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HomeMy WebLinkAbout14-5927 Supreme Court of-Pennsylvania Cour'.t of Common`Pleas For Prothonotary Use Only: Civil Covei..Sheet x lt: :r�, Docket No: t, p '�l CUMBERLAND County (//� 7 w, The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S El Complaint 0 Writ of Summons Q Petition 0 Transfer from Another Jurisdiction I© Declaration of Taking E C Lead Plaintiff s Name: Lead Defendant's Name: T, THOMAS R. and BERNADETTE M. MILLER COLLEEN R. ESSICK, INC. I Are money damages requested? D Yes No Dollar Amount Requested: 'Owithin arbitration limits O (check one) Ooutside arbitration limits N Is this a Class Action Suit? El Yes 0 No Is this an MDJAppeal? 0 Yes [D No A Name of Plaintiff/Appellant's Attorney: GERARD J. PISARCIK, ESQUIRE 0 Check here if you have no attorney(are a Self-Represented (Pro Se) Litigant) Nature of the Case: Place an"X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS 0 intentional Buyer Plaintiff Administrative Agencies E] Malicious Prosecution 0 Debt Collection: Credit Card Board of Assessment Motor Vehicle Q Debt Collection: Other Board of Elections E]Nuisance M Dept.of Transportation Q Premises Liability 0 Statutory Appeal:Other S 0 Product Liability(does not include Emass tort) l i Employment Dispute: Slander/Libel/Defamation Discrimination C Other: CYJ Employment Dispute:Other 0 Zoning Board T Other: I P" Other: O MASS TORT El Asbestos N 0 Tobacco 0 Toxic Tort-DES E] Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS 0 Toxic Waste Other: 0 Ejectment 0 Common Law/Statutory Arbitration B0 Eminent Domain/Condemnation F1 Declaratory Judgment 0 Ground Rent E] Mandamus El Landlord/Tenant Dispute E] Non-Domestic Relations El Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABILITY El Mortgage Foreclosure:Commercial 0 Quo Warranto Q Dental i Partition Q Replevin Legal 0 Quiet Title Other: 0 Medical Q Other: 0 Other Professional: Updated 111/2011 rt..F0, �_� F#fes E J,j 1` Gerard J. Pisarcik, Esquire r 10. ,7 Laws, Staruch& Pisarcik 20 Erford Road Suite 105 S R L ANL! C U J N-1Y ' #y#�l�h S Y LVA Nf ALemoyne, PA 17043 LSPGJPCa%aol.com 717-975-0600 Attorney for Plaintiffs THOMAS R. MILLER and IN THE COURT OF COMMON PLEAS OF BERNADETTE M. MILLER, CUMBERLAND COUNTY, PENNSYLVANIA husband and wife, Plaintiffs V. NO. '�' J ►a COLLEEN R. ESSICK, INC., d/b/a CORNERSTONE CONTRACTING and COLLEEN R. ESSICK and WAYNE L. ESSICK, JR., husband and wife, : Defendants CIVIL ACTION—LAW NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY(20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH HIRING A LAWYER. � fps �s��✓ ��� S.2o i 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 REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 Gerard J. Pisarcik, Esquire Atty. ID: 39181 Laws, Staruch & Pisarcik 20 Erford Road, Suite 105 Lemoyne, PA 17043 LSPGJP@aol.com ,aol.com Attorney for Plaintiffs THOMAS R. MILLER and IN THE COURT OF COMMON PLEAS OF BERNADETTE M. MILLER, CUMBERLAND COUNTY, PENNSYLVANIA husband and wife, Plaintiffs V. NO. COLLEEN R. ESSICK, INC., d/b/a CORNERSTONE CONTRACTING and COLLEEN R. ESSICK and WAYNE L. ESSICK, JR., husband and wife, Defendants CIVIL ACTION—LAW COMPLAINT 1. Plaintiffs Thomas R. Miller and Bernadette M. Miller, husband and wife, are adult individuals residing at 848 Wynnewood Road, Camp Hill, Cumberland County, Pennsylvania, 17011. 2. Defendant Colleen R. Essick, Inc., d/b/a Cornerstone Contracting, is a Pennsylvania corporation with place of business at 280 Whiskey Springs Road, Dillsburg, York County, Pennsylvania, 17019 and is comprised of officers Colleen R. Essick and Wayne L. Essick, Jr. 3. Defendants Colleen R. Essick and Wayne L. Essick, Jr., husband and wife, are adult individuals residing at 280 Whiskey Springs Road, Dillsburg, York County, Pennsylvania, 17019. 4. At all times relevant to this cause of action Defendants represented and held themselves out to Plaintiffs as being home improvement contractors possessing the required skills to perform home improvement remodeling. COUNT NEGLIGENCE 5. On or about October 19, 2012, Defendants Colleen R. and Wayne L. Essick, Jr. as officers of Colleen R. Essick, Inc. d/b/a Cornerstone Contracting, and individually, (hereinafter "Defendants"), submitted a proposal to Plaintiffs to perform construction and remodeling services to Plaintiffs' residence, which proposal was thereafter accepted by Plaintiffs. A copy of this contract is attached as Exhibit"A". 6. Pursuant to this home improvement contract Defendants agreed to, inter alia, install kitchen cabinets, install the attendant kitchen cabinet trim and install kitchen flooring consisting of a new subfloor and Duraceramic tiles. 7. Defendants owed Plaintiffs a requisite duty of care to perform this home remodeling work with a reasonable degree of proficiency generally possessed by those engaging in this trade. 2 8. Defendants thereafter breached their duty of care in the performance of this work during December, 2012 through January, 2013, doing so in a negligent, improper and unworkmanlike manner in that: (a) the subflooring materials provided by Defendants were substandard and/or installed improperly resulting in an uneven and/or irregular subfloor surface; (b) the Duraceramic tiles were thereafter installed improperly and/or on an uneven and/or irregular subfloor resulting in the inability of these tiles to withstand normal foot traffic without flexing and cracking; (c) the kitchen cabinet doors were installed unevenly resulting in improper closure and unsightly and unprofessional appearance; (d) Defendants installed only a portion of the associated cabinet trim work and also did so in an uneven, irregular and incompetent manner. 9. Despite timely request by Plaintiffs in February, 2013, Defendants have refused to remedy this defective, improper and unworkmanlike construction. 10. As a direct and proximate result of Defendants' negligent and unprofessional conduct, Plaintiffs were and will continue to be required to expend substantial sums in locating and enlisting alternate contractors to remedy the above defective workmanship and claim is made therefore as follows: (a) expense to adjust/reinstall cabinet doors and remove and properly reinstall kitchen cabinet trim: $900.00; (b) expense to remove existing Duraceramic kitchen floor and defective subfloor and reinstall new subflooring and new Duraceramic tiles: $3,489.00. 3 11. Further, as change orders to the above home improvement agreement in or about November and December, 2012 and January, 2013, Defendants agreed to accurately measure a total of twenty-four (24) windows throughout Plaintiffs' residence, with the understanding and for the express intention that these measurements would be provided to a replacement window retailer and that custom windows would be purchased by Plaintiffs from the retailer and thereafter constructed to these measurements by the replacement window manufacturer. 12. Plaintiffs and Defendants further agreed that upon Plaintiffs' direct purchase of these exact size windows from the replacement window retailer that Defendants would thereafter install these windows in Plaintiffs' residence. 13. On various dates between November, 2012 and January, 2013, Defendants measured twenty-four (24) existing windows and window openings in Plaintiffs' residence. 14. In reliance on Defendants' window measurements, which measurements Defendants subsequently in part provided directly to the replacement window retailer, and to Plaintiffs who in turn provided same to the retailer, Plaintiffs thereafter purchased and took delivery of twenty- four (24) exact size, non-returnable custom replacement windows from this retailer, paying a total amount of$7,818.56. 15. Defendants thereafter failed and refused to respond to Plaintiffs' requests to install these twenty-four (24) replacement windows that had been constructed pursuant to Defendants' exact measurements and abandoned Plaintiffs' home improvement project, and the subject agreements, in or about March, 2013. 16. As a result of Defendants' deliberate abandonment of Plaintiffs' home improvement project and the above agreements, Plaintiffs were compelled to obtain the services of an alternate contractor to install the above custom-ordered windows. 4 17. Plaintiffs thereafter were advised, determined and therefore aver that each of the twenty-four (24) custom replacement windows that had been constructed and purchased based solely and expressly upon Defendants' measurements were too large for the window openings intended, even if laboriously installed in a "rough-out" manner wherein all original wooden window framing would be removed, fully exposing and leaving only the exterior brick window openings, with the result that these windows could not in any manner be installed within the existing twenty-four(24) window openings of Plaintiffs' residence. 18. In mitigation of the $7,818.56 cost of these twenty-four (24) custom replacement windows, Plaintiffs attempted and were able to sell them privately over the ensuing one (1) year period, with considerable investment of time, for approximately $75.00 to $100.00 per window, or for an approximate total amount of $2,400.00, which amount is therefore offset against the $7,818.56 expense of same. 19. As referenced, Defendants, at all times relevant, held themselves out as home improvement remodelers and residential contractors and owed Plaintiffs a duty of care based on such status to perform Plaintiffs' home remodeling with a required degree of skill and care possessed by those engaged in this trade. Plaintiffs in turn reasonably relied on Defendants' expertise in regard to the measurements of their dwelling's window openings. 20. As a direct and proximate result of Defendants' breach of their professional duty of care in performing home remodeling construction and in particular their negligent and unworkmanlike conduct regarding the measurements of the twenty-four (24) window openings within Plaintiffs' residence, with direct knowledge that Plaintiffs would solely and reasonably rely on these measurements in purchasing custom, non-returnable replacement windows for each such opening, Plaintiffs have suffered a financial loss of$5,418.56 and claim is made therefore. 5 WHEREFORE, Plaintiffs Thomas R. and Bernadette M. Miller demand judgment against Defendants Colleen R. Essick, Inc., Colleen Essick and Wayne L. Essick, Jr. in amounts totaling $9,807.56, as set forth above, plus pre judgment interest, which amounts in the aggregate are below that figure requiring referral of this matter to compulsory arbitration. COUNT II BREACH OF CONTRACT 21. Paragraphs 1 through 20 are incorporated herein by reference. 22. Defendants' failure to perform the agreed-upon home improvements to Plaintiffs' residence and/or Defendants' failure to have performed such improvements in a proper and workmanlike manner constitute a material breach of the October 19, 2012 agreement and the November and December, 2012 and January, 2013 change orders to that agreement. 23. As a direct and proximate result of Defendants' material breaches of the October 18, 2012 agreement and the November and December, 2012 and January, 2013 change orders to that agreement, Plaintiffs have suffered monetary damages in the amount of$9,807.56 as set forth above. WHEREFORE, Plaintiffs Thomas R. and Bernadette M. Miller demand judgment against Defendants Colleen R. Essick, Inc., Colleen Essick and Wayne L. Essick, Jr. in amounts totaling $9,807.56, as set forth above, plus pre judgment interest, which amounts in the aggregate are below that figure requiring referral of this matter to compulsory arbitration. 6 COUNT III BREACH OF IMPLIED WARRANTY OF REASONABLE WORKMANSHIP 24. Paragraphs 1 through 23 are incorporated herein by reference. 25. Defendants impliedly warranted that the home improvement construction to Plaintiffs' residence would be completed with reasonable workmanship. 26. Defendants' deficient and improper construction of Plaintiffs' home improvements as set forth in Count I above was not performed in a reasonable or workmanlike manner. 27. Defendants' deficient and improper construction of Plaintiffs' home improvements constitutes a material breach of the implied warranty of reasonable workmanship. 28. As a direct and proximate result of Defendants' breach of the implied warranty of reasonable workmanship in regard to Plaintiffs' home improvement construction, Plaintiffs have sustained monetary damages in the amount of$9,807.56 as set forth in Count 1 above. WHEREFORE, Plaintiffs Thomas R. and Bernadette M. Miller demand judgment against Defendants Colleen R. Essick, Inc., Colleen Essick and Wayne L. Essick, Jr. in amounts totaling $9,807.56, as set forth above, plus pre judgment interest, which amounts in the aggregate are below that figure requiring referral of this matter to compulsory arbitration. COUNT IV VIOLATIONS OF THE HOME IMPROVEMENT CONSUMER PROTECTION ACT AND THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 29. Paragraphs 1 through 28 are incorporated herein by reference. 30. Section 517.7 of Pennsylvania's Home Improvement Consumer Protection Act, 73 P.S. §517.7 ("HICPA") requires, inter alia, that a home improvement contract include: 7 (a) A contractor's registration number; (b) The amount of liability insurance coverage maintained by the contractor; (c) The toll free number maintained by the Bureau of Consumer Protection; (d) A notice of the consumer's right to rescind a contract; (e) The approximate starting and completion dates on construction; and (f) A notice of the right to rescission. 31. Neither Defendants' proposal, which upon signing became the home improvement contract, nor the modifications or change orders to same regarding Defendants' measurements and proposed installation of replacement windows, contained any of the above required information. 32. Section 517.10 of the HICPA (73 P.S. §517.10) deems a violation of any provision of this Act to be a violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law("UTPCPL") (73 P.S. §201-1, et seq.). 33. Section 201-9.2(a) of the UTPCPL permits the commencement of a private action to recover actual damages or one hundred dollars ($100.00), whichever is greater, and permits an award of up to three (3) times actual damages sustained, with such additional relief as necessary and proper, including costs and reasonable attorney fees. 34. Defendants' numerous violations of the HICPA are indicative of their overall negligent, substandard, unprofessional and unworkmanlike conduct displayed during the course of their transactions with Plaintiffs and warrant the imposition of an award of treble damages, costs and reasonable attorney fees, and claim is made therefore. WHEREFORE, Plaintiffs Thomas R. and Bernadette M. Miller demand judgment against Defendants Colleen R. Essick, Inc., Colleen Essick and Wayne L. Essick, Jr. in amounts totaling three (3) times actual damages or $29,422.68, plus pre judgment interest, costs associated with 8 the filing and pursuit of this action and reasonable attorney fees, which damages in the aggregate are below that figure requiring referral of this matter to compulsory arbitration. LOard ARUCH& P PCIK Date: D Dei�� B J. Pisarc , Esquire it, ID: 39181 20 Erford Road, Suite 105 Lemoyne, PA 17043 717-975-0600 LSPGJP@aol.com 9 PROPOSAL Prepared For: Tom and Brett Miller Job: kitchen and study remodel Location: 848 Wynnewood Rd. Canip Hill Description of Work to Be Completed: Kitchen * Remove and dispose of cabinets, countertops, flooring,appliances, and plumbing� �-- * Demo (2) side walls between kitchen and DR * Electrical: 1. Rough in low volttag v,&e for LEER lights in c-abi ets 2. Relocate(2)switches 3_ Replace(3)switches • 4. Rough in cable and electric for undermount TV • Install "dura-ceramic"flooring in diamond layout Install cabinets and trim- • Supervise installation of countertops Install appliances and plumbing fixtures * Install glass the backsplash "Horneowner to provide cabinets, countertops,appliances,plumnbing fixtures,flooring,backsplash, grout and LED lmglits�`" **"Homeowner to do all paing:1"T �v Cornerstone Contracting to provide rough in electrical mate!rjals,rough in plumbing, switches and receps**r Total for above work-. S8,150.00 Study Remodel- * Demo 8' of wall Build abinet back to wall * hist all table and electric for waif i iounic'd 'l v Drywall (3)walls over paneling * Prep for paint Total for above work-53,600.00 2801 Msl-ey Soririg Rd.*Dillsbur 'Pa*17019T(717�52--i£=;= enZail:cc.builderkQ__,moo coma P ROPUSQQ L p.l. Prepared For: Tom and Brett Miller Job: Kitchen and study remodel Cornerstone Contracting 14,111 add additional charges for any alteration/deviation in work or materials from description above. The additional charges will include material cost and labor fees. 50%deposit requiredpt-tor to st art o work*** PRICING LN THIS PF:CiMSja L OD FOP 3z0 DA Y S Cornerstone Contracting agrees to perform work as described above. Cornerstone Contracting is not responsible for any delays in work due to material limitations or circumstances beyond our control. Wayne L. Essick, Jr. for Cornerstone Contracting Date By,sgri-tng below,the cusionrer, is accepting this prows-all as outlined abo`v-e and aztopay-merit schedule set forth. Customer Date Thank you for votff business! 280 Whiskey SILiing Rd_*Dillsburw'Pa*17019*1717)773-5348'`email:cc builder(ca}yahoo coni VERIFICATION Subject to the penalties for falsification to authorities prescribed by 18 Pa.C.S. §4904, we hereby verify that the facts set forth in the foregoing Complaint are true and correct to the best of our personal knowledge, information and belief. '7> Thomas R. Miller Date: Bernadette M. Miller Date: / O - Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY „I.H;, PR THONo1A#: 2014 NOV (3 A?i 10: 02 CUMBERLAND COUNTY PENNSYLVANIA OFFICEof ThE sirER)rr Thomas R Miller vs. Colleen R. Essick, Inc. d/b/a Cornerstone Contracting (et al.) Case Number 2014-5927 SHERIFF'S RETURN OF SERVICE 10/06/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Colleen R. Essick, Inc. d/b/a Cornerstone Contracting, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of York County, Pennsylvania to serve the within Complaint & Notice according to law. 10/06/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Colleen R Essick, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of York County, Pennsylvania to serve the within Complaint & Notice according to law. 10/06/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Wayne L Essick, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of York County, Pennsylvania to serve the within Complaint & Notice according to law. 10/09/2014 The requested Complaint & Notice returned by the Sheriff of York County, the within named Defendant Wayne L Essick, not found. Richard Keuerleber, Sheriff, Return of Service attached to and made part of the within record. 10/09/2014 The requested Complaint & Notice returned by the Sheriff of York County, the within named Defendant Colleen R Essick, not found. Richard Keuerleber, Sheriff, Return of Service attached to and made part of the within record. 10/09/2014 The requested Complaint & Notice returned by the Sheriff of York County, the within named Defendant Colleen R. Essick, Inc. d/b/a Cornerstone Contracting, not found. Richard Keuerleber, Sheriff, Return of Service attached to and made part of the within record. 10/21/2014 Ronny R Anderson, Sheriff, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Wayne L Essick, but was unable to locate the Defendant in his bailiwick. The Sheriff therefore returns the within requested Complaint & Notice as "Not Found" at 280 Whiskey Springs Road, South Middleton Township, Dillsburg, PA 17019. Deputies were advised by the current resident that they have lived at this address for approximately two months. The Dillsburg Postmaster provided a forwarding address of 6729 Huntington Hills Terrace, Lakeland, Florida 33810. 10/21/2014 Ronny R Anderson, Sheriff, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Colleen R Essick, but was unable to locate the Defendant in his bailiwick. The Sheriff therefore returns the within requested Complaint & Notice as "Not Found" at 280 Whiskey Springs Road, South Middleton Township, Dillsburg, PA 17019. Deputies were advised by the current resident that they have lived at this address for approximately two months. The Dillsburg Postmaster provided a forwarding address of 6729 Huntington Hills Terrace, Lakeland, Florida 33810. 10/21/2014 Ronny R Anderson, Sheriff, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Colleen R. Essick, Inc. d/b/a Cornerstone Contracting, but was unable to locate the Defendant in his bailiwick. The Sheriff therefore returns the within requested Complaint & Notice as "Not Found" at 280 Whiskey Springs Road, South Middleton Township, Dillsburg, PA 17019.Deputies were advised by the current resident that they have lived at this address for approximately two months. The Dillsburg Postmaster provided a forwarding address of 6729 Huntington Hills Terrace, Lakeland, Florida 33810. CountySui to t henH T eieosos£. inn. 10/22/2014 Ronny R Anderson, Sheriff, who being duly sworn according to Iaw, states that he served the within Complaint & Notice upon the within named defndant.CcJ|eenR.Essick./nc.d8b/oComerstone Contracting, in the following manner: On October 22, 2014 the Sheriff mailed by certified mail, return receipt requested a true and correct copy of the within Complaint & Notice to the defendant's last known address of 6729 Huntington Hills Terrace, Lakeland, FL 33810. The certified mail return receipt card was received by the Cumberland County Sheriffs Office signed by signature illegible adult in charge for Colieen R. Essick, Inc. d/b/a Cornerstone Contracting on October 25, 2014. 10/22/2014 Ronny R Anderson, Shehff, who being duly sworn according to iaw, states that he served the within Complaint & Notice upon the within named defendant, Colleen R Essick, in the following manner: On October 22, 2014 the Sheriff mailed by certified mail, return receipt requested a true and correct copy of the within Complaint & Notice to the defendant's last known address of 6729 Huntington Hills Terracee, Lakeland, FL3381O.The certifiodmail return receipt card was received bythe Cumberland County Sheriffs Office signed by signature illegible adult in charge for Colleen R. Essick on October 25, 2014. 10/22/2014 Ronny R Anderson, Sheriff, who being duly sworn according to law, states that he served the within Complaint & Notice upon the within named defendant, Wayne L Essick, in the following manner: On October 22, 2014 the Sheriff mailed by certified mail, return receipt requested a true and correct copy of the within Complaint & Notice to the defendant's last known address of 6729 Huntington Hills Terrace, Lakeland, FL 33810. The certified mail return receipt card was received by the Cumberland County Sheriffs Office signed by signature illegible adult in charge for Wayne L Essick on October 25, 2014. SHERIFF COST: $167.10 SO ANSWERS, November 12, 2014 RONNS'RANDERSON, SHERIFF (c) CountySuite Sheriff, Teleosoft, Inc. Richard P Keuerleber Sheriff Michael S. Hose Chief Deputy, Operations SHERIFF'S OFFICE OF YORK COUNTY PETER J. MANGAN, ESQ. Solicitor Richard E Rice, II Chief Deputy, Administration THOMAS R. MILLER vs. COLLEEN R. ESSICK, INC. DBA CORNERSTONE CONTRACTING (et aL) Case Number 14-5927 CIVIL SHERIFF'S RETURN OF SERVICE 10/09/2014 I, RICHARD P KEUERLEBER, SHERIFF, WHO BEING DULY SWORN ACCORDING TO LAW, STATES HE MADE DILIGENT SEARCH AND INQUIRY FOR THE WITHIN NAMED DEFENDANT TO WIT: COLLEEN R. ESSICK, INC. DBA CORNERSTONE CONTRACTING, BUT WAS UNABLE TO LOCATE THE DEFENDANT IN HIS BAILIWICK. THE SHERIFF THEREFORE RETURNS THE WITHIN REQUESTED COMPLAINT IN CIVIL ACTION (CICA) AS "NOT FOUND" AT 280 WHISKEY SPRINGS ROAD, DILLSBURG, PA 17019. ADDRESS IS IN CUMBERLAND COUNTY 10/09/2014 I, RICHARD P KEUERLEBER, SHERIFF, WHO BEING DULY SWORN ACCORDING TO LAW, STATES HE MADE DILIGENT SEARCH AND INQUIRY FOR THE WITHIN NAMED DEFENDANT TO WIT: COLLEEN R. ESSICK, BUT WAS UNABLE TO LOCATE THE DEFENDANT IN HIS BAILIWICK. THE SHERIFF THEREFORE RETURNS THE WITHIN REQUESTED COMPLAINT IN CML ACTION (CICA) AS "NOT FOUND" AT 280 WHISKEY SPRINGS ROAD, DILLSBURG, PA 17019. ADDRESS IS IN CUMBERLAND COUNTY. 10/09/2014 I, RICHARD P KEUERLEBER, SHERIFF, WHO BEING DULY SWORN ACCORDING TO LAW, STATES HE MADE DILIGENT SEARCH AND INQUIRY FOR THE WITHIN NAMED DEFENDANT TO WIT: WAYNE L. ESSICK, JR., BUT WAS UNABLE TO LOCATE THE DEFENDANT IN HIS BAILIWICK. THE SHERIFF THEREFORE RETURNS THE WITHIN REQUESTED COMPLAINT IN CIVIL ACTION (CICA) AS "NOT FOUND" AT 280 WHISKEY SPRINGS ROAD, DILLSBURG, PA 17019. ADDRESS IS IN CUMBERLAND COUNTY. SHERIFF COST: $29.00 SOA j RS, October 24, 2014 RICHARD P KE I RLEBER, SHER Affirmed and subscribed to before me this 24TH day of OCTOBER NOTARY 2014 COMMONWEALTH OF PENNSYLVANIA Notarial Seal Shelia E. Cook, Notary Public City of York, York County My Commission Expires Feb. 1, 2017 MEMBER, PENNSYLVANIA ASSOCIATION OF NOTARIES (c) CounlySuite Sherif, Tcieoso0. Inc. SENDER: COMPLETE THIS SECTION • Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. • Print your name and address on the reverse so that we can return the card to you. ■ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: COMPLETE THIS SECTION ON DELIVERY A. Signature X B. Received by (Printed Name) Colleen R. Essick, Inc..d/b/a Cornerstone Contracting 6729 Huntington Hills Terrace Lakeland, EL 33810 [0 Agent 0 Addressee C. Date of Delive D. !s delivery address different from item 1? 0 Yes If YES, enter delivery address below: 0 No A -51a--1 ��ervice Type D Certified Mall® 0 Priority Mall Express'" D Registered 0 Return Receipt for Merchandise D Insured Mail 0 Collect on Delivery 4. Restricted Delivery? (Extra Fee) 0 Yes .2. Article Number TT' sT f r $ F..z 70 0710 0003'' 2210` 43411 (transfer from service laDeq 07 PS Form 3811, July 2013 Domestic Retum Receipt SENDER: COMPLETE THIS SECTION IN Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. • Print your name,and address on the reverse so that we can return the card to you. II Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: Wayne L Essick 6729 Huntington Hills Terrace ' Lakeland, FL 33810 COMPLETE THIS SECTION ON DELIVERY A. Signature X B. Recel -d by (Printed Name) 0 Agent 0 Address C. Dat:;,f)Deliven) D. Is delivery address different from Item 1? 0 Yes If YES, enter delivery address below: 0 No 3. Service Type 0 Certified Mall® 0 Priority Mall Express" ID Registered 0 Return Receipt for Merchandtse o Insured Mall 0 Collect on Delivery 4. Restrictod Delivery? (Extra Fee) 0 Yes 2. Article Number (Transfer from service labe0 - — - 7007-0710 0003 2210 4334._ PS Form 3811, July 2013 Domestic Return Receipt SENDER: COMPLETE THIS SECTION • Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ■ Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailplece, or on the front if space permits, 1. Article Addressed to: Colleen R Essick 6729 Huntington Mills Terracee Lakeland, FL 33810 COMPLETE THIS SECTION ON DELIVERY A. Signature X B. Receiv by (Printed Name) ❑ Agent ❑ Addressee C. Date of Delivery •a5Y9' D. Is delivery address different from rtem 1? 0 Yes If YES, enter delivery address below: 0 No -SCO 1 -Om 3. Service Type ❑ Certified Mail° 0 Priority Mall Express'" ❑ Registered 0 Return Receipt for Merchandise ❑ Insured Mail 0 Collect on Delivery 4. Restricted Delivery? (Extra Fee) ❑ Yes 2. Article Number (Transfer from service labe_ 0U'7: D7];'CI C!"00 X27.0 27 PS Form 3811. July 2013 Domestic Retum Receipt Jason B. Duncan, Esquire Attorney I.D. No.87946 Stone, Duncan, & Linsenbach, P.C. 3 North Baltimore Street Dillsburg, PA 17019 (717) 432-2089 F!LE0-0 F GE THE PROTHONOTARY Z Pi DEC -5 PM 1:06 eUr NNSYLVACOUNTY A TY THOMAS R. MILLER and BERNADETTE M. MILLER, Plaintiffs v. COLLEEN R. ESSICK, INC., d/b/a CORNERSTONE CONTRACTING and COLLEEN R. ESSICK and WAYNE L. ESSICK, JR., husband and wife Defendants : IN THE COURT OF COMMON PLEAS FOR : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 14-5927 JURY TRIAL DEMANDED DEFENDANTS' ANSWER TO PLAINTIFFS' COMPLAINT AND NOW, comes the Defendants by and through their attorney Jason B. Duncan, Esquire of Stone, Duncan, & Linsenbach, P.C. and makes the following Answer to the Complaint of the Plaintiffs of which the following is a statement: 1. Admitted. 2. Admitted. 3. Denied. Defendants Colleen R. Essick and Wayne Essick, Jr., are adult individuals however they currently reside at 6729 Huntington Hills Terrace, Lakeland, FL 33810. Further, it is specifically denied that defendants Collen and Wayne Essick are proper parties in this matter as at all times they were acting in their capacity as agents for the corporation and therefore are immune from individual liability. 4. Admitted. COUNT I NEGLIGENCE 5. Admitted in part, denied in part. It is admitted that defendants as officers of Colleen R. Essick, Inc. d/b/a Cornerstone Contracting submitted a proposal to Plaintiffs to perform construction and remodeling services to Plaintiffs' residence. However, it is denied that defendants Collen R. and Wayne L. Essick, Jr. individually submitted the proposal. On the contrary the proposal is signed by Wayne as an agent for the corporation and defendants maintain that they are improperly being sued in their individual capacities as only the corporation should be liable if at all. By way of further explanation the proposal is in writing and speaks for itself any characterization or interpretation by any party is strictly denied. 6. Denied. The proposal is in writing and speaks for itself any interpretation or characterization by any person is therefore denied. 7. Denied. The allegations in this paragraph are conclusions of law to which no responsive pleading is required. To the extent that a response is deemed required the same is specifically denied. 8. Denied. The allegations in this paragraph are conclusions of law to which no responsive pleading is required. To the extent that a response is deemed required the same is specifically denied. By way of further response it is denied that defendants were negligent or improper in the performance of the work or that it was done in an unworkmanlike manner. (a) Denied. It is specifically denied that the subflooring materials provided by Defendants were substandard and/or installed improperly. By way of further explanation Plaintiffs would not allow defendant to install the floor in the recommended fashion which resulted in reinstalling numerous individual tiles and additional labor costs. (b) Denied. It is specifically denied that the Duraceramic tiles were installed improperly. By way of further answer any issues with the Duraceramic tiles were caused by the Plaintiffs insistence that they be installed in a way that was not recommended. Defendants corrected any issues with the tiles by replacing numerous individual tiles at no additional cost to Plaintiffs despite substantial additional labor expenses by defendants. (c) Denied. It is specifically denied that the kitchen cabinet doors were installed unevenly or improperly at all. By way of further answer, Plaintiffs were responsible for ordering all materials and Defendants were simply to install. Any issue with the cabinet doors was caused by the material chosen by Plaintiffs and not by an improper installation by Defendants. (d) Denied. It is specifically denied that the Defendants only installed a portion of the associated cabinet trim work or that they did so in an uneven or irregular and incompetent manner. 9. Denied. The averments contained in this paragraph are conclusions of law to which no responsive pleading is required. To the extent that a response is deemed required the same is specifically denied. By way of further response it is denied that Defendants performed any defective, improper or unworkmanlike construction. On the contrary the Defendants performed all work in a proper fashion and within industry standards. 10. Denied. The averments of this paragraph are conclusions of law to which no responsive pleading is required. To the extent that a response is deemed required the same is specifically denied. (a) Denied. It is denied that any expense occurred for adjusting or reinstalling cabinet doors and removing and reinstalling kitchen cabinet trim is the responsibility of Defendants. Further, Defendants are without sufficient information to form an opinion as to the veracity of the alleged expense and therefore it is denied and strict proof is demanded at trial. By way of further response at the completion of all work in the kitchen Plaintiffs stated that they were very happy with the work as performed by Defendants. (b) Denied. It is specifically denied that any issues with the Duraceramic kitchen floor are the responsibility of the Defendants. Further, Defendants are without sufficient information to form an opinion as to the veracity of the alleged expense for removing and reinstalling the kitchen floor and therefore the same is denied and strict proof is demanded at trial. By way of further response at the completion of all work in the kitchen Plaintiffs stated that they were very happy with the work as performed by Defendants. 11. Denied as stated. It is specifically denied that the windows or measuring of the windows was ever agreed to as part of a change order and the parties never contracted for such services. Defendants informed Plaintiffs that they were unable to agree to any contract regarding the windows as they were over booked with other work and could not commit to installing windows for the Plaintiffs. 12. Denied. It is specifically denied that Defendants and Plaintiffs ever came to any agreement as to the windows and Defendants never agreed to install the windows at Plaintiff's residence. On the contrary Defendants never agreed to a contract or change order in regards to the windows as they had too many other projects and did not have the time necessary to commit to this project for Plaintiffs. 13. Admitted in part and denied in part. It is specifically admitted that the Defendants measured the rough openings of the windows at the Plaintiffs' insistence even though there was never an agreement between the parties regarding the windows. By way of further response Defendants informed Plaintiffs that they had measured the rough opening for the windows only and provided those measurements to Plaintiffs it is denied that Defendants did so under any Agreement or obligation and it was the responsibility of Plaintiffs to ensure any measurements were accurate or done in a way that would allow Plaintiffs to order windows on their own. 14. Denied. It is specifically denied that Defendants were responsible or agreed to be responsible in any way for the windows or accuracy of any measurements. Rather, the project was never agreed to by Defendants and they supplied the measurements to Plaintiffs of the rough opening as a courtesy to the customer not out of any duty or obligation. 15. Denied. Defendants never agreed to install the windows for Plaintiffs and there was never a contract between the two parties regarding installation of the windows. Defendants specifically informed Plaintiffs that they were too busy with other jobs and therefore did not wish to enter into a contract regarding the windows. Defendants had no duty to Plaintiffs as there was never an agreed upon contract. 16. Denied. As stated above Defendants never agreed to install the windows and never entered into a contract with Plaintiffs. Therefore, Defendants did not abandon a contract as they had no legal duty to install the windows. 17. Denied. It is denied that Defendants had any legal duty to Plaintiffs regarding the windows as they never came to an agreement or entered into a contract regarding the windows. Further, Defendants did provide rough opening measurements to Plaintiffs per their request but did so as a courtesy and not under any legal obligation. Any such measurements provided by Defendants were accurate as to the rough openings for the windows. 18. Denied as stated. It is admitted that if there was a contract Plaintiffs would have a duty to mitigate their damages, however, as Plaintiffs and Defendants never agreed to a contract regarding the windows it is denied that any issue is the responsibility of defendants. Further, Defendants are without sufficient information to determine the veracity of the statements contained in this paragraph and therefore the same are denied and strict proof is demanded at trial. 19. Denied as stated. It is admitted that Defendants are home improvement remodelers and residential contractors. If Defendants had entered into an Agreement with Plaintiffs regarding the windows they would have owed a duty of care based on such state to preform remodeling with a required degree of skill and care possessed by those engaged in this trade. However, as there was never a contract between Plaintiffs and Defendants regarding the windows Defendants did not owe any duty to Plaintiffs. 20. Denied. The averments contained in this paragraph are conclusions of law to which no responsive pleading is required, to the extent that a response is deemed required the same is specifically denied. By way of further response Plaintiffs and Defendants never entered into a contract regarding the windows and therefore Defendants owed no duty to the Plaintiffs. WHEREFORE, Defendants respectfully request that this Honorable Court deny the Plaintiffs demand for relief and enter judgment in their favor. COUNT II — BREACH OF CONTRACT 21. The answers to Paragraphs 1 through 20 are incorporated herein by reference. 22. Denied. The Plaintiffs and Defendants never agreed to a contract regarding the windows and therefore Defendants had no duty to perform. It is specifically denied that the prior agreement regarding the kitchen remodel was not completed or complied with in any way and all work was completed in a workmanlike manner at the time of the completion of the job. 23. Denied. The averments contained in this paragraph are conclusions of law to which no responsive pleading is required, to the extent that a response is deemed required the same are specifically denied. It is denied that Defendants have breached any contract with Plaintiffs as they fully completed all work actually contracted for and did so in a reasonable and workmanlike manner. WHEREFORE, Defendants respectfully request that this Honorable Court deny the Plaintiffs demand for relief and enter judgment in their favor. COUNT III — BREACH OF THE IMPLIED WARRANTY OF REASONABLE WORKMANSHIP 24. The answers to Paragraphs 1 through 23 are incorporated herein by reference. 25. Admitted. 26. Denied. The averments contained in this paragraph are conclusions of law to which no responsive pleading is required, to the extent that a response is deemed required the same are specifically denied. 27. Denied. The averments contained in this paragraph are conclusions of law to which no responsive pleading is required, to the extent that a response is deemed required the same are specifically denied. By way of further response all contracts were performed in a reasonable and workmanlike manner and defendants did not breach any duty they owed to plaintiffs. 28. Denied. The averments contained in this paragraph are conclusions of law to which no responsive pleading is required, to the extent that a response is deemed required the same are specifically denied. WHEREFORE, Defendants respectfully request that this Honorable Court deny the Plaintiffs demand for relief and enter judgment in their favor. COUNT IV — VIOLATION OF THE HOME IMPROVEMENT CONSUMER PROTECTION ACT AND THE PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW ("UTPCPL"), 73 P.S. § 201-1, et seq. 29. The answers to Paragraphs 1 through 28 are incorporated herein by reference. 30. Denied. The Pennsylvania Home Improvement Consumer Protection Act is in writing and speaks for itself any statement by any person regarding its content is specifically denied. 31. Denied. The averments contained in this paragraph are conclusions of law to which no responsive pleading is required, to the extent that a response is deemed required the same are specifically denied. 32. Denied. The statute is in writing and speaks for itself any categorization or statement by any person regarding its content is specifically denied. 33. Denied. The statute is in writing and speaks for itself any categorization or statement by any person regarding its content is specifically denied. 34. Denied. The averments contained in this paragraph are conclusions of law to which no responsive pleading is required, to the extent that a response is deemed required the same are specifically denied. WHEREFORE, Defendants respectfully request that this Honorable Court deny the Plaintiffs demand for relief and enter judgment in their favor. NEW MATTER 35. Colleen Essick and Wayne Essick, Jr., individually, are not proper parties to this suit because the contracts were entered into by Wayne Essick, Jr. as an agent of the corporation. At no point did Wayne Essick, Jr. or Colleen Essick act as an individual or outside of the corporate form. 36. Cornerstone fully complied with all legal obligations and fully performed their duties under the contracts in a reasonable and workmanlike manner. 37. Plaintiffs have sued Defendants for a number of issues that fall outside of the parties' scope of contract; thus, Plaintiffs' claims may be barred in whole or in part for failure to state a claim upon which relief can be granted. 38. Plaintiffs' claims may be barred in whole or in part by Defendants' substantial performance. 39. Plaintiffs' claims may be barred in whole or in part by the equitable doctrines of estoppel, unclean hands, latches, or waiver. 40. Plaintiffs' claims may be barred in whole or in part by the failure of consideration. 41. Plaintiffs' claims may be barred in whole or in part by the fact that there was never a meeting of the minds that resulted in both parties agreeing to the essential terms of the contract. 42. The parties never agreed to a subsequent contract regarding the windows and therefore Plaintiffs' claims must fail as Defendants did not owe any duty to the Plaintiffs regarding the windows. COUNTERCLAIM COUNT I — BREACH OF CONTRACT 43. Paragraph 1-42 are incorporated herein by reference as if set forth in full. 44. Parties entered into a contract for the renovation of the Miller's kitchen in October 2012. 45. Cornerstone Contracting completely performed the renovations as specified by the Agreement. 46. Plaintiffs breached the terms of the parties' contracts by failing to pay the full amount due and owing under the initial contract. To date Plaintiffs still owed defendants eight hundred and fifty dollars ($850) under the original contract that is still due and owing. COUNT II — UNJUST ENRICHMENT 47. Paragraph 1-46 are incorporated herein by reference as if set forth in full. 48. Defendants conferred benefits on Plaintiffs in that Defendants provided material and labor for the renovation of the kitchen in Plaintiffs' home. 49. Plaintiffs appreciated these benefits. 50. Plaintiffs accepted and retained these benefits under circumstances that would be inequitable for Plaintiffs to retain the benefit without payment of value. 51. As a result of the actions and failures of Plaintiffs, Defendants have lost the sum of $850.00. WHEREFORE, Defendants respectfully request this Honorable Court dismiss Plaintiffs' Complaint with prejudice or such other relief as this Court deems just and proper and grant judgment in favor of defendants in the amount of $850.00 on the counterclaim. Respectfully Submitted, J.son B. Dun an, Esq. Attorney ID # 87946 3 North Baltimore Street Dillsburg, PA 17019 Ph. (717) 432-2089 Fx. (717) 432-0158 Attorney for Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this day I have served a true and correct copy of the foregoing Answer to Plaintiffs' Complaint, New Matter and Counterclaim, to: Dated: /2/S // Gerard J. Pisarcik, Esq. Laws, Staruch & Pisarcik 20 Erford Road, Suite 105 Lemoyne, PA 17043 Attorney for Plaintiffs Jason B. Du an, - quire Attorney for Defendants VERIFICATION Understanding that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, Unsworn Falsification to Authorities, I hereby verify that all factual allegations made in the Answer to Plaintiffs' Complaint, New Matter and Counterclaim are true and correct to the best of my knowledge, information and belief. Dated: O Z 2 t �'Z „�,•- Wayne L. Essick, Jr.