Contract is attached hereto as Exhibit"A". 5. Defendant began work on the Property on February 17, 2014, with the expectation that the addition would be completed within two (2) months or less. 6. Plaintiffs were provided the Contract from Defendant outlining the work that needed to be completed on the Property. 7. The Contract included the job detail that needed to be completed, and the total cost of the job, which was $19,500.00. 8. To date, Plaintiffs have paid over $14,500.00 for the addition on the Property. 9. Defendant, however, has not adequately performed under the Contract. 10. Defendant's construction and installations were faulty, improper, in violation of local and state building codes, and have caused or created damage to the Property. 11. The damages to the Property include, but are not limited to: a. materials used were not materials agreed upon in Contract; b. lack of proper materials used in construction that were required by code; C. uneven walls; d. warped and damaged particle board; e. improper installation of roofing; f. walls left exposed to elements which led to damage to the addition and existing house; g. damage to existing house; and h. multiple violations of municipal and building codes in construction of the addition. 12. Plaintiffs have notified Defendant of all issues with the addition on the Property. 13. Defendant has refused to make corrections and repairs. 14. Defendant has failed to appear on scheduled work days, and has effectively abandoned the job. 15. Plaintiffs have or will be forced to demolish the work performed by the Defendant due to lack of proper inspection, faulty construction, and improper materials used. COUNT I - BREACH OF CONTRACT 16. Paragraphs 1 through 15 are incorporated herein by reference as if fully set forth herein. 17. Plaintiffs entered into a Contract with Defendant to build an addition to the Property owned by Plaintiffs. 18. Defendant has not completed the work outlined in the Contract provided to Plaintiffs. 19. Work that has been performed is inadequate, and in violation of municipal and building codes with several aspects of the addition incomplete, damaged, or not crafted to the specifications agreed to in the Contract. WHEREFORE, Plaintiffs demand judgment against Defendant for their breach of contract, in the amount not in excess of the compulsory arbitration limits in Cumberland County, which includes damages, fees and costs. COUNT II—UNJUST ENRICHMENT 20. Paragraphs 1 through 19 are incorporated herein by reference as if fully set forth herein. 21. In the alternative to Count I, Plaintiffs alleges Defendant has been unjustly enriched. 22. Plaintiffs conferred upon Defendant compensation for the addition to the Property. 23. Defendant accepted payment from Plaintiffs. 24. Defendant failed to provide the services and materials that were equivalent to the payment by Plaintiffs, and Defendant accepted monies from Plaintiffs without providing the materials and services that were due. 25. Defendant received payment that was greater than the work performed. WHEREFORE Plaintiffs demand judgment against Defendant for unjust enrichment in the amount not in excess of the compulsory arbitration limits in Cumberland County, which includes damages, fees and costs. COUNT III—VIOLATIONS OF THE HOME IMPROVEMENT CONSUMER PROTECTION ACT 26. Paragraphs 1 through 25 are incorporated herein by reference as if fully set forth herein. 27. Defendant is a "contractor" pursuant to the Home Improvement Consumer Protection Act ("HICPA"), and therefore subject to HICPA as a person who owns and operates a home improvement business of who undertakes, offers to undertake or agrees to perform any home improvement according to HICPA. 28. Plaintiffs are "owners" pursuant to HICPA as they are the owners of a private residence and persons entitled to performance of the work of a contractor pursuant to a home improvement contract. 29. Pursuant to 73 P.S. §517.7(a) Home Improvement contracts — Requirements, no improvement contract shall be valid or enforceable against an owner unless it, inter alia: a. Contains the entire agreement between the owner and the contractor, including attached copies of all required notices (73 P.S. §517.7(a)(3)); b. Contains the approximate starting date and completion date (73 P.S. §517.7(a)(6)); C. Contains an indication that contractor agrees to maintain liability insurance covering personal injury in an amount not less than $50,000.00 and insurance covering property damage caused by the work of a home improvement contractor in an amount not less than $50,000.00 and identifies the current amount of insurance coverage maintained at the time of the signing of the contract (73 P.S. §517.7(a)(11); and d. Contains a notice of the right of rescission (73 P.S. §517.7(b)). 30. Defendant violated HICPA by: a. not containing the entire agreement between the owner and the contractor in violation of 73 P.S. §517.7(a)(3); b. Defendant did not attach copies of all required notices to the Contract in violation of 73 P.S. §517.7(a)(3); C. The Contract did not contain the approximate starting date and completion date of the addition in violation of 73 P.S. §517.7(a)(6); d. The Contract did not contain an indication that Defendant agreed to maintain liability insurance covering personal injury in an amount not less than $50,000.00 and insurance covering property damage caused by the work of a home improvement contractor in an amount not les than $50,000.00, and the Contract did not identify the current amount of insurance maintained at the time of signing the Contract in violation of 73 P.S. §517.7(a)(11); and e. The Contract did not contain a notice of the right of rescission in violation of 73 P.S. §517.7(b). 31. HICPA further prohibits a contractor to "abandon or fail to perform, without justification, any home improvement contract or project engaged in or undertaken by a contractor." 73 P.S. §517.9(5). 32. Defendant failed to perform under the Contract entered into with Plaintiffs by failing to make all necessary repairs or complete all unfinished work on the Property. WHEREFORE Plaintiffs demand judgment against Defendant for violations under the Home Improvement Consumer Protection Act in the amount not in excess of the compulsory arbitration limits in Cumberland County, together with legal fees, associated costs of suit, punitive damages, as well as compensation for payments Plaintiffs have made to a third-party contractor to complete the addition on the Property. COUNT IV—VIOLATIONS OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 33. Paragraphs 1 through 32 are incorporated herein by reference as if fully set forth herein. 34. Pursuant to HICPA 73 P.S. §517.10, a violation of any of the provisions of HICPA shall be deemed a violation of the Unfair Trade Practices and Consumer Protection Law ("UTPCPL"). 35. The UTPCPL provides a right of private action for anyone who "suffers any ascertainable loss of money or property as a result of an unlawful method, act or practice. 73 P.S. §201-9.2(a). 36. 73 P.S. §201-2(4) lists twenty enumerated practices, which constitute actionable "unfair methods of competition" or "unfair or deceptive acts, or practices." 73 P.S. § 201- 2(4)(i)—(xx). 37. 73 P.S. §201-2(4)(xvi) delineates those persons "making repairs, improvements or replacements on tangible, real or personal property, of a nature or quality inferior to or below the standard of that agreed to in writing" are in violation of the UTPCPL. 38. Defendant used improper materials during the construction of the addition on the Property, and represented their work was of the quality set forth in the Contract. 39. Defendant's construction of the addition was below the standard agreed upon in the Contract signed by Plaintiffs and Defendant. 40. Upon a finding of liability, the court has the discretion to award "up to three times the actual damages sustained" and provide any additional relief the court deems proper. 73 P.S. § 201-9.2(a). WHEREFORE Plaintiffs, demand judgment against Defendant for violations under the UTPCPL for treble damages in the amount not in excess of the arbitration limits of Cumberland County, together with legal fees, associated costs of suit, punitive damages, as well as compensation for payments Plaintiffs have made to a third-party contractor to complete the addition on the Property. COUNT V—BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS 41. Paragraphs 1 through 40 are incorporated herein by reference as if fully set forth herein. 42. As aforesaid, Plaintiffs entered into the Contract with Defendant to perform a complete addition on the Property. 43. At the time of entering into the Contract, Defendant was in the business of home remodeling and made various implied warranties as to the final product, i.e. the addition. Defendant was aware of the addition's intended and ordinary use and Plaintiffs were justified in expecting a minimum level of quality, workmanship, and completeness of the construction of the addition, free of defects. a 44. Plaintiffs relied upon the skill and judgment of the Defendant in entering into the Contract. 45. Defendant breached his implied duty of merchantability and fitness because Defendant's construction and installations were faulty, improper, in violation of municipal and building codes, and have caused or created damage to the Property. 46. Plaintiffs gave reasonable and adequate notice to Defendant of the aforesaid breach of warranty, but Defendant failed to cure the numerous issues, and effectively abandoned the j ob. 47. As a direct and proximate result of Defendant's breach of warranty, Plaintiff's sustained damages to the existing property. WHEREFORE, Plaintiffs demand judgment against Defendant for their breach of implied warranty of merchantability and fitness in the amount not in excess of the compulsory arbitration limits in Cumberland County, as well as compensation for payments Plaintiffs have made to a third-party contractor to complete the addition on the Property. MARTSON LAW OFFICES By: Christopher E. Rice, Esquire I.D. No. 90916 Aaron S. Haynes, Esquire I.D. No. 307746 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Date: Attorneys for Plaintiffs EXHIBIT "A" r: .~ii � `:.ye Gar FC3.-�' a 3 a.�% a� 5� L�,✓ :a.. � t t:...�` �" PA048488 717-776-6599 HAROLD CASSELL February 17, 2014 717-226-5310 7 HILLTOP LANE INVOICE#40555 NEWVILLE, PA. 17241 KARA RADLE 41 WEST MAIN ST. CARLISLE, PA 17015 717-440-4592 ADDITION Remove roof on 1s`floor. Install 2x10 floor joists Install % "tongue and groove plywood with 2 ft. overhang. Walls to be 2x6 framed out for 5 windows. Remove existing rear house roof. Frame new roof from existing, peak over bedroom with 1 ft. overhang. Walls to be built at peak of existing house roof. Beam to be built halfway down to outside walls. Outside walls insulated with R-19. Ceilings insulated with R-38. Outside walls to be wrapped with tyvek. Siding to be removed from existing house and installed on new bedrooms. Install the home owner siding on side walls. ELECTRIC 1-Receptacle to be placed on each wall. Light switch install at bedroom doorway. Wire for ceiling lights. Install electric for washer&dryer upstairs. Water and drain lines installed for washer upstairs. Install washer drain for under washer pan. Install fluorescent light in laundry room on switch. Install 5ft. bi-fold doors in front of washer& dryer. Install light in closet in walk in closet. DRYWALL New drywall to be installed in new addition. All drywall to be taped, mudded, and sanded. Walls to be painted with primer. TRIM Trim to installed on interior windows, doorways,closet&laundry room. Base board to be installed. ROOF FOR ADDITION 2x6 rafters. 7/16 OSB plywood. OSB plywood installed on ceiling joist for storage. New metal to be installed on addition. EXISTING ROOF New metal roof installed on existing roof. Soffit installed on addition to match existing house. TOTAL$19,500.00 Homeowner responsible for all permits required. Homeowner responsible for lighting fixtures. 02-17-2014 KARA RADLE HAROLD CASSELL r VERIFICATION The foregoing Complaint is based upon information which has been gathered by our counsel in the preparation of the lawsuit. The language of the document is that of counsel and not our own. We have read the document and to the extent that it is based upon information which we have given to counsel, it is true and correct to the best of our knowledge, information and belief. To the extent that the content of the document is that of counsel, we have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if we make knowingly false averments, we may be subject to criminal penalties. ichard M. Grove Mary E. Gr e Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY i• :T.1b-Urr POlt-inG 7r,Ti OCT I P1 233 CUMBERLAND COUNTY PENNSYLVANIA' 1,r ,t Cit Mho, r4.04. Cr,CCE FTVE VERIFF Richard M Grove vs. Harold Cassell Case Number 2014-5407 SHERIFF'S RETURN OF SERVICE 09/22/2014 07:02 PM - Deputy Shawn Gutshall, being duly sworn according to law, served the requested Complaint & Notice by handing a true copy to a person representing themselves to be Tracy Nickel, Wife, who accepted as "Adult Person in Charge" for Harold Cassell at 7 Hilltop Lane, West Pennsboro, Newville, PA 17241. SHERIFF COST: $42.05 SO ANSWERS, September 23, 2014 (C) CountySuitc., Sheriff, Teleosoft, RONTY R ANDERSON, SHERIFF John J. Mangan, Esquire BAYLEY & MANGAN 17 West South Street Carlisle, PA 17013 (717) 241-2446 Attorney for Defendant iLED-OF JC OF THE PROTHONOTARY 2Q14 OCT 23 AM 6: T I CUMBERLAND COUNTY PENNSYLVANIA RICHARD M. GROVE and MARY E. : IN THE COURT OF COMMON PLEAS GROVE, Husband and Wife : OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, vs. HAROLD CASSELL d/b/a H.D.C. CONSTRUCTION Defendant. : CIVIL ACTION - LAW : NO. 14-5407 CIVIL TERM NOTICE TO PLEAD TO: Richard and Mary Grove do Christopher Rice, Esquire 10 East High St. Carlisle, PA 17013 You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from service hereof or a default judgment may be filed against you. Date: J BAYLEY & MANGAN Joh gan, Esquire 17 es outh Street Carlisle, PA 17013 (717) 241-2446 Supreme Court I.D.# 87000 John J. Mangan, Esquire BAYLEY & MANGAN 17 West South Street Carlisle, PA 17013 (717) 241-2446 Attorney for Defendant RICHARD M. GROVE and MARY E. : IN THE COURT OF COMMON PLEAS GROVE, Husband and Wife : OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, vs. HAROLD CASSELL d/b/a H.D.C. CONSTRUCTION Defendant. : CIVIL ACTION - LAW : NO. 14-5407 CIVIL TERM PRELIMINARY OBJECTION OF DEFENDANT TO PLAINTIFF'S COMPLAINT PURSUANT TO Pa.R.C.P. 1028(a)(2) and (a)(5) AND NOW, comes Harold Cassell d/b/a H.D.C. Construction ("Defendant")by and through his attorney, John J. Mangan, and in support of the within preliminary objection avers as follows: 1. Plaintiffs, Richard and Mary Grove, ("Plaintiffs"), filed their Complaint in this action on September 11, 2014. 2. Plaintiffs' Complaint sets forth actions for "breach of contract," "unjust enrichment", "violations of the home improvement consumer protection act", "violations of the unfair trade practices and consumer protection law" and "breach of implied warranty of merchantability and fitness". 3. The aforesaid Defendant objects to the complaint of the Plaintiffs pursuant to Pa.R.C.P. 1028 (a)(2) due to the Plaintiffs failure to conform to law or rule of court. Plaintiffs alleged in their complaint that they entered into a contract with the Defendant. They did not enter into a complaint with the Defendant, as such cannot claim breach of contract. Even though Plaintiffs included with their complaint "Exhibit A" which purports to be the subject contract, "Exhibit A" is not fully executed as only the Defendant signed the contract. Attached hereto is Defendant's "Exhibit 1" which is fully executed... not by the Plaintiffs, but by an individual named Kara Radle, whom is not even mentioned in the complaint and not a party to this action. Plaintiffs have no standing to have filed this complaint. 4. The aforesaid Defendant objects to the complaint of the Plaintiffs pursuant to Pa.R.C.P. 1028 (a)(5) due to the plaintiff lacking capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action. Plaintiffs alleged in their complaint that they entered into a contract with the Defendant. They did not enter into a complaint with the Defendant, as such cannot claim breach of contract. Even though Plaintiffs included with their complaint "Exhibit A" which purports to be the subject contract, "Exhibit A" is not fully executed as only the Defendant signed the contract. Attached hereto is Defendant's "Exhibit 1" which is fully executed... not by the Plaintiffs, but by an individual named Kara Radle, whom is not even mentioned in the complaint and not a party to this action. Plaintiffs have no standing to have filed this complaint. 5. Plaintiffs' complaint should therefore be dismissed pursuant to Pa.R.C.P. 1028(a)(2) and (5). WHEREFORE, the Defendant respectfully requests that Plaintiffs Complaint be dismissed. Respectfully submitted, BAYLEY & MANGAN John M. gan, Esquire 17 ' est : outh Street Car isle, PA 17013 (717) 241-2446 johnmangan@bayleymangan.com Supreme Court I.D.# 87000 ALL-STATE LEGAL® l HOC CONSTRUCTION PA048488 717-776-6599 HAROLD CASSELL February 17, 2014 717-226-5310 7 HILLTOP LANE INVOICE # 40555 NEWVILLE, PA. 17241 KARA RADLE 41 WEST MAIN ST. CARLISLE, PA 17015 717-440-4592 ADDITION Remove roof on 15` floor. Install 2x10 floor joists Install 3 "tongue and groove plywood with 2 ft. overhang. Walls to be 2x6 framed out for 5 windows. Remove existing rear house roof. Frame new roof from existing, peak over bedroom with 1 ft. overhang. Walls to be built at peak of existing house roof. Beam to be built halfway down to outside walls. Outside walls insulated with R-19. Ceilings insulated with R-38. Outside walls to be wrapped with tyvek. Siding to be removed from existing house and installed on new bedrooms. Install the home owner siding on side walls. ELECTRIC 1 -Receptacle to be placed on each wall. Light switch install at bedroom doorway. Wire for ceiling lights. Install electric for washer & dryer upstairs. Water and drain lines installed for washer upstairs. Install washer drain for under washer pan. Install fluorescent light in laundry room on switch. Install Sft. bi-fold doors in front of washer & dryer. Install light in closet in walk in closet. EXHIBIT DRYWALL New drywall to be installed in new addition. All drywall to be taped, mudded, and sanded. Walls to be painted with primer. TRIM Trim to installed on interior windows, doorways, closet & laundry room, Base board to be installed. ROOF FOR ADDITION 2x6 rafters. 7/16 OSB plywood. OSB plywood installed on ceiling joist for storage. New metal to be installed on addition. EXISTING ROOF New metal roof installed on existing roof. Soffit installed on addition to match existing house. TOTAL $19,500.00 Homeowner responsible for all permits required. Homeowner responsible for lighting fixtures. r7 r i,,s t. �� 02-17-20 KARA RADLE HAROLD CASSELL AFFIDAVIT I hereby swear or affirm that the foregoing is true and correct to the best of my knowledge and/or information and belief. This is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. John . Man an, squire 17 est S th Street Carlisle, A 17013 (717) 241-2446 Supreme Court I.D. #87000 Date: October 22, 2014 4 RICHARD M. GROVE and MARY E. : IN THE COURT OF COMMON PLEAS GROVE, Husband and Wife : OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, vs. HAROLD CASSELL d/b/a H.D.C. CONSTRUCTION Defendant. : CIVIL ACTION - LAW : NO. 14-5407 CIVIL TERM CERTIFICATE OF SERVICE I, John Mangan, Esquire, do hereby certify that I this day served a copy of the foregoing document upon the following by First Class Mail and/or personal delivery on the below date: Christopher Rice, Esquire 10 East High St. Carlisle, PA 17013 John , Esquire RICHARD M. GROVE and MARY E. GROVE, Husband and Wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 14-5407 CIVIL TERM HAROLD CASSELL d/b/a H.D.C. CONSTRUCTION, Defendants CIVIL ACTION - LAW ENTRY OF APPEARANCE ra - (f) C7) TO THE PROTHONOTARY: c) Kindly enter my appearance on behalf of the Defendants, Harold Cassell d/b/a HL Construction, in the above captioned action. Date: CD --t 7.17 fl , E QUIRE ey I.D. No. 47243 ey for Defendant, AROLD CASSELL d/b/a HDC CONSTRUCTION 3510 Trindle Road Camp Hill, PA 17011 (717) 975-8114 Direct: (717) 760-7502 Fax: (717) 975-8124 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the aq day of October, 2014, and addressed as follows: Christopher E. Rice, Esquire Martson, Deardorff, Williams, Otto, Gilroy & Faller Martson Law Offices 10 East High Street Carlisle, PA 17013 Attorney for Plaintiff MARGOLIS EDELSTEIN Christopher E. Rice, Esquire I.D. No. 90916 Aaron S. Haynes, Esquire I.D. No. 307746 r ,LE:3-CF FICE- C F. THE. PROTHCHO TAR Y LU3tii i3OV 17 PM 12. 23 OF PLAND COUNTY PENNSYLVANIA MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Richard M. Grove, Mary E. Grove and Kara Radle RICHARD M. GROVE and MARY E. GROVE, HUSBAND AND WIFE, and KARA RADLE, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. : NO. 2014 - 5407 CIVIL TERM HAROLD CASSELL d/b/a H.D.C. CONSTRUCTION, Defendant 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 (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by, the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 Christopher E. Rice, Esquire I.D. No. 90916 Aaron S. Haynes, Esquire I.D. No. 307746 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Richard M. Grove, Mary E. Grove, and Kara Radle RICHARD M. GROVE and MARY E. GROVE, HUSBAND AND WIFE, and KARA RADLE, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. : NO. 2014 - 5407 CIVIL TERM HAROLD CASSELL d/b/a H.D.C. CONSTRUCTION, Defendant AMENDED COMPLAINT AND NOW comes Plaintiffs, Richard M. Grove, Mary E. Grove, and Kara Radle, by and through their attorneys, MARTSON LAW OFFICES, and hereby avers the following: 1. Plaintiffs, Richard M. Grove and Mary E. Grove, husband and wife (hereinafter "Plaintiffs Grove"), are adult individuals whose place of residence is 14 Woodcress Drive, Carlisle, Pennsylvania, 17015. 2. Plaintiff Kara Radle ("Plaintiff Radle") is an adult individual and the fee simple owner of 41 West Main Street, Plainfield, Pennsylvania 17015 (hereinafter "Property"). 3. Defendant, Harold Cassell, is a sole proprietor who does business as HDC Construction, (hereinafter "Defendant") and is a contractor registered under the Home Improvement Consumer Protection Act with the Pennsylvania Attorney General's Office, Home Improvement Consumer Number 048488, located at 7 Hilltop Lane, Newville, Pennsylvania 17241. 4. Plaintiffs Grove were the fee simple owners of the Property at all relevant times, and were in the process of renovating the Property for the use of and transfer to Plaintiff Radle. 5. Plaintiffs Grove have authorized the renovations to proceed, and are responsible for the funding of the renovations. 6. Plaintiff Radle has been granted authority to act as an agent for Plaintiffs Grove, which includes signing relevant documentation for the authorization of the renovations. 7. On February 17, 2014, Plaintiffs Grove, by way of Plaintiff Radle's signature, entered into a contract with Defendant to build an addition on the Property described above (hereinafter the "Contract"), respectively. A true and correct copy of the Contract is attached hereto as Exhibit "A". 8. Plaintiff Radle executed the Contract as the authorized agent of Plaintiffs Gove, and on behalf of herself. (Plaintiffs Grove and Plaintiff Radle hereinafter shall be referred to as "Plaintiffs"). 9. Defendant began work on the Property on February 17, 2014, with the expectation that the addition would be completed within two (2) months or less. 10. Plaintiffs were provided the Contract from Defendant outlining the work that needed to be completed on the Property. 11. The Contract included the job detail that needed to be completed, and the total cost of the job, which was $19,500.00. 12. To date, Plaintiffs have paid over $1.4,500.00 for the addition on the Property. 13. Defendant, however, has not adequately performed under the Contract. 14. Defendant's construction and installations were faulty, improper, in violation of local and state building codes, and have caused or created damage to the Property. 15. The damages to the Property include, but are not limited to: a. materials used were not materials agreed upon in Contract; b. lack of proper materials used in construction that were required by code; c. uneven walls; d. warped and damaged particle board; e. improper installation of roofing; f. walls left exposed to elements which led to damage to the addition and existing house; g. damage to existing house; and h. multiple violations of municipal and building codes in construction of the addition. 16. Plaintiffs have notified Defendant of all issues with the addition on the Property. 17. Defendant has refused to make corrections and repairs. 18. Defendant has failed to appear on scheduled work days, and has effectively abandoned the job. 19. Plaintiffs have or will be forced to demolish the work performed by the Defendant due to lack of proper inspection, faulty construction, and improper materials used. COUNT I - BREACH OF CONTRACT 20. Paragraphs 1 through 19 are incorporated herein by reference as if fully set forth herein. 21. Plaintiffs entered into a Contract with Defendant to build an addition to the Property owned by Plaintiffs. 22. Defendant has not completed the work outlined in the Contract provided to Plaintiffs. ( 23. Work that has been performed is inadequate, and in violation of municipal and building codes with several aspects of the addition incomplete, damaged, or not crafted to the specifications agreed to in the Contract. WHEREFORE, Plaintiffs demand judgment against Defendant for their breach of contract, in the amount not in excess of the compulsory arbitration limits in Cumberland County, which includes damages, fees and costs. COUNT II — UNJUST ENRICHMENT 24. Paragraphs 1 through 23 are incorporated herein by reference as if fully set forth herein. 25. In the alternative to Count I, Plaintiffs allege Defendant has been unjustly enriched. 26. Plaintiffs conferred upon Defendant compensation for the addition to the Property. 27. Defendant accepted payment from Plaintiffs. 28. Defendant failed to provide the services and materials that were equivalent to the payment by Plaintiffs, and Defendant accepted monies from Plaintiffs without providing the materials and services that were due. 29. Defendant received payment that was greater than the work performed. WHEREFORE Plaintiffs demand judgment against Defendant for unjust enrichment in the amount not in excess of the compulsory arbitration limits in Cumberland County, which includes damages, fees and costs. COUNT III — VIOLATIONS OF THE HOME IMPROVEMENT CONSUMER PROTECTION ACT 30. Paragraphs 1 through 29 are incorporated herein by reference as if fully set forth herein. 31. Defendant is a "contractor" pursuant to the Home Improvement Consumer Protection Act ("HICPA"), and therefore subject to HICPA as a person who owns and operates a home improvement business of who undertakes, offers to undertake or agrees to performany home improvement according to HICPA. 32. Plaintiffs are "owners" pursuant to HICPA as they are the owners of a private residence and persons entitled to performance of the work of a contractor pursuant to a home improvement contract. 33. Pursuant to 73 P.S. §517.7(a) Home Improvement contracts — Requirements, no improvement contract shall be valid or enforceable against an owner unless it, inter alia: a. Contains the entire agreement between the owner and the contractor, including attached copies of all required notices (73 P.S. §517.7(a)(3)); b. Contains the approximate starting date and completion date (73 P.S. §517.7(a)(6)); c. Contains an indication that contractor agrees to maintain liability insurance covering personal injury in an amount not less than $50,000.00 and insurance covering property damage caused by the work of a home improvement contractor in an amount not less than $50,000.00 and identifies the current amount of insurance coverage maintained at the time of the signing of the contract (73 P.S. §517.7(a)(11); and d. Contains a notice of the right of rescission (73 P.S. §517.7(b)). 34. Defendant violated HICPA by: a. not containing the entire agreement between the owner and the contractor in violation of 73 P.S. §517.7(a)(3); b. Defendant did not attach copies of all required notices to the Contract in violation of 73 P.S. §517.7(a)(3); c. The Contract did not contain the approximate starting date and completion date of the addition in violation of 73 P.S. §517.7(a)(6); d. The Contract did not contain an indication that Defendant agreed to maintain liability insurance covering personal injury in an amount not less than $50,000.00 and insurance covering property damage caused by the work of a home improvement contractor in an amount not les than $50,000.00, and the Contract did not identify the current amount of insurance maintained at the time of signing the Contract in violation of 73 P.S. §517.7(a)(11); and e. The Contract did not contain a notice of the right of rescission in violation of 73 P.S. §517.7(b). 35. HICPA further prohibits a contractor to "abandon or fail to perform, without justification, any home improvement contract or project engaged in or undertaken by a contractor." 73 P.S. §517.9(5). 36. Defendant failed to perform under the Contract entered into with Plaintiffs by failing to make all necessary repairs or complete all unfinished work on the Property. WHEREFORE Plaintiffs demand judgment against Defendant for violations under the Home Improvement Consumer Protection Act in the amount not in excess of the compulsory arbitration limits in Cumberland County, together with legal fees, associated costs of suit, punitive damages, as well as compensation for payments Plaintiffs have made to a third -party contractor to complete the addition on the Property. COUNT IV — VIOLATIONS OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 37. Paragraphs 1 through 36 are incorporated herein by reference as if fully set forth herein. 38. Pursuant to HICPA 73 P.S. §517.10, a violation of any of the provisions of HICPA shall be deemed a violation of the Unfair Trade Practices and Consumer Protection Law ("UTPCPL"). 39. The UTPCPL provides a right of private action for anyone who "suffers any ascertainable loss of money or property as a result of an unlawful method, act or practice. 73 P.S. §201-9.2(a). 40. 73 P.S. §201-2(4) lists twenty enumerated practices, which constitute actionable "unfair methods of competition" or "unfair or deceptive acts, or practices." 73 P.S. § 201- 2(4)(i)—(xx). 41. 73 P.S. §201-2(4)(xvi) delineates those persons "making repairs, improvements or replacements on tangible, real or personal property, of a nature or quality inferior to or below the standard of that agreed to in writing" are in violation of the UTPCPL. 42. Defendant used improper materials during the construction of the addition on the Property, and represented their work was of the quality set forth in the Contract. 43. Defendant's construction of the addition was below the standard agreed upon in the Contract signed by Plaintiffs and Defendant. 44. Upon a finding of liability, the court has the discretion to award "up to three times the actual damages sustained" and provide any additional relief the court deems proper. 73 P.S. § 201-9.2(a). • WHEREFORE Plaintiffs demand judgment against Defendant for violations under the UTPCPL for treble damages in the amount not in excess of the arbitration limits of Cumberland County, together with legal fees, associated costs of suit, punitive damages, as well as compensation for payments Plaintiffs have made to a third -party contractor to complete the addition on the Property. COUNT V — BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS 45. Paragraphs 1 through 44 are incorporated herein by reference as if fully set forth herein. 46. As aforesaid, Plaintiffs, through Plaintiff Radle, entered into the Contract with Defendant to perform a complete addition on the Property. 47. At the time of entering into the Contract, Defendant was in the business of home remodeling and made various implied warranties as to the final product, i.e. the addition. Defendant was aware of the addition's intended and ordinary use and Plaintiffs were justified in expecting a minimum level of quality, workmanship, and completeness of the construction of the addition, free of defects. 48. Plaintiffs relied upon the skill and judgment of the Defendant in entering into the Contract. 49. Defendant breached his implied duty of merchantability and fitness because Defendant's construction and installations were faulty, improper, in violation of municipal and building codes, and have caused or created damage to the Property. 50. Plaintiffs gave reasonable and adequate notice to Defendant of the aforesaid breach of warranty, but Defendant failed to cure the numerous issues, and effectively abandoned the job. 51. As a direct and proximate result of Defendant's breach of warranty, Plaintiff's sustained damages to the existing property. WHEREFORE, Plaintiffs demand judgment against Defendant for their breach of implied warranty of merchantability and fitness in the amount not in excess of the compulsory arbitration limits in Cumberland County, as well as compensation for payments Plaintiffs have made to a third -party contractor to complete the addition on the Property. MARTSON LAW OFFICES Date: /7 By: Christopher E. Rice, Esquire I.D. No. 90916 Aaron S. Haynes, Esquire I.D. No. 307746 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Plaintiffs HOC :ONSTRUCTI,ON PA048488 717-776-6599 HAROLD CASSELL 717-226-5310 7 HILLTOP LANE NEWVILLE, PA. 17241 KARA RADLE 41 WEST MAIN ST. CARLISLE, PA 17015 717-440-4592 ADDITION Remove roof on e' floor. Install 21410 floor joists Install % " tongue and groove plywood with 2 ft. overhang. Walls to be 2x6 framed out for 5 windows. Remove existing rear house roof. Frame new roof from existing, peak aver bedroom with 1 ft. overhang. Walls to be built at peak of existing house roof. Beam to be built halfway down to outside walls. Outside walls insulated with R-19. Ceilings insulated with R-38. Outside walls to be wrapped with tyvek. Siding to be removed from existing house and installed on new bedrooms. Install the home owner siding on side walls. ELECTRIC 1 -Receptacle to be placed on each wall. Light switch install at bedroom doorway. Wire for ceiling lights. install electric for washer & dryer upstairs. Water and drain lines installed for washer upstairs. Install washer drain for under washer pan. Install fluorescent light in laundry room on switch. Install 5ft. bi-fold doors in front of washer & dryer. Install Tight in closet in walk in closet. February 17, 2014 INVOICE It 40555 DRYWALL New drywall to be installed in new addition. All drywall to be taped, mudded, and sanded. Walls to be painted with primer. TRIM Trim to Installed on interior windows, doorways, closet & laundry room. Base board to be installed. ROOF FOR ADDITION 2x6 rafters. 7/16 OSB plywood. OSB plywood installed on ceiling joist for storage. New metal to be installed on addition. EXISTING ROOF New metal roof installed on existing roof. Soffit installed on addition to match existing house. TOTAL $19,500.00 Homeowner responsible for all permits required. Homeowner responsible for lighting fixtures. / ? '7 i (P (+i d A i. 02-17.2014 KARA RADLE HAROLD CASSELL VERIFICATION Amended The foregoing/Complaint is based upon information which has been gathered by our counsel in the preparation of the lawsuit. The language of the document is that of counsel and not our own. We have read the document and to the extent that it is based upon information which we have given to counsel, it is true and correct to the best of our knowledge, information and belief. To the extent that the content of the document is that of counsel, we have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if we make knowingly false averments, we may be subject to criminal penalties. 79/ Mary E. CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Amended Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Dated: John J. Mangan, III, Esquire BAYLEY & MANGAN 17 West South Street, Carlisle, PA 17013 Rolf E. Kroll, Esquire MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill. PA 17011 MARTSON LAW OFFICES By M. Price Te" East High Street Carlisle, PA 17013 (717) 243-3341 ROLF E. KROLL, ESQUIRE Pa. Supreme Court I.D. No. 47243 BRITTANY E. BAKSHI, ESQUIRE Pa. Supreme Court I.D. No. 311617 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, Pennsylvania 17011 Telephone: (717) 975-8114 Direct Dial: (717) 760-7502 Fax: (717) 975-8124 E -Mail: rkroll@margolisedelstein.com F E OFFE 1 HE PRO THONOAR''' 7�) i {v _' OEC —8NI P: 45 CUMBERLAND COUNTY PENNSYLVANIA. Attorneys for Defendant: Harold Cassell, d/b/a H.D.C. Construction IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RICHARD M. GROVE and MARY E. GROVE, Husband and Wife, and KARA RADLE Plaintiffs, v. HAROLD CASSELL d/b/a H.D.C. CONSTRUCTION, Defendants. CIVIL ACTION - LAW Docket No. 14-5407 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED to plead to the enclosed PRELIMINARY OBJECTIONS OF DEFENDANT, HAROLD CASSELL d/b/a H.D.C. CONSTRUCTION, TO THE AMENDED COMPLAINT, within twenty (20) days from service hereof, or a default judgment may be entered against you. Date: i gl 181 I Respectfully submitted, MARGOLIS EDELSTEIN By: 4 Rolf E oll ID No. 47243 Brittany E. Bakshi ID No. 311617 3510 Trindle Road Camp Hill, PA 17011 717-975-8114 Attorneys for Defendant ROLF E. KROLL, ESQUIRE Pa. Supreme Court I.D. No. 47243 BRITTANY E. BAKSHI, ESQUIRE Pa. Supreme Court LD. No. 311617 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, Pennsylvania 17011 Telephone: (717) 975-8114 Direct Dial: (717) 760-7502 Fax: (717) 975-8124 E -Mail: rkroll@margolisedelstein.com Attorneys for Defendant: Harold Cassell, d/b/a H.D.C. Construction IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RICHARD M. GROVE and MARY E. GROVE, Husband and Wife, and KARA RADLE Plaintiffs, v. HAROLD CASSELL d/b/a H.D.C. CONSTRUCTION, Defendants. CIVIL ACTION - LAW Docket No. 14-5407 CIVIL TERM JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this day of , 2014, upon consideration of the Preliminary Objections of Harold Cassell, d/b/a H.D.C. Construction, it is hereby ORDERED and DECREED that the Preliminary Objections are GRANTED and Plaintiffs' claims at Count II and III, claims for punitive damages, and claims for attorney's fees at Count III are stricken, with prejudice. BY THE COURT: J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RICHARD M. GROVE and MARY E. GROVE, Husband and Wife, and KARA RADLE Plaintiffs, v. HAROLD CASSELL d/b/a H.D.C. CONSTRUCTION, Defendants. CIVIL ACTION - LAW Docket No. 14-5407 CIVIL TERM JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS TO PLAINTIFFS' AMENDED COMPLAINT AND NOW, comes Defendant, Harold Cassell d/b/a H.D.C. Construction, by and through his counsel, Margolis Edelstein to file Preliminary Objections to Plaintiffs' Amended Complaint averring the following in support thereof: I. FACTUAL BACKGROUND 1. Plaintiffs, Richard and Mary Grove, (hereinafter, "the Groves") initiated this action by filing a Complaint in the Court of Common Pleas of Cumberland County on September 11, 2014. 2. In their Complaint, the Groves alleged that they entered into a contract with Defendant, Harold Cassell d/b/a H.D.C. Construction (hereinafter, "Mr. Cassell"), to build an addition onto their property located at 41 West Main Street, Plainfield, Pennsylvania, 17015 (hereinafter "the property"). (Compl. ¶ 4, Ex. A) 3. As the Groves were not a party to the identified contract, they filed an Amended Complaint on November 17, 2014, to add the other executing party to the contract, Kara Radle, as a Plaintiffto this matter. (Amend. Compl. ¶ 2) 4. As alleged in the Amended Complaint, the Groves were the owners of the property and in the process of renovations prior to their transfer of the property to Ms. Radle. (Amend. Compl. 1 4) 5. The Groves authorized Ms. Radle to act as their agent with respect to signing relevant documentation related to the renovations. (Amend. Compl. ¶ 6) 6. The Groves and Ms. Radle (hereinafter collectively referred to as "Plaintiffs") further aver that Mr. Cassell failed to complete the renovations to the property as detailed in the contract. (Amend. Compl. VI 13 — 16) 7. Plaintiffs seek compensation for the alleged damage caused by Mr. Cassell's renovations and costs for remediating any claimed deficiencies caused by Mr. Cassell. (Amend. Compl., generally) 8. Plaintiffs' five count Amended Complaint contains claims for breach of contract, unjust enrichment, violations of the Home Improvement Consumer Protection Act ("HICPA"), the Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), and breaches of the implied warranties of merchantability and fitness. (Amend. Compl., generally). 9. Based on the claims under the HICPA and UTPCPL, Plaintiffs request awards of punitive damages and attorney's fees. 10. For the reasons set forth below, Plaintiffs are barred from recovering on their claims for unjust enrichment and violations of the HICPA. 11. Moreover, Plaintiffs cannot recover punitive damages based on their claims under HICPA and the UTPCPL claims. 12. Lastly, Plaintiffs cannot recover attorney's fees under their HICPA claim. II. ARGUMENT 2 A. Demurrer: Plaintiffs Cannot Recover On Their Claim For Unjust Enrichment. 13. Pennsylvania courts have consistently held that in the face of a fully executed contract, an unjust enrichment claim cannot proceed. 14. Indeed, "a cause of action for unjust enrichment may arise only when a transaction of the parties not otherwise governed by an express contract confers a benefit on the defendant to the plaintiffs detriment without any corresponding exchange of value." Villoresi v. Femminella, 856 A.2d 78, 84 (Pa. Super. 2004). 15. Here, Plaintiffs plead in their Amended Complaint that Ms. Radle and Mr. Cassell executed a contract that detailed the work that Mr. Cassell was to perform on the property. (Amend. Compl. ¶¶ 7, 10) 16. At no point in the Amended Complaint, do the Plaintiffs aver that they entered into an oral contract with Mr. Cassell or that the rights and obligations of the parties were governed by anything other than the contract. (Amend. Compl, generally, Ex. A) 17. Plaintiffs are solely seeking to be made whole based upon the agreement between Ms. Radle and Mr. Cassell as outlined in the fully executed contract. 18. Therefore, Plaintiffs' claim for unjust enrichment cannot stand in the face of an express contract. 19. Accordingly, Plaintiffs' claim for unjust enrichment at Count II should be dismissed, with prejudice. B. Demurrer: Plaintiffs Cannot Recover Under HICPA. 20. The HICPA does not expressly create a private cause of action. 21. Therefore, only if HICPA implicitly creates a cause of action can Plaintiffs' claim exist. 3 22. The Pennsylvania Supreme Court adopted a three part test to determine whether a statute provides for a private remedy in the absence of explicit language. 23. This three prong test requires the analysis of the following: 1) whether the plaintiff is one of the class for whose especial benefit the statute was enacted; 2) whether there is any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one; and 3) whether it is consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff. 24. Here, Plaintiffs cannot prove the second prong of this test. 25. The Sections 517.7 and 517.9, as cited by Plaintiffs in support of their claim at Count III, state: § 517.7 Home improvement contracts (a) Requirements. No home improvement contract shall be valid or enforceable against an owner unless it: [...] § 517.9 Prohibited acts. No person shall: (5) Abandon or fail to perform, without justification, any home improvement contract or project engaged in or undertaken by a contractor. For the purposes of this paragraph, the term "justification" shall include nonpayment by the owner as required under the contract or any other violation of the contract by the owner. 26. Neither of these sections expressly contain a provision that entitles an owner to recover monies paid to a contractor based on a violation of the section.. 27. Indeed, section 517.7 only provides owners with a shield from an action initiated by a contractor in that protects owners from invalid contracts. 4 28. Moreover, the only section of HICPA that speaks tangentially to a right of recovery for an owner is Section 517.10, which states that a violation of a provision of HICPA is deemed a violation of the UTPCPL. 29. Based on section 517.10 it is evidence that the legislature considered that owners would seek to file suit based on provisions of HICPA, but determined that a claim under the UTPCPL would be an appropriate vehicle for recovery. 30. Consequently, it is evident that the legislature did not intend to create a private cause of action based on HICPA alone, as it refers an owner to the UTPCPL as a source for basing a claim of recovery. 31. Therefore, a review of HICPA reveals that the legislature did not intend to create a private cause of action for an owner and Plaintiffs cannot satisfy the second prong of the test. 32. Accordingly, Plaintiffs' claim under HICPA-at Count III must be dismissed, with prejudice. C. Motion to Strike: Plaintiffs' claims for punitive damages at Counts III and IV must be stricken. 33. In the alternative, should this court conclude, that HICPA does provide Plaintiffs with a private cause of action, their requests for punitive damages must be stricken. 34. Punitive damages will not be awarded for ordinary negligence, nor even for gross negligence. 35. Pursuant to Pennsylvania law, punitive damages will be permitted only when the defendant's conduct is outrageous, meaning that the defendant's conduct is egregious and shows either an evil motive or reckless indifference to others. 5 36. Furthermore, a claim for punitive damages must be supported by evidence which shows that the defendant had a subjective appreciation of the risk of harm to which the plaintiff is exposed and that the defendant acted or failed to act in conscious disregard of that risk. 37. Here, Plaintiffs' Amended Complaint does not contain a single averment pertaining to Mr. Cassell's intent or state of mind. 38. Averments such as these are crucial to a claim for punitive damages. 39. Additionally, the allegations pertaining to the Mr. Cassell's conduct clearly do not constitute the type of reckless conduct that supports a claim for punitive damages. 40. Indeed, Plaintiffs' Amended Complaint simply states that Mr. Cassell failed to fulfill the terms of the contract. 41. Therefore, Plaintiffs' claims for punitive damages should be struck at Counts III and IV. D. Motion to Strike: Plaintiffs' claim for attorney's fees at Count III must be stricken. 42. In Pennsylvania, the right to recover attorney's fees does not exist at common law. 43. The Pennsylvania Supreme Court has held that attorney's fees are only permissible, "only when provided for by statute, or when clearly agreed to by the parties." PennDOT v. Manor Mines Inc., 565 A.2d 428, 433 (Pa. 1989). 44. Moreover, the Judicial Code outlines ten specific situations in which attorney's fees are recoverable. 42 Pa. C.S. § 2503. 45. None of these exceptions apply to this matter. 46. Here, Plaintiffs seek attorney's fees at Count III without citing to any statutory provision or agreement by which they are entitled to such an award. 6 47. Indeed, HIPAC does not contain a provision entitling a recovering party to attorney's fees. 48. Furthermore, the contract executed by Ms. Radle and Mr. Cassell does not contain a provision entitling either party to an award for attorney's fees. 49. Therefore, Plaintiff's request for attorney's fees must fail given the absence of authority. 50. Accordingly, Plaintiffs' claims for punitive damages and attorney's fees should be stricken from the Amended Complaint at Count III, with prejudice. III. CONCLUSION Based on the foregoing, Defendant, Harold Cassell d/b/a H.D.C. Construction, respectfully requests that this Honorable Court dismiss Counts II and III of the Amended Complaint, strike Plaintiffs' claim for punitive damages at Count IV and, in the alternative, this Court should strike Plaintiffs' claims for attorney's fees at Count III. Respectfully submitted, MARGOLIS EDELSTEIN By: 7 4' ROLF E. KR LL, ESQUIRE PA. Attorney I.D. No. 47243 BRITTANY E. BAKSHI, ESQUIRE PA. Attorney LD. No. 311617 Attorneys for Defendant, Harold Cassell d/b/a H.D.C. Construction 3510 Trindle Road Camp Hill, PA 17011 (717) 975-8114 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the 6 day of December, 2014, and addressed as follows: Christopher E. Rice, Esquire Martson, Deardorff, Williams, Otto, Gilroy & Faller Martson Law Offices 10 East High Street Carlisle, PA 17013 Attorney for Plaintiff MARGOLIS EDELSTEIN PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Richard M. Grove and Mary E. Grove, Husband and Wife, and Kara Radle vs. Harold Cassell d/b/a H.D.C. Construction No 5407 2014 -`1 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Amended Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Christopher Rice, Esq. (Name and Address) 10 East High Street, Carlisle, PA 17013 (b) for defendants: Brittany E. Bakshi, Esq. (Name and Address) 3510 Trindle Rd., Camp Hill, PA 17011 3. I will notify all parties in writing within two days that this case has been listed for argument. Yes. 4. Argument Court Date: January 16, 2015 December 9, 2014 Date: JZ� , • Signature Brittany E. Baksi, Esq. Print your name Defendant Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. j 4116115V eal.5'o3� F;\FILES\Clients\15773 Grove\ 15773.1.response to po.wpd Christopher E. Rice, Esquire I.D. No. 90916 Aaron S. Haynes, Esquire I.D. No. 307746 MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Richard M. Grove and Mary E. Grove 2:11DE' 30 il 10: 55 : t'Iv RL itsD 3U,4 ! 'I' PENNSYLVANIA RICHARD M. GROVE and MARY E. GROVE, HUSBAND AND WIFE, and KARA RADLE, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. : NO. 2014 - 5407 CIVIL TERM HAROLD CASSELL d/b/a H.D.C. CONSTRUCTION, Defendant PLAINTIFFS' ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' AMENDED COMPLAINT AND NOW, come the Plaintiffs, Richard M. Grove and Mary E. Grove, husband and wife, and Kara Radle, by and through their attorneys MARTSON LAW OFFICES, and responds Defendant's Preliminary Objections as follows: I. FACTUAL BACKGROUND 1. Admitted: 2. Denied as the document speaks for itself. 3. Denied as the document speaks for itself. 4. Denied as the document speaks for itself. 5. Denied as the document speaks for itself. 6. Denied as the document speaks for itself. 7. Denied as the document speaks for itself. 8. Denied as the document speaks for itself. 9. Denied as the document speaks for itself. 10. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 11. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 12. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. II. ARGUMENT A. Demurrer: Plaintiffs Cannot Recover On Their Claim For Unjust Enrichment. 13. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 14. Denied. The averments ofthis paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 15. Denied as the document speaks for itself. 16. Denied as the document speaks for itself. 17. Denied as the document speaks for itself. 18. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 19. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. B. Demurrer: Plaintiffs Cannot Recover Under HICPA. 20. Denied. The averments ofthis paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied 21. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 22. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 23. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 24. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 25. Denied as the document speaks for itself. 26. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 27. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 28. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 29. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 30. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 31. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 32. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. C. Motion to Strike: Plaintiffs' claims for punitive damages at Counts III and IV must be stricken. 33. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 34. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 35. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 36. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 37. Denied as the document speaks for itself. 38. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 39. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. By way of further response, denied as the document speaks for itself. 40. Denied as the document speaks for itself. 41. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. D. Motion to Strike: Plaintiffs' claim for attorney's fees at Count III must be stricken. 42. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 43. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 44. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 45. Denied as the document speaks for itself. 46. Denied as the document speaks for itself. 47. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 48. Denied as the document speaks for itself. 49. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. 50. Denied. The averments of this paragraph are conclusions of law to which no response is required. If a response is deemed required, said averments are denied. II. CONCLUSION WHEREFORE, based upon the foregoing, Richard M. Grove and Mary E. Grove, husband and wife, and Kara Radle, respectfully request that this Honorable Court deny Defendant's Preliminary Objections to Plaintiffs' Amended Complaint. MARTSON LAW OFFICES i/(3 V*4- By: Christopher E. Rice, Esquire I.D. No. 90916 Aaron S. Haynes, Esquire I.D. No. 307746 10 East High Street Carlisle, PA 17013 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Answer to Preliminary Objections was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Brittany E. Bakshi, Esquire MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 MARTSON LAW OFFICES M. Price Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: /02,fr%r