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Home My WebLink About05-3693Thomas L. Wenger, Esquire Stephen P. Smith, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 twenger@wwwpalaw.com ssmith@wwwpalaw.com Attorneys for Plaintiffs, Peter S. Joyce Melinda S. Joyce & Hope Joyce, a Minor. PETER S. JOYCE, : IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, & : CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, A MINOR. Plaintiffs V. :NO. OS- 303 e(vl l CHARTER HOMES BUILDING COMPANY Defendant 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 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 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 REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 AVISO LISTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accidn dentro de los prdximos veinte (20) dias despues de la notificacidn de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, [as demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI LISTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI LISTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 Thomas L. Wenger, Esquire Stephen P. Smith, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 twenger@wwwpalaw.com ssmith@wwwpalaw.com Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce & Hope Joyce, a Minor. PETER S. JOYCE, MELINDA S. JOYCE, & HOPE JOYCE, A MINOR. Plaintiffs V. CHARTER HOMES BUILDING COMPANY Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 3693 CIVIL ACTION - LAW COMPLAINT AND NOW, come Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a minor, by and through their attorneys, Thomas L. Wenger, Esquire, and Wix, Wenger & Weidner, P.C., and file this Complaint, stating the following: 1. Plaintiffs, Peter S. Joyce and Melinda S. Joyce, are adult individuals residing at 1118 Wansford Road, Mechanicsburg, Cumberland County, Pennsylvania. 2. The Plaintiffs are owners of the real property identified as 1118 Wansford Road, Mechanicsburg, Pennsylvania, as tenants by the entireties. 3. Plaintiff, Hope Joyce, is a minor child who resides with her parents, Peter S. Joyce and Melinda S. Joyce, who bring this action as natural guardians on behalf of Hope Joyce and as Plaintiffs in their own right. 4. Defendant, Charter Homes Building Company, is a Pennsylvania corporation, whose business address is 114 Foxshire Drive, Lancaster, Pennsylvania, 17601. 5. Jurisdiction and venue are proper in this Court because the Plaintiffs' cause of action and the real estate which gives rise to this claim is situated in Cumberland County, Pennsylvania. 6. By deed, dated May 15, 2001, the Plaintiffs acquired title to the above identified residential property (the "Dwelling") from the Defendant. The deed was recorded in the Cumberland County Recorder of Deed's Office on May 17, 2001, Deed Book 244, Page 838, a copy of the deed is attached and labeled as Exhibit A. 7. The Dwelling had been used by the Defendant as a model home to showcase to prospective purchasers. 8. The Dwelling contained a finished basement (the "Basement") which the Plaintiffs used for recreational purposes and as a play area for their two children. 9. On or about September 18, 2004, rainfall in the area caused the Basement to experience significant flooding. 10.The flooding caused approximately eight inches of water to enter the Basement. 11. The flooding caused extensive damage to the Plaintiffs' personal property which was located in the Basement. 12. In order to repair the damage to the Basement, on or about September 19, 2004, the Plaintiffs retained the services of Tuckey Restoration Inc., ("Tuckey"), a Pennsylvania Corporation located in Carlisle, Pennsylvania. 13. Due to the severity of the flooding, and the resulting damage to the Basement and its furnishings, Tuckey was required to remove the carpet, baseboards and drywall in the Basement. 2 14. While removing these fixtures, Tuckey discovered mold infestation behind several fixtures within the Basement. 15. The mold infestation was located behind fixtures which had been installed by Defendant, and which were in the Basement at the time Plaintiffs purchased the Dwelling. 16. On or about October 20, 2004, the Plaintiffs retained the firm of Analytical Laboratory Services Inc., ("ALSI"), a Pennsylvania corporation located in Middletown, Pennsylvania, which conducted a Fungal Sampling Survey on the Plaintiffs' Basement. 17. The surrey conducted by ALSI, confirmed the existence of mold in the Basement and indicated that the mold had been growing in the Basement for a period of time prior to the flooding which occurred on or about September 18, 2004. 18. Prior to the time the Plaintiffs purchased the Dwelling, the Defendant did not inform the Plaintiffs that the Dwelling had previously flooded, nor did the Defendant inform the Plaintiffs of the extent of the damage caused by the previous flooding. 19. Between the time the Plaintiffs purchased the Dwelling and September 18, 2004, the Defendant did not inform the Plaintiffs that the Dwelling had previously flooded, nor did the Defendant inform the Plaintiffs of the extent of the damage caused by the previous flooding. 20. Through the course of several conversations the Plaintiffs subsequently had with employees of the Defendant, the employees informed the Plaintiffs that the Basement had flooded sometime approximately in the year 2000, which was during the time that the Dwelling was owned by the Defendant and used as a model home. 21. The prior flooding caused the mold to begin growing behind the fixtures in the Basement, where it remained undetected until on or about, September 19, 2004. 3 22. The Plaintiffs have been forced to incur substantial out-of-pocket expenses in their effort to remove the mold infestation, repair the damage from the flooding, and replace the personal property damaged or destroyed by the flooding. 23. The total amount of the cost for removing the mold infestation and repairing the damage from the flooding, and the value of the personal property damaged or destroyed by the flooding totals $21,424.42. An invoice documenting these costs is attached and labeled as Exhibit B. 24. In addition, due to the damage caused by the flooding and the discovery that the Basement is contaminated with mold, the Plaintiffs lost their use and enjoyment of the Basement, and the Plaintiffs and their children have been confined to other areas of the Dwelling. 25. The Plaintiffs are entitled to damages for the loss of the use and enjoyment of the Basement. 26. Prior to discovering that the Basement was infected with mold, the Plaintiffs had established a play area within the Basement for their daughter Hope Joyce. 27. At the time that the Plaintiffs purchased the Dwelling, on or about May 15, 2001, Hope Joyce had not been diagnosed with asthma. 28. Hope Joyce was diagnosed with asthma by a physician in February, 2003. 29. The mold infestation in the Basement caused, contributed to, or exacerbated, Hope Joyce's asthmatic condition. 30. Because of Hope Joyce's asthmatic condition, the Plaintiffs have incurred substantial, out-of-pocket expenses in treating her condition. 31. The projected cost the Plaintiffs will incur in medicating Hope Joyce is $7,500.00. 4 Count 1- Violation of the Unfair Trade Practices and Consumer Protection Law 32. Paragraphs 1 through 31 are hereby incorporated by reference as fully set forth. 33. Under the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), it is unlawful for a seller to engage in fraud or deceptive conduct which creates a likelihood of confusion or of misunderstanding. 34.The Defendant violated the UTPCPL through its acts and omissions regarding the sale of the Dwelling. 35. Defendant, as the builder and owner of the Dwelling, knew or should have known that the Dwelling had flooded in the past and the likelihood that it would flood in the future, and knew or should have known of the damage caused by the prior flooding. 36. The Defendant failed to disclose to the Plaintiffs that the Dwelling had previously flooded while the Dwelling was owned by the Defendant, or that it would likely flood again. 37. The Defendant also failed to disclose to the Plaintiffs the extent, nature and severity of the damage to the Dwelling from the flooding which occurred while the Dwelling was owned by the Defendant. 38. The information that the Defendant failed to disclose was a material fact that affected the value of the Dwelling, as well as the Dwelling's suitability for habitation. 39. Due to the substantial nature of such information, the Defendant had an obligation to disclose this information to the Plaintiffs prior to the time the Plaintiffs purchased the Dwelling. 40. The Defendant either intentionally or negligently withheld this information from the Plaintiffs. 5 41. At the time the Plaintiffs purchased the Dwelling, the Plaintiffs had reasonably relied on the incomplete information given to them by the Defendant regarding the Dwelling. 42. The Plaintiffs did not know, nor did they have reason to know, that the Dwelling had flooded while it was owned by the Defendant; nor did the Plaintiffs know, or have reason to know, of the damage which occurred to the Dwelling from the previous flooding; nor did the Plaintiffs know or have reason to know that the Dwelling would likely flood again. 43. The harm the Plaintiffs have suffered is a direct result of the Defendant's failure to disclose a material fact. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendant for an amount in excess of $50,000.00 plus interest, costs, attorney's fees, treble and punitive damages, and such other relief the Court deems appropriate. Count 2 - Fraudulent Concealment of a Material Defect 44. Paragraphs 1 through 43 are hereby incorporated by reference as fully set forth. 45. As alleged in the preceding paragraphs, the Defendant committed a fraudulent concealment of a material defect through its acts and omissions regarding the sale of the Dwelling to the Plaintiffs. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendant for an amount in excess of $50,000.00 plus interest, costs, attorney's fees, treble and punitive damages, and such other relief the Court deems appropriate. 6 Count 3- Breach of Implied Warranty to Construct Home in a Workmanlike Manner 46. Paragraphs 1 through 45 are hereby incorporated by reference as fully set forth. 47. Defendant warranted that the Dwelling would be built in a workmanlike manner and would thus be suitable for human habitation. 48. The Dwelling was not suitable for human habitation because of the Dwelling's susceptibility for flooding. 49. Defendant was aware that the Dwelling was susceptible to flooding; however the Defendant did not take the necessary and reasonable steps to prevent the Dwelling from flooding in the future. 50. The Dwelling was not suitable for human habitation because the Dwelling was contaminated by a mold infestation. 51. The Defendant knew that the previous flooding had caused damage to the Dwelling, but the Defendant did not take the necessary and reasonable steps to ensure that the Basement was not contaminated with mold. 52. The actions and omissions of the Defendant resulted in a breach of the warranty that the Dwelling was constructed in a workmanlike manner. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendant for an amount in excess of $50,000.00 plus interest, and such other relief the Court deems appropriate. Count 4- Plaintiff Hope Joyce, a Minor v. Defendant 53. Paragraphs 1 through 53 are hereby incorporated by reference as fully set forth. 54. As a result of being diagnosed with asthma, Hope Joyce has experienced substantial pain and suffering on account of her asthmatic condition caused or made worse by the mold infestation in the Basement. 55. Hope Joyce is entitled to damages for the pain and suffering she has experienced as a result of developing asthma. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff, Hope Joyce, and against Defendant for an amount in excess of $15,000.00 plus interest, and such other relief the Court deems appropriate. Respectfully Submitted, Date: 014 WIX, WENGER & WEIDNER By: I ?. -14 A/ 14 1,11 A, Q Z-1 h11-h0 as L. enge , . ID 15489 Stephen P. Smith, Es . ID #93349 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a Minor. vsa o rIM/ g C Two {71{V Gi`LLE7 Made the /? Between 7!_'i Pp ?F 1)EEDS GUS:DE2LA iD COUNTY-FA day of May, 2001., 01 M 17 BPI 9 31 CHARTER HOMES BU"ING COMPANY, a Pennsylvania Corporation (hereinafter called the Grantor), of the one part and MELINDA S. SHOOP and PETER S. JOYCE, Single Persons, as joint tenants with the right of survivorship (hereinafter called the Grantees), of the other pan, vY Itne$Seth That the said Grantor for and in consideration of the sum of THREE HUNDRED SIXTY-FIVE THOUSAND AND 001100 DOLLARS ($365,000.00) lawful money of the United States of America, unto it well and truly paid by the said Grantees, at or before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, has grained, bargained and sold, released and confirmed, and by these presents does grant, bargain and sell, release and confirm unto the said Grantees, their heirs and assigns, as joint tenants with the right of survivorship, ALL THAT CERTAIN tract of land situate in Hampden Township, Cumberland County, Commonwealth of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the eastern dedicated right-of-way line of Wansford Road at the dividing line of Lot No. 531 and 530; thence by line of Lot No. 531, North forty-one degrees sixteen minutes twenty-five seconds East (N 410 16' 25" E), one hundred thirty-five and thirty-five hundredths (535.35') feet to a point; thence by line of lands of The Highlands of Hampden Square, Phase VII, South seventy-seven degrees fifty-four minutes zero amends East (S 770 54' 00" E), one hundred forty-two and ninety-three hundredths (142.93') feet to a point; thence by line of Lot No. 528 and Lot 519, South forty- five degrees twenty-seven minutes fifty-five seconds West IS 45° 27' 55" W), two hundred thirteen and thirteen hundredths (213.13') feet to a point on the eastern right-of-way line of Wansford Road; thence by the right-of-way line of Wansford Road, North forty-four degrees thirty-two minutes five seconds West (N 44° 32' 05" W), niaety-six and sixty-nine hundredths (96.69') feet to a point; thence by same by a curve to the left having a radius of one hundred seventy-five and zero hundredths (175.00') feet and an arc length of twelve and eighty hundredths (12.80') feet to a point at the dividing line of Lot No. 531 and Lot No. 530, the place of BEGINNING. CONTAINING approximately 20,089 Square Fat, BEING Lot No. 530 as shown on the Final Subdivision Plan of The Highlands of Hampden Square, Phase VI, recorded February 26, 1998, in the Recorder of Deeds Office in and for Cumberland County, Pennsylvania, in Plan Book 76, Page 50. UNDER AND SUBJECT nevertheless, to easements, restrictions, reservations, conditions and rights of ways of record or visible upon inspection of premises or as appear of record as set forth in the Recorder of Deeds Office in and for Cumberland County, Pennsylvania, in Misc. Book 340, Page 181 and Misc. Book 370, Page 500. BEING THE SAME PREMISES WHICH Highlands of Hampden Square Partnership, a Pennsylvania General Partnership, by Deed dated March 3, 1998, and recorded March 25, 1998, in the Recorder of Deeds Office in and for Cumberland County, Pennsylvania, in Deed Book 174, Page 78, granted and conveyed unto Charter Homes Building Company, a Pennsylvania Corporation, its successors or assigns, Grantor Having thereon erected a residential dwelling known and numbered as 1118 Wausford Road, Mechanicsburg, PA 17055. Tax Parcel No. I0-16-1056313. 244 - 838 Together with all and singular the buildings improvements, ways, streets, alleys, driveways, passages, waters, water-courses, rights, liberties, privileges, heradionounts and appurtenances, whatsoever unto the hereby granted premises belonging, or in anywise appertaining, and the inversions and remainders, rents, issues, and profits thereof and all the estate, righ£ title, interest, property, claim and demand whatsoever of the said grantor, as well at law as in equity, of, in and to the same. To have and to hold the said lot or piece of ground described hereditaments and premises hereby granted, or mentioned and intended so to be, with the appurtenances, unto the said Grantees, their heirs and assigns, to and for the only proper use and behoof of the said Grantees, their heirs and assigns, forever. And the said Grantor, its successors assigns and administrators do covenant, promise and agree, to and with the said Grantees their hens and assigns by these presents, that the said Grantor, its successors and assigns, all and singular the hereditamens and premises hereby granted or mentioned and intended so to be, with appurtenances unto the said Grantees their heirs and assigns, against the said Gramor, its successors and assigns, and against all and every person and persons whosoever lawfully claiming or to chum the same or any part theeeo£ by, from or under or any of them, shall and will SPECIALLY WARRANT and forever DEFEND. In Witness Whereof, the party of the first has part hereunto set its hand and seal. Dated the day bad year first above written. Sealed and Delivered IN THE PRESENCE OF US: CHARTER MES BUELDING COMPANY By: (SEAL) FRANCES G. S PADEL VICE PRESIDENT Commonwealth of Pennsylvania County of Lancaster ATTEST: B -(SEAL) FRANCES G. ST EL, SECRETARY 0: Orr this the day of May, 2001 before rtre, the undersigned Notary Public appeared FRANCES Q STADEL, who admowledged herself to be the Vice President and Secretary ofCHARTER HOMES BUHAING COMPANY, a Pennsylvania Corporration, and that she as such officer being authorized to do so, executed the foregoing instrument for the purposes therein comeuted, by signing the mume of the corporation by herself as Vice President and Secretary. I hereunto set my hand and official seal. Notarial Seal Notary Public Deborah F. Niulay, Notary Public MaahMrn trip. Lerawstar Corn My co mba kmlroa sw, 3.20ty04 y, McR1?B/.PonMYNanaA49odalbndFbtanee ...,.?..x.4'ae.M?'" _. ?rJ•' TC]YnS CmTT gJ H [J T The address of the aboveumnediww'j 0 4 8 e c 0 . u S a as au .. ii ,R is: N 1118 Wansford Road... hanicsbur A 17055 R rt? On behalf of the Gr s 244 PACE 839 " tj W ' uu?? m iR . ' . . . . . `e'o Peter & Melinda Joyce Property 1118 Wansford Road Basement Repair and Reconstruction: Services/Materials for Removal Repair Reconstruction Replacement R. F. Fager Portable pump 9119104 $122.17 Plastic storage bins to replace Big Lots wet boxes 9118/04 $100.37 Chapman Fuel Oil Furnace inspection 12!7/04 $55.00 Chapman Fuel Oil Furnace cleanup/repair 1/3/05 $347.75 Tuckey Restoration Damage removal/drying 10/18/04 $2,44431 Analytical Lab Services Data collection & analysis 11130/04 $473.64 B. Hamilton Electric Electrical repairs 12/15104 $228.00 Just Finished Carpentry Drywall/baseboard repair 12117104 $1,450.00 Paul O'Brien Painting Repainting 12/30104 $952.61 Home Depot Paint 12122104 $113.99 Wilbur Plumbing & Heating Install 2nd sump pump 113105 $2,395.00 innovative Closets New shelves to replace 5/26/05 damaged built-in (back wall) & 7/19/05 $3,005.00 R & A, Inc. New shelves to replace damaged built-in (front wall) 12130/04 $480.00 Essis & Sons Carpeting New carpet 12/30104 $5,177.00 Barstools & Billiards Re-leveling pool table' $100.00 0. Sweigard Furniture Cleaning Upholstery cleaning (couch) 1112/05 $265.00 N. B. Liebman Mattress to replace damaged 1/22105 sofa bed mattress & 4124105 $178.18 Wilbur Plumbing & Heating Extend sump pump discharge pipe` 213/05 $879.00 Sub-total $18,767.42 " Estimate Personal Property Loss Computer desk $450.00 Games, books, videos, blank videotapes, puzzles, toys, stuffed animals, children's dress-up clothes, markerslcrayons, paper, art supplies, Christmas $950.00 Paper shredder (new) $75.00 Brass floor lamp $200.00 Desk (2nd) $750.00 Wood bottom shelves $50.00 Sub-total $2,475.00 Total Hard Costs $21,242.42 VERIFICATION I, Peter S. Joyce, Plaintiff in the foregoing Complaint, I have read the foregoing Complaint and hereby affirm and verify that it is true and correct to the best of my personal knowledge, information and belief. I verify that all of the statements made in the foregoing Complaint are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: Peter S. Joyce VERIFICATION I, Melinda S. Joyce, Plaintiff in the foregoing Complaint, I have read the foregoing Complaint and hereby affirm and verify that it is true and correct to the best of my personal knowledge, information and belief. I verify that all of the statements made in the foregoing Complaint are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S.A. Section 4904. relating to unsworn falsification to authorities. Date: ?I ? t t ? ?DS Melinda S. Joyce VERIFICATION We, Peter S. Joyce and Melinda S. Joyce, as parents and guardians of Hope Joyce, minor child, a named Plaintiff in the foregoing Complaint, have read the foregoing Complaint and hereby affirm and verify that it is true and correct to the best of our personal knowledge, information and belief. We verify that all of the statements made in the foregoing Complaint are true and correct and that false statements made therein may subject us to the penalties of 18 Pa.C.S.A. Section 4904. relating to unsworn falsification to authorities. Date: ll O? Peter S. Joyce, as parent an ardian of Hope Joyce, Minor Child Date: 'A ? S . r. Melinda S. Joyce, as par nt i d guardian of Hope Joyce, ' o ild ?`` ?:.J c, r } c? - ,. -?, ? ?r _ ' ? -, -? ??,?.? - C> ? ? ` . ? ? _ <??, ' ? 1 G- z <--, _ ?? .. .... ^ c:?-- .: 1 No.: 05-3693 HARTMAN UNDERHILL & BRUBAKER LLP By: Robert M. Frankhouser, Jr. Attorney I.D. #29998 Attorneys for Defendant: 221 East Chestnut Street Charter Homes Building Company Lancaster, PA 17602 Phone: (717) 299-7254\Fax: (717) 299-3160 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW PETER S. JOYCE and MELINDA S. JOYCE & HOPE JOYCE, a Minor, Plaintiffs ORIGINAL VS. CHARTER HOMES BUILDING COMPANY, Defendant No.: 05-31593 PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Robert M. Frankhouser, Jr., Esquire and the law firm of Hartman Underhill & Brubaker LLP, 221 East Chestnut Street, Lancaster, Pennsylvania 17602 as counsel for Defendant Charter Homes Building Company in the above-referenced matter. 00411680.1 No.: 05-3693 HARTMAN UNDER-HILL & BRUBAKER LLP i By: ?._ Ro rt M. Fr, nkhouser, Jr. Attorney I.D. #29998 Attorneys for Charter Homes Building Company Date: August 30, 2005 221 East Chestnut Street Lancaster, PA 17602 (717) 299-7254 00411680.1 No.: 05-3693 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day serving the foregoing Praecipe to Enter Appearance upon the person and in the manner indicated below: Service by First Class Mail, addressed as follows: Thomas L. Wenger, Esquire Stephen P. Smith, Esquire! Wix, Wenger & Weidner 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 HARTMAN UNDERHILL & BRUBAKER LLP By: Robert M. F¢ankhouser, Jr., Esquire Attorney I.D. #29998 Attorneys for Charter Homes Building Company Date: August 30, 2005 221 East Chestnut Street Lancaster, PA 17602 (717) 299-7254 00411690.1 3 ?, <-? ,--, a ?; T; ?, - ? -T ;;, r °z '! Y _) s,: ?.. 1 C J 1 C, _??t C a --. No.: 05-3693 HARTMAN UNDERHILL & BRUBAKER LLP By: Robert M. Frankhouser, Jr, Attorney I.D. #29998 Attorneys for Defendant: 221 East Chestnut Street Charter Homes Building Company Lancaster, PA 17602 Phone: (717) 299-7254\Fax: (717) 299-3160 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW PETER S. JOYCE and MELINDA S. JOYCE & HOPE JOYCE, a Minor, Plaintiffs ORIGINAL Vs. CHARTER HOMES BUILDING COMPANY, Defendant No.: 05-3693 DEFENDANT'S ANSWER TO PLAINTIFFS' COMPLAINT 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. The allegations contained in Paragraph 5 are conclusions of law and require no response. 6. Admitted. 00411663.1 1 No.: 05-3693 7. Denied. Prior to May 15, 2001, the Defendant constructed a home at the property located 1118 Wansford Road, Mechanisburg, Cumberland County, Pennsylvania. The home was used as a sales facility for the development within which it was located. 8. Denied as stated. The home contained a finished basement. After reasonable investigation, the Defendant is without knowledge or information concerning the remaining allegations contained in Paragraph 8. Therefore, specific proof, if relevant, is demanded at trial. 9. Denied as stated. On or about September 17 and 18, 2004, the Mechanicsburg area of Cumberland County experienced extraordinary rainfall due to Hurricane Ivan. 10. - 17. After reasonable investigation, the Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraphs 10 through 17. Therefore, specific proof, if relevant, is demanded at trial. 18.-19. Denied. It is specifically denied that the home constructed at 1118 Wansford Road had previously flooded. At no time during of Defendant's ownership of the property did the property experience the extraordinary rainfalls 00411683.1 2 No.: 05-3693 such as those caused by Hurricane Ivan on September 17 and 18, 2004. 20. Denied. The allegations contained in Paragraph 20 are specifically denied for the reasons set forth in answer to Paragraphs 18 and 19. 21. - 31. The allegations contained in Paragraphs 21 through 31 are conclusions of law and are therefore deemed to be denied. To the extent that an answer is required, the answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraphs 21 through 31. Therefore, specific proof, if relevant, is demanded at trial. COUNTI Violation of the Unfair Trade Practices and Consumer Protection Law 32. Paragraphs 1 through 31 are hereby incorporated by reference. 33. - 43. The allegations contained in Paragraphs 33 through 43 are conclusions of law and are therefore deemed to be denied. After reasonable investigation, the answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraphs 33 through 43. Therefore, specific proof, if relevant, is demanded at trial. COUNT2 Fraudulent Concealment of a Material Defect 00411683.1 3 No.: 05-3693 44. Paragraphs 1 through 43 of this Answer are incorporated herein by reference. 45. The allegations contained in Paragraph 45 are inaccurate conclusions of law and are therefore deemed to be denied. To the extent that an answer is required, the allegations contained in Paragraph 45 is are specifically denied for the reasons set forth in this Answer. COUNT3 Breach of Implied Warranty to Construct Home in a Workmanlike Manner 46. Paragraphs 1 through 45 of this Answer are hereby incorporated by reference. 47. - 52. The allegations contained in Paragraphs 47 through 52 are inaccurate conclusions of law and are therefore deemed to be denied. To the extent that an answer is required, the answering Defendant is without knowledge or information insufficient to form a belief as to the truth of the averments contained in Paragraphs 47 through 52. Therefore, specific proof, if relevant, is demanded at trial. 00411683.1 4 No.: 05-3693 COUNT4 Plaintiff Hope Joyce, a Minor vs. Defendant 53. Paragraphs 1 through 53 of this Answer are hereby incorporated by reference. 54. - 55. After reasonable investigation, the answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraphs 54 and 55. Therefore, specific proof, if relevant, is demanded at trial. To the extent that an answer is required, the damages, if any, sustained by Hope Joyce were caused, in whole and in part, by the carelessness, recklessness and negligence of Plaintiffs Peter S. Joyce and Melinda S. Joyce, together with the independent contractors of the Joyces. NEW MATTER 56. On or about September 17 and 18, 2004, the Mechanicsburg area of Cumberland County experienced extraordinary rainfall due to Hurricane Ivan. 57. The damages, if any, alleged by the Plaintiffs to be suffered by Plaintiff Hope Joyce were caused, in whole or in part, by the conduct of Plaintiffs' contractor who, upon discovery of mold in the basement, failed to take proper precautions to isolate such mold spores, and failed to prevent the migration of 00411683.1 5 No.: 05-3693 such mold spores. 58. The damages, if any, alleged by the Plaintiffs to be suffered by Plaintiff Hope Joyce were caused by Peter and Melinda Joyce who, upon discovery of mold in the basement, failed to take proper precautions to prevent migration of such mold spores, failed to isolate the mold spores and failed to prevent the exposure of their daughter to such mold spores. 59. The Plaintiffs' damages, if any, were caused by an act of God, specifically, the extraordinary rainfall caused by Hurricane Ivan. WHEREFORE, Defendant Charter Homes Building Company demands judgment against Peter S. Joyce, Melinda S. Joyce and Hope Joyce, together with payment of costs. Date: September I , 2005 HARTMAN DERHILL & BRUBAKER LLP By: Robert M. FrQnkhouser, Jr. Attorney I.D. #29998 Attorneys for Charter Homes Building Company 221 East Chestnut Street Lancaster, PA 17602 (717) 299-7254 00411683.1 6 No.: 05-3693 VLMEWATION I hereby verify that I am the Vice President of Operations of Charter Homes Building Company; that as such I am authorized to make this verification; and that the information set forth in the foregoing Az*wer of Chatter Homes Building Company to Plaintiffs' Complaint is true and correct to the beat of my knowledge, information and belief. I understand that any false statements contained herein are subject to the penalties of 18 P&C.S. §4904, relating to unswom falsification to authorities. Jim B Date: .2005 00411613.1 7 TOTAL P.02 No.: 05-3693 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day serving the foregoing Defendant's Answer to Plaintiffs' Complaint upon the person and in the manner indicated below: Service by First Class Mail, addressed as follows: Thomas L. Wenger, Esquire Stephen P. Smith, Esquire Wix, Wenger & Weidner 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 HARTMAN & BRUBAKER LLP By: M. Date: September 1-, 2005 Jr., Esquire `Attorney I.D. #29998 Attorneys for Charter Homes Building Company 221 East Chestnut Street Lancaster, PA 17602 (717) 299-7254 00411683.1 8 v? C? .C SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-03693 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND JOYCE PETER S ET AL VS CHARTER HOMES BUILDING COMPANY R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: CHARTER HOMES BUILDING COMPANY but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of LANCASTER serve the within COMPLAINT & NOTICE County, Pennsylvania, to On August 17th , 2005 , this office was in receipt of the attached return from LANCASTER Sheriff's Costs: So answe Docketing 18.00 Out of County 9.00 Surcharge 10.00 R Thomas Kline Lancaster Cc 38.53 Sheriff of Cumberland County nn J. J. 08/17/2005 WIX WENGER AND WEIDNER Sworn and subscribed to before me this RA day of446 L,51 bb5 A.D. 4 P r9.t-KClnd t a r SHER! FFT S OFFIU; - 50 NORTH DUKE anat.=T.., _ -11-t I LR PENNSYLVANIA 17608-3480 a (717) 299-8200 SHERIFF SERVICE PLEA SE TYPE OR PIS Nl` Y,v M PROCESS RECEIPT, and AFFIDAVIT OF RETURN P Db NbT t7ETACM- " p 7'PLAINTIFF/S/ ---- 2 COURT NUMBER _ I Peter S. Joyce et al 05-3693 civil m 3 DEFENDANT/S/ 4 TYPE OF WRIT OR COMPLAINT Charter Hanes Building Company Notice and Complaint p SERVE 5 NAME OF INDIVIDUAL. COMPANY. CORPORATION -C.. TO E E SERVED 3 Charter Hanes Building Company 1:13 m 6 ADDRESS IStreel or RFD. Apartment No C ity, Boro, Twp Slate and ZIP Code) AT 114 Foxshire Drive Lancaster, PA 17601 7. INDICATE UNUSUAL SERVICE: ? DEPUTIZE ? OTHER n anhprl and Now, .T111v 71 20 05 , I, SHERIFF OF ®AB&16R COUNTY, PA., do hereby deputize the Sheriff of LancaFter Count to exec te thi W it L tur th f l _ y u s r a -fR ?l e n ereo acc? rdjd? to aw. This deputation being made at the request and risk of the plaintiff. ,L,p?/ Please mail return of service to Cumberland County Sheriff. Thank you. NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B, WAIVER OF WATCHMUN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman. in custody of whomever is found in possession , after notifying person of Levy orattachment, without liability on the pad of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriff's sale thereof. B. SIGNATURE of ATTORNEY or other ORIGINATOR 10. TELEPHONE NUMBER 11. DATE THOMAS L. WENGER, ESQ. 717-234-4182 7/21/05 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (Th a area moat I CUMBERLAND CO. SHERIFF be completed if notice is to be mailed) ONE COURTHOUSE SQ. CARLISLE, PA. 17013 v.r+v.. aius.vo s vn vxac yr aacnrrr rlnLi ? 4V P4V 1 eYllll C OL:LVifY 1 RW LIIYC 13.1 acknowledge receipt of the writ NAME of Authorized LCSO Deptty or Clerk 14. Date Received 15 Expiration/Hearing date orcompfaintasindicatedabove. _ JACKIE MICCIQHE 71-.'-299-8200 7/25/05 I 8/22/05 16 1 hereby CERTIFY and RETURN that I ? have personally served, IX have legal evidence of service as shown in -Remarks', O have executed as shown in Remarks". the writor complaint described on the moll tlual, r;o ny, torpor lion. etc.. at the address shown above oron the individual ,company .cor- potation, etc.. at the address inserted below by handing a TRUE antl ESTED CC PY thereof. 17. ? I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc., named above. (See remarks below) 18 Na?me and title o `?ividual serve ,(of\.ynot shown above) (RP)alionshir to Def anda t) 19 ? No Service See Rerturks Below (No. 30) 20. Address of Ohere se, State and Zip Code) own above) 24. Advance Costs ' 25. Service Costs I 26. Notary Can 27 Mileage/Postage/ F. 28 Total Costs 29. COST DUE OR REFUND R I L F 150.00 36.50 I I I L S.T.A. 31. AFFIRMED and subscribed to before me this 34. day of 37 0 1. WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY - Shentfs Office 4. EILUE - Sheriff's a all HARTMAN UNDERHILL & BRUBAKER LLP Robert M. Frankhouser, Jr. Attorney I.D. No. 29998 221 East Chestnut Street Attorneys for Defendant Lancaster, PA 17602 Charter Homes Building Company (717) 299-7254 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Peter S. Joyce and Melinda S. Joyce, & Hope Joyce, a Minor Plaintiff V. : CI-05-3693 Charter Homes Building Company, Defendant NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: Thomas L. Wenger, Esquire Defendant, Charter Homes Building Company, intends to serve a subpoena on Tuckey Restoration Inc. identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned objections to the subpoena. If no objections are made, the subpoena may be served. HARTMAN Date: & BRUBAKER LLP By: /' R ert M. Frankhouser, Jr. Ac torney I.D. #29998 Attorneys for Defendant 00429766.1 Commonwealth of Pennsylvania County of Cumberland SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Peter S. Joyce and Melinda S. Joyce & Hope Joyce, a Minor Plaintiffs Docket No. 05-3693 vs Charter Homes Building Company Defendants To. Tuckey Restoration Inc. 12 Stover Drive Carlisle, PA. 17013-9782 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: a copy of your complete file which refers or relates in any way the Joke residence at 1118 Wansford Road, Mechanicsburg, PA. including but not limited to conies of anv and all correspondence, memorandums, documents, photographs and employee logs whether stored digitally or hard copy. at HARTMAN UNDERHILL & BRUBAKER LLP 221 East Chestnut Street Lancaster PA. 17602 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Robert M. Frankhouser, Esquire - t- tt??< Nuns 29998 -1&fjcattonNumTr 221 East Chestnut Street ass Lancaster, PA. 17602 (717) 299-7254 1'e eP ane .m Der Attomeyfor Defendants BY THE COURT: BY (Prothonotary) Seal of the Court 00429755.1 HARTMAN UNDERHILL & BRUBAKER LLP Robert M. Frankhouser, Jr. Attorney I.D. No. 29998 221 East Chestnut Street Attorneys for Defendant Lancaster, PA 17602 Charter Homes Building Company (717) 299-7254 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Peter S. Joyce and Melinda S. Joyce, & Hope Joyce, a Minor Plaintiff V. : CI-05-3693 Charter Homes Building Company, Defendant NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: Thomas L. Wenger, Esquire Defendant, Charter Homes Building Company, intends to serve a subpoena on Analytical Laboratory Services, Inc. identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned objections to the subpoena. If no objections are made„ the subpoena may be served. & BRUBAKER LLP Date: 2-11aJ2DOr- By: M. Ffankhouser, Jr. y I.D. #29998 vs for Defendant 00429765.1 Commonwealth of Pennsylvania County of Cumberland SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Peter S. Joyce and Melinda S. Joyce & Hope Joyce, a Minor Plaintiffs Docket No. 05-3693 Vs Charter Homes Building Company Defendants To: Analytical Laboratory Services, Inc. 3544 North Progress Avenue, Suite 100 Harrisburg, PA. 17110 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: a cony of your complete file which refers or relates in anv wav to the Joyce residence at 1118 Wansford Road Mechanicsburg PA including but not limited to copies of any and all correspondence memorandums documents photographs, tests and test results whether stored digitally or hard copy. at HARTMAN UNDERHILL & BRUBAKER LLP 221 East Chestnut Street. Lancaster. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Robert M FrNpouser Esquire Attorneys am 29998 Td-en-7 catron um er 221 East Chestnut Street ress Lancaster. PA. 17602 X717)299-7254 fie ephone um er Attomeyfor Defendants BY THE COURT: Date: BY (Prothonotary) Seal of the Court 004297571 PROOF OF SERVICE I HEREBY CERTIFY that I am this day serving the foregoing document upon the persons and in the manner indicated below. Service by First Class Mail, addressed as follows: Thomas L. Wenger, Esquire WIX, WENGER & WEIDNER 508 North Second Street, P. O. Box 845 Harrisburg, PA. 17108-0845 Dated: 3 3.20Ob HARTMAN UNDERHILL & BRUBAKER LLP By: bert M. Orankhouser, Jr. ttorney I.D. #29998 Attorneys for Defendant 221 East Chestnut Street Lancaster, PA 17602 (717) 299-7254 OOO40959A `_ r i-? ? a .J. Thomas L. Wenger, Esquire Stephen P. Smith, Esquire Wix, Wenger & Weidner P.C. 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce & Hope Joyce, a Minor. PETER S. JOYCE, IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, & CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, A MINOR. Plaintiffs V. CHARTER HOMES BUILDING COMPANY NO. 05-3693 Defendant : CIVIL ACTION - LAW PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT FOR FAILURE TO ANSWER PLAINTIFFS' INTERROGATORIES AND NOW, come Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a minor, by and through their attorneys, Stephen P. Smith, Esquire, and file this Motion for Sanctions against the Defendant, Charter Building Company, and in support thereof states as follows: 1. Plaintiffs instituted this action against the Defendant, Charter Homes Building Company, on July 21, 2005. Plaintiffs alleged causes of action against the Defendant for Violation of the Unfair Trade Practices and Consumer Protection Law, Fraudulent Concealment of a Material Defect, Q , and Breach of Implied Warranty to Construct Home in a Workmanlike Manner. 2. The pleadings are closed. 3. On February 3, 2006, the Plaintiffs served their First Set of Interrogatories (the "Interrogatories") on counsel for the Defendant. A true and correct copy of the Interrogatories is attached hereto as Exhibit A and is incorporated herein by reference as if fully set forth. 4. The Defendant's answers were due on March 6, 2006, pursuant to Pa. R. C. P. 4006(a)(2). 5. To date, the Defendant has failed and refused to respond to the Interrogatories. 6. By letter dated May 31, 2006, the Plaintiffs, through their attorney, sent a certified letter to the Defendant's attorney, informing the Defendant's attorney that a Motion for Sanctions would be filed if the Interrogatories were not answered within thirty (30) days. A true and correct copy of the letter from May 31, 2006, is attached hereto as Exhibit B. 7. On June 1, 2006, the Defendant's attorney received the Plaintiffs' attorney's letter from May 31, 2006, as evidence by the return receipt card, a copy of which is attached hereto as Exhibit C. 8. It has been forty-two (42) days since the Defendant's attorney was informed of the Plaintiffs' intent to file a Motion for Sanctions if the Interrogatories were not answered. 4 1 . 9. The Plaintiffs have had to incur additional attorney's fees in their attempt to receive the information set forth in the Interrogatories, in the approximate amount of $475.00. Attached hereto as Exhibit D is a summary of the expenses and attorney's fees incurred by the Plaintiffs. WHEREFORE, the Plaintiffs respectfully request this Honorable Court to grant the following relief: a) Hold the Defendant in contempt for failure to serve answers to the Interrogatories; b) Enter judgment against the Defendant, or in the alternative, require the Defendant to pay sanctions in an amount to be determined by the Court, per day, until the Defendant serves full and complete answers to the Interrogatories; c) Direct the Defendant to reimburse the Plaintiffs for their attorney's fees incurred in connection with the Defendants failure to answer the Interrogatories; d) Grant any other relief as the Court deems appropriate. Respectfully Submitted, WIX, WENGER & WEIDNER Date: July 13, 2006 By: zz- la I?Lh Thomas L. Wenger, sq. ID #15489 Stephen P. Smith, Esq. ID #93349 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a Minor. 4-? . WIX, WENGER & WEIDNER A PROFESSIONAL CORPORATION RICHARD H. WIX ATTORNEYS AT LAW THOMAS L WENGER 508 NORTH SECOND STREET DEAN A. . WEIDNER DEAN STEVEN C. WILDS POST OFFICE BOX 845 THERESA L. SHADE wuc • HARRISBURG PENNSYLVANIA 17108-0845 DAVID R. GETZ R , STEPHEN J. DZURANIN STEVEN M. WILLIAMS JEFFREY C. CLARK (717) 234-4182 PETER G. HOWLAND STEPHEN P. SMITH FAX (717) 234-4224 KATHRYN L. WIX WWW.WWWpal8W.CD111 •aa M? Mrutlwe.tl Robert M. Frankhouser, Jr., Esquire Hartman Underhill & Brubaker LLP 221 East Chestnut Street Lancaster, PA 17602-2782 February 3, 2006 4705 DUKE STREET HARRISBURG. PA 171093099 (717) 552-0455 FAX (717) 5528290 RE: Peter S. & Melina S. Joyce & Hope Joyce, a Minor v. Charter Homes Buildina Co. Docket No.: 05-3693 Our File No.: 7863 - 11153 Dear Mr. Frankhouser: Enclosed for service is Plaintiffs' First Set of Interrogatories to Defendant. Answers to Plaintiffs' Interrogatories are due within twenty days of receipt. TLW/hjob cc: Peter and Melinda Joyce Wix, We ge & Weidner By'as L. er )(tg ._ EXHIBIT A (Page 1 of 23) .a , Thomas L. Wenger, Esquire Stephen P. Smith, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 twenner(&wwwpalaw.com ssmithAwwwPaIaw.com Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce & Hope Joyce, a Minor. PETER S. JOYCE, MELINDA S. JOYCE, & HOPE JOYCE, A MINOR. Plaintiffs V. CHARTER HOMES BUILDING COMPANY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3693 : CIVIL ACTION - LAW AND NOW, come Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a minor, by and through their attorneys, Thomas L. Wenger, Esquire, Stephen P. Smith, Esquire, and Wix, Wenger & Weidner, P.C., and, serve and request Defendant to answer, under oath, the following Interrogatories. Answers shall be signed by Defendant and shall be served on Plaintiffs within thirty (30) days from the date hereof. If the information requested in an Interrogatory is wholly or partly contained in documents, you may answer the Interrogatory by attaching a copy 1 EXHIBIT A (Page 2 of 23) of the documents to your answers to these Interrogatories to the extent that the documents contain the requested information. If there are any objections to any Interrogatory, you shall identify fully the substance of, and the legal authority for, the objections and provide sufficient information to substantiate the objections. Definitions As used herein, the following terms shall have the meanings set forth below: (a) The term "Defendant" means and includes Charter Homes Building Company, its attorneys, agents, representatives, and all other persons in privity with Charter Homes Building Company, with respect to the matters herein inquired about. (b) The term "Plaintiff' means and includes Peter S. Joyce, Melinda S. Joyce and Hope Joyce, their attorneys and agents, and all other persons in privity with Peter S. Joyce, Melinda S. Joyce and Hope Joyce with respect to the matters herein inquired about. (c) The term "Residence" means and includes the dwelling at 1118 Wansford Road, Mechanicsburg, Pennsylvania. (d) The term "documents," as used herein, means and includes, without limitation, letters, correspondence, bulletins, computation sheets, estimates, warranties, specifications, instructions, advertisements, literature, work assignments, reports, memoranda, memoranda of conversations, telephone messages, notes, notebooks, drafts, data sheets, work sheets, contracts, agreements, memoranda of agreements, assignments, licenses, minutes, minute books, resolutions, unanimous consents, books of accounts, orders, invoices, packing slips, statements, bills, checks, check stubs, 2 EXHIBIT A (Page 3 of 23) vouchers, photographs, drawings, charts, catalogs, brochures, job books, job descriptions, bank books, financial statements, financial or accounting records, and all other written or printed material of whatsoever kind known to or in possession or control of Respondent. (e) The term "persons," as used herein, means and includes individuals, proprietorships, associations, partnerships, corporations, groups, organizations, governmental bodies and joint ventures. (f) "Identify" or "Identity" means when used in reference to -- i. A natural person, his or her: 1. full name; and 2. present or last known residence and employment address (including street name and number, city or town, and state or country); ii. A document: 1. its description (e.g. letter, memorandum, report, etc.), title and date; 2. its subject matter; 3. its author's identity; 4. its addressee's identity; 5. its present location; and 6. its custodian's identity; iii. An oral communication; 1. its date; 2. the place where it occurred; 3. its substance; 4. the identity of the person who made the communication; 3 EXHIBIT A (Page 4 of 23) 5. the identity of each person to whom such communication was made; and 6. the identity of each person who was present when such communication was made; iv. A corporate entity: 1. its full corporate name; 2. its date and place of incorporation, if known; and 3. its present address and telephone number; v. Any other context: a description with sufficient particularity that the thing may thereafter be specified and recognized, including relevant dates and places, and the identification of relevant people, entities, and documents. (g) The masculine terms contained herein shall be construed to include the feminine and/or neuter, as the content requires and vice versa. (h) Words in the singular shall include the plural thereof, and vice versa. 4 EXHIBIT A (Page 5 of 23) INTERROGATORIES 1. Identify the name, address, and telephone number of each person who has knowledge of facts concerning the circumstances related to any of the claims of Plaintiffs in this case. 5 EXHIBIT A (Page 6 of 23) N 2. If you know of anyone who has given any statement concerning this action or its subject matter, state: a. Identify the name, address, and telephone number of such person; b. When, where, by whom, and to whom each statement was made, and whether it was reduced to writing or otherwise recorded, and if in writing or otherwise recorded, the identity of any person who has custody of any such statement. 6 EXHIBIT A (Page 7 of 23) 3. Identify the name, address, and telephone number of each person you intend to call as a non-expert witness at the trial in this case, and for each person identified state your relationship with the witness and the substance of the facts to which the witness is expected to testify. 7 EXHIBIT A (Page 8 8 o of 23) N 4. Identify the name, address, and telephone number of each expert you intend to call as a witness at the trial in this case, and for each expert state: a. The subject mater about which the expert is expected to testify; and b. The substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (You may file as your answer to this interrogatory the report of the expert or have the interrogatory answered by your expert.) B EXHIBIT A (Page 9 of 23) 5. Identify all exhibits, books, magazines, manuals or other documents that you intend to use at the trial in this case. 9 EXHIBIT A (Page 10 of 23) 6. If you know of the existence of any photographs, motion pictures or video recordings, state: a. The nature or type of such item; b. The date on which such item was made; c. The identity of the person who prepared or made each item; and d. The subject that each item represents or portrays. 10 EXHIBIT A (Page 11 of 23) N 7. If you intend to use any admission(s) of a party at the trial in this case, identify such admissions(s). 11 EXHIBIT A (Page 12 of 23) 8. Provide the date when the construction of the Residence was completed. EXHIBIT A (Page 13 of 23) 9. Provide the dates when the Residence was used as a sales facility by the Defendant. 13 EXHIBIT A (Page 14 of 23) H Y 10. Does Defendant deny that the Residence experienced water exposure prior to the date that the Plaintiffs purchased the Residence from the Defendant? If so, state in detail the basis for this contention. 14 EXHIBIT A (Page 15 of 23) A . 11. Identify, by date, and time, each occasion Defendant had discussions with Plaintiffs or with any other individuals concerning the incident described in Interrogatory No. 10. 15 EXHIBIT A (Page 16 of 23) 12. Identify the name, address, and telephone number of any individuals which Defendant discussed the incident described in Interrogatory No.10. 16 EXHIBIT A (Page 17 of 23) N ? 13. In regards to the incident described in Interrogatory No.10, state in detail: a. The date on which the incident occurred; b. The date which the incident was discovered; c. The portion(s) of the Residence affected by the incident; d. The names, address and telephone number of any person who may have knowledge of the incident; e. The cause(s) of the incident; f. Whether the sump pump in the basement of the Residence was properly installed and working correctly at the time the incident occurred; g. The length of time in which the water remained in the Residence before it was completed removed; h. Any building materials or fixtures which were damaged due to the water exposure; i. Any building materials or fixtures which were replaced due to the water exposure; 17 EXHIBIT A (Page 18 of 23) What, if any, procedures were taken to prevent mold from growing in the Residence following the incident. EXHAIT A (Page 19 of 23) 14. Provide the date that Defendant installed a battery back up in the sump pump located in the Residence, and state in detail the reason for installing said battery back up. 19 EXHIBIT A (Page 20 of 23) 15. State whether any other dwelling within the development in which the Residence is located, experienced water exposure prior to the date that the Plaintiffs purchased the Residence from the Defendant. 20 EXHIBIT A (Page 21 of 23) 16. If any other dwelling within the development in which the Residence is located experienced water exposure, identify the name, address, and telephone number of any individuals having knowledge concerning the events. 21 EXHIBIT A (Page 22 of 23) l i e 17. Provide the full name and last know address and telephone number for Defendant's former employees, Jim Vance and Dave Tyndall. 22 MIBIT A (Page 23 of 23) RICHARD H. W IX THOMAS L. WENGER DEAN A. WEIDNER STEVEN C. WILDS THERESA L. SHADE WIX' DAVID R. GETZ STEPHEN J. DZURANIN STEVEN M. WILLIAMS JEFFREY C. CLARK PETER G. HOWLAND STEPHEN P. SMITH KATHRYN L. WIX - AM I~Md95df - W85- WIX, WENGER & WEIDNER A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 508 NORTH SECOND STREET POST OFFICE BOX 845 HARRISBURG, PENNSYLVANIA 17108-0845 (717) 234-4182 FAX (717) 234-4224 www.wwwpalaw.com May 31, 2006 Robert M. Frankhouser, Jr., Esquire Hartman Underhill & Brubaker LLP 221 East Chestnut S eet Lancaster, PA 17602-2782 4705 DUKE STREET HARRISBURG, PA 17109-3099 (717) 652-6455 FAX (717) 6526290 RE: Peter & meuna ,iuyl%G ? 11? Docket No.: 05-3693 Our File No.: 7863 - 11153 I . Holding the Defendant in contempt for failure to serve answers; z. Entering judgment against the Defendant, or in the alternative, requiring until Defendant serves full and t complete answers; the the court, day, to Defen all 3 fleDire es In cur red in conn eant cttonrwi hbyourr cclientls' failure to answe ; ao d ey's 4. Granting any otherselief as the Court deems appropriate. Dear Mr. Frankhouser: We have stretched courtesy to its reasonable limit. We, therefore, demand timely response to our outstanding Interrogatories in the above-captioned case. This letter shall constitute our written Notice of Intention o well seek Sanctions, if pursuant to Cumberland County Local Rule 4019(4)(a)( )( )• sanctions your client's complete and full answers to the Interrogatories previously served are not received by us within thirty (30) days from the date of this letter. If required to pursue this avenue, we will seek the following sanctions: EXHIBIT B (Page 1 of 2) e. A. w WIX, WENGER & WEIDNER May 31, 2006 Page') Also, please note that the Sanctions Hearing will require the presence of you and your client at said hearing, unless you accept full responsibility for the default, in writing, filed within five calendar days of receipt of our motion for sanctions. Sincerely, Wix, Wenger & Weidner i By: Stephen P. Smith SPS/hjob EXHIBIT B (Page 2 of 2) 1 4. Restricted DelWert/! Mkhv FOO 0 Yes 2' Artois Number m 7003 1680 0006 5640 6761 fm*?r mxn aervke lebe4 PS Form 3811, February 2004 Domeeeo Return Receipt 10159602-A41ee0 N 0 Agent X R P d e 0 Addressee & 1?'t OS-e? ace a N-,My D. Is d*d" eddrelafterent from Rem 17 O Yes R YES enter delivery address below: 0 No 2Zi CIV6//Ukr3I /, T 3. Service Type O?pree.Man l Ci?l(a J"r; '-/ i??V2_ 2 13 Registered E4%tum Receipt for Merchandise O Insured Mail 0 C.0 0 ¦ Complete Items 1, 2, and 3. Also complete Z. 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 hack of the mailpk+ce, or on the from if apace permits. 1. Article Addressed to. +?rimr?l ?(nr,??luti ???utx?r EXHIBIT C A ? Wix Wenger & Weidner 508 North 2nd Street P.O. Box 845 Harrisburg, Pennsylvania 17108 Phone: 717-234-4182 Fax: 717-234-4224 Peter and Melinda Joyce 1118 Wansford Road Mechanicsburg, PA 17055 File #: 7863-11153 RE: Charter Homes Building Company Litigation DATE DESCRIPTION HOURS AMOUNT LAWYER 4/24/06 Review of file; Memo to T. .20 $ 25.00 SPS Wenger re: status of Interrogatories sent to Charter 5/31/06 Preparation of Motion for 1.60 $200.00 SPS Sanctions for failure to Respond to Interrogatories 7/13/06 Preparation of Motion for 2.00 $250.00 SPS Sanctions Totals: 3.80 $475.00 EXHIBIT D PETER S. JOYCE, IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, & CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, A MINOR. Plaintiffs V. NO. 05-3693 CHARTER HOMES BUILDING COMPANY Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Plaintiffs' Motion for Sanctions Against Defendant for Failure to Answer Plaintiffs' Interrogatories upon the following individual by first class, postage prepaid, United States Mail: Kevin M. French, Esquire Hartman Underhill & Brubaker LLP 221 East Chestnut Street Lancaster, Pennsylvania 17602 Attorney for Defendant Respectfully submitted, WIX, WENGER & WEIDNER Date: July 14, 2006 By: WAIUO arva Owings aughma , Legal Assistant 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 ? P _. _ ? '? -'? . ?G .'t 1 Thomas L. Wenger, Esquire Stephen P. Smith, Esquire Wix, Wenger & Weidner P.C. 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce & Hope Joyce, a Minor. PETER S. JOYCE, MELINDA S. JOYCE, & HOPE JOYCE, A MINOR Plaintiffs V. CHARTER HOMES BUILDING COMPANY Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3693 CIVIL ACTION - LAW PLAINTIFFS' MOTION TO COMPEL AND NOW, come Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a minor, by and through their attorneys, Stephen P. Smith, Esquire, and file this Motion to Compel against the Defendant, Charter Building Company, and in support thereof states as follows: 1. Plaintiffs instituted this action against the Defendant, Charter Homes Building Company, on July 21, 2005. Plaintiffs alleged causes of action against the Defendant for Violation of the Unfair Trade Practices and Consumer Protection Law, Fraudulent Concealment of a Material Defect, s it and Breach of Implied Warranty to Construct Home in a Workmanlike Manner. 2. The pleadings are closed. 3. On February 3, 2006, Plaintiffs served their First Set of Interrogatories (the "Interrogatories") on counsel for the Defendant. A true and correct copy of the Interrogatories is attached hereto as Exhibit A and is incorporated herein by reference as if fully set forth. 4. Defendant's answers to the Interrogatories were due on March 6, 2006, pursuant to Pa.R.C.P. 4006(a)(2). 5. Defendant failed and/or refused to serve its answers to the Interrogatories by March 6, 2006. 6. By letter dated May 31, 2006, the Plaintiffs, through their attorney, sent a certified letter to Defendant's attorney, informing Defendant's attorney that a Motion for Sanctions would be filed if the Interrogatories were not answered by June 30, 2006. 7. Defendant failed and/or refused to serve its answers to the Interrogatories by June 30, 2006. 8. Plaintiffs filed a Motion for Sanctions with this Court on July 14, 2006. 9. The Plaintiffs' attorney received the Defendant's answers to the Interrogatories ("Answers"), via fax, the afternoon of July 14, 2006. A true and correct copy of the Answers is attached hereto as Exhibit B and is incorporated herein by reference as if fully set forth. 2 10. The Answers were unresponsive and contained legally insufficient objections. 11. To date, the Plaintiffs have still not received full and complete answers to the Interrogatories. 12. The Answers are unresponsive and legally insufficient for the following reasons: a. Plaintiffs' Interrogatory No. 1 asked Defendant to state the name, address and telephone number of each person having knowledge of the facts concerning the circumstances relating to the Plaintiffs' claims. Defendant answered this Interrogatory by providing the name of Pat M. McNulty, but Defendant did not provide the address or telephone number for Pat M. McNulty. Defendant is required to completely answer this Interrogatory. b. Plaintiffs' Interrogatory No. 10 asked Defendant to state whether Defendant denies that the Plaintiffs' residence experienced water exposure prior to the date that the Plaintiffs purchased the residence from Defendant, and if the Defendant denied that the residence experienced water exposure, Defendant is to state in detail the basis for this contention. Defendant's Answer simply states: "See Defendant's Answer to Plaintiffs' Complaint." The Answer is unresponsive as it points to a prior filing as an answer to a 3 1 I \ 1 I specific discovery request. Defendant is required to completely answer this Interrogatory. C. Plaintiffs' Interrogatory No. 15 asked Defendant to state whether any other dwellings within the development in which the Plaintiffs' Residence is located experienced water exposure prior to the date that the Plaintiffs' purchased their Residence from the Defendant. The Defendant objected to this interrogatory as irrelevant. Contrary to the Defendant's objection, the information sought by Plaintiffs is material to the causes of action alleged by the Plaintiffs and is discoverable. Defendant is required to answer this Interrogatory. d. Plaintiffs' Interrogatory No. 16 asked Defendant to identify by name, address, and telephone number of any individuals having knowledge of whether any other dwellings within the Defendant's development experienced water exposure. Defendant objected to this interrogatory as irrelevant. The Defendant objected to this interrogatory as irrelevant. Contrary to the Defendant's objection, the information sought by Plaintiffs is material to the causes of action alleged by the Plaintiffs and is discoverable. Defendant is required to answer this Interrogatory. 4 13. This Court should order Defendant to provide full and complete responses to the Interrogatories and quash Defendant's objections as set forth above. 14. Plaintiffs' counsel informed Defendant's counsel of their intent to file this Motion. Defendant's consent was neither granted nor denied. WHEREFORE, Plaintiffs' respectfully requests that this Honorable Court enter an Order: a. directing Defendant to serve full and complete answers to Plaintiffs' I nterrogatories; C. quashing Defendant's objections to the Interrogatories; e. granting such other relief and sanctions as this Court deems appropriate. Respectfully Submitted, WIX, WENGER & WEIDNER Date: July 18, 2006 BY: Thomas L. Wenger, Esq. ID #15489 Stephen P. Smith, Esq. ID #93349 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a Minor. 5 Exhibit A . 1 . 1 Thomas L. Wenger, Esquire Stephen P. Smith, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 twengerOwwwpalaw.com ssmithOwwwpalaw.com Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce & Hope Joyce, a Minor. PETER S. JOYCE, MELINDA S. JOYCE, & HOPE JOYCE, A MINOR. Plaintiffs V. CHARTER HOMES BUILDING COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3693 CIVIL ACTION - LAW PLAINTIFFS' FIRST SET OF INTERROGATORIES TO DEFENDANT CHARTER HOMES AND NOW, come Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a minor, by and through their attorneys, Thomas L. Wenger, Esquire, Stephen P. Smith, Esquire, and Wix, Wenger & Weidner, P.C., and, serve and request Defendant to answer, under oath, the following Interrogatories. Answers shall be signed by Defendant and shall be served on Plaintiffs within thirty (30) days from the date hereof. If the information requested in an Interrogatory is wholly or partly contained in documents, you may answer the Interrogatory by attaching a copy 1 EXHIBIT A (Page 2 of 23) . I . ! of the documents to your answers to these Interrogatories to the extent that the documents contain the requested information. If there are any objections to any Interrogatory, you shall identify fully the substance of, and the legal authority for, the objections and provide sufficient information to substantiate the objections. Definitions As used herein, the following terms shall have the meanings set forth below: (a) The term "Defendant" means and includes Charter Homes Building Company, its attorneys, agents, representatives, and all other persons in privity with Charter Homes Building Company, with respect to the matters herein inquired about. (b) The term "Plaintiff' means and includes Peter S. Joyce, Melinda S. Joyce and Hope Joyce, their attorneys and agents, and all other persons in privity with Peter S. Joyce, Melinda S. Joyce and Hope Joyce with respect to the matters herein inquired about. (c) The term "Residence" means and includes the dwelling at 1118 Wansford Road, Mechanicsburg, Pennsylvania. (d) The term "documents," as used herein, means and includes, without limitation, letters, correspondence, bulletins, computation sheets, estimates, warranties, specifications, instructions, advertisements, literature, work assignments, reports, memoranda, memoranda of conversations, telephone messages, notes, notebooks, drafts, data sheets, work sheets, contracts, agreements, memoranda of agreements, assignments, licenses, minutes, minute books, resolutions, unanimous consents, books of accounts, orders, invoices, packing slips, statements, bills, checks, check stubs, 2 EXHIBIT A (Page 3 of 23) (e) (f) vouchers, photographs, drawings, charts, catalogs, brochures, job books, job descriptions, bank books, financial statements, financial or accounting records, and all other written or printed material of whatsoever kind known to or in possession or control of Respondent. The term "persons," as used herein, means and includes individuals, proprietorships, associations, partnerships, corporations, groups, organizations, governmental bodies and joint ventures. "Identify" or "Identity' means when used in reference to -- i. A natural person, his or her: 1. full name; and 2. present or last known residence and employment address (including street name and number, city or town, and state or country); ii. A document: 1. its description (e.g. letter, memorandum, report, etc.), title and date; 2. its subject matter; 3. its author's identity; 4. its addressee's identity; 5. its present location; and 6. its custodian's identity; iii. An oral communication; 1. its date; 2. the place where it occurred; 3. its substance; 4. the identity of the person who made the communication; 3 EXHIBIT A (Page 4 of 23) v i 5. the identity of each person to whom such communication was made; and 6. the identity of each person who was present when such communication was made; iv. A corporate entity: 1. its full corporate name; 2. its date and place of incorporation, if known; and 3. its present address and telephone number; v. Any other context: a description with sufficient particularity that the thing may thereafter be specified and recognized, including relevant dates and places, and the identification of relevant people, entities, and documents. (g) The masculine terms contained herein shall be construed to include the feminine and/or neuter, as the content requires and vice versa. (h) Words in the singular shall include the plural thereof, and vice versa. 4 MIBIT A (Page 5 of 23) INTERROGATORIES 1. Identify the name, address, and telephone number of each person who has knowledge of facts concerning the circumstances related to any of the claims of Plaintiffs in this case. 5 EXHIBIT A (Page 6 of 23) 2. If you know of anyone who has given any statement concerning this action or its subject matter, state: a. Identify the name, address, and telephone number of such person; b. When, where, by whom, and to whom each statement was made, and whether it was reduced to writing or otherwise recorded, and if in writing or otherwise recorded, the identity of any person who has custody of any such statement. 6 EXHIBIT A (Page 7 of 23) 3. Identify the name, address, and telephone number of each person you intend to call as a non-expert witness at the trial in this case, and for each person identified state your relationship with the witness and the substance of the facts to which the witness is expected to testify. 7 F?IIBTT A (Page 8 of 23) 4. Identify the name, address, and telephone number of each expert you intend to call as a witness at the trial in this case, and for each expert state: a. The subject mater about which the expert is expected to testify; and b. The substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (You may file as your answer to this interrogatory the report of the expert or have the interrogatory answered by your expert.) 8 EMBIT A (Page 9 of 23) 5. Identify all exhibits, books, magazines, manuals or other documents that you intend to use at the trial in this case. 9 EXHIBIT A (Page 10 of 23) 6. If you know of the existence of any photographs, motion pictures or video recordings, state: a. The nature or type of such item; b. The date on which such item was made; c. The identity of the person who prepared or made each item; and d. The subject that each item represents or portrays. 10 MIBIT A (Page 11 of 23) 7. If you intend to use any admission(s) of a party at the trial in this case, identify such admissions(s). 11 EXHIBIT A (Page 12 of 23) 8. Provide the date when the construction of the Residence was completed. EEn A (Page 13 of 23) M 9. Provide the dates when the Residence was used as a sales facility by the Defendant. 13 EMBIT A (Page 14 of 23) { 10. Does Defendant deny that the Residence experienced water exposure prior to the date that the Plaintiffs purchased the Residence from the Defendant? If so, state in detail the basis for this contention. 14 EXHIBIT A (Page 15 of 23) 11. Identify, by date, and time, each occasion Defendant had discussions with Plaintiffs or with any other individuals concerning the incident described in Interrogatory No. 10. 15 EXHIBIT A (Page 16 of 23) 12. Identify the name, address, and telephone number of any individuals which Defendant discussed the incident described in Interrogatory No. 10. 16 EXHIBIT A (Page 17 of 23) 13. In regards to the incident described in Interrogatory No.10, state in detail: a. The date on which the incident occurred; b. The date which the incident was discovered; c. The portion(s) of the Residence affected by the incident; d. The names, address and telephone number of any person who may have knowledge of the incident; e. The cause(s) of the incident; f. Whether the sump pump in the basement of the Residence was properly installed and working correctly at the time the incident occurred; g. The length of time in which the water remained in the Residence before it was completed removed; h. Any building materials or fixtures which were damaged due to the water exposure; i. Any building materials or fixtures which were replaced due to the water exposure; 17 E MBIT A (Page 18 of 23) j. What, if any, procedures were taken to prevent mold from growing in the Residence following the incident. EU TT A (Page 19 of 23) 14. Provide the date that Defendant installed a battery back up in the sump pump located in the Residence, and state in detail the reason for installing said battery back up. 19 EXHIBIT A (Page 20 of 23) 15. State whether any other dwelling within the development in which the Residence is located, experienced water exposure prior to the date that the Plaintiffs purchased the Residence from the Defendant. 20 E%HIBTT A (Page 21 of 23) 16. If any other dwelling within the development in which the Residence is located experienced water exposure, identify the name, address, and telephone number of any individuals having knowledge concerning the events. 21 EXHIBIT A (Page 22 of 23) 17. Provide the full name and last know address and telephone number for Defendant's former employees, Jim Vance and Dave Tyndall. 22 EXHIBIT A (Page 23 of 23) Exhibit B HARTMAN UNDERHILL & BRUBAKER LLP Robert M. Frankhouser, Jr., Esquire Attorney I.D. No. 29998 Kevin M. French, Esquire Attorney I.D. No. 47589 221 East Chestnut Street Attorneys for Defendant Lancaster, PA 17602 (717) 299-7254 PETER S. JOYCE, MELINDA S. JOYCE & HOPE JOYCE, A MINOR, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CHARTER HOMES BUILDING COMPANY, Defendant No. 05-3693 CIVIL ACTION - LAW DEFENDANT'S ANSWERS TO PLAINTIFF'S FIRST SET OF INTERROGATORIES Identify the name, address, and telephone number of each person who has knowledge of facts concerning the circumstances related to any of the claims of Plaintiffs in this case. ANSWER: Peter S. Joyce Melinda S. Joyce Hope Joyce Dan Joyce 1118 Wensford Road Mechanicsburg, PA 17050 Tucker Restoration, Inc. 12 Stover Drive Carlisle, PA 17013 Daniel J. Larson Analytical Laboratory Services, Inc. 3544 North Progress Avenue, Suite 100 Harrisburg, PA 17110 Randy Rainey Former Vice President of Charter Homes Address Unknown 00444022.1 Pat M. McNulty Charter Homes Charter Homes' investigation is continuing. Charter Homes reserves the right to supplement this answer. 2. If you know of anyone who has given any statement concerning this action or its subject matter, state: ANSWER: None, other than Plaintiffs' letters to Mr. Frankhouser. a. Identify the name, address, and telephone number of such person; b. When, where, by whom, and to whom each statement was made, and whether it was reduced to writing or otherwise recorded, and if in writing or otherwise recorded, the identity of any person who has custody of any such statement. 3. Identify the name, address, and telephone number of each person you intend to call as a non-expert witness at the trial in this case, and for each person identified state your relationship with the witness and the substance of the facts to which the witness is expected to testify. ANSWER: Charter Homes has not identified trial witnesses. This answer will be supplemented when trial witnesses are identified. 4. Identify the name, address, and telephone number of each expert you intend to call as a witness at the trial in this case, and for each expert state: ANSWER: Charter Homes has not identified who, if anyone, will be called as an expert witness at the trial of the case. This answer will be supplemented if an expert witness is identified. a. The subject matter about which the expert is expected to testify; and b. The substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (You may file as your answer to this interrogatory the report of the expert or have the interrogatory answered by your expert.) 5. Identify all exhibits, books, magazines, manuals or other documents that you intend to use at the trial in this case. 00444022.1 2 V Y V ANSWER: Charter Homes has not identified exhibits that will be introduced into evidence at the trial of the case. This answer will be supplemented when trial exhibits are identified. 6. If you know of the existence of any photographs, motion pictures or video recordings, state: ANSWER: Charter Homes knows that Plaintiffs have photographs. a. The nature or type of such item; b. The date on which such item was made; C. The identity of the person who prepared or made each item; and d. The subject that each item represents or portrays. 7. If you intend to use any admission(s) of a party at the trial in this case, identify such admission(s). ANSWER: Objection. Charter Homes objects to Interrogatory No. 7 on the grounds that it seeks information protected from disclosure by the attorney work product doctrine and otherwise beyond the scope of permissible discovery under Pa.R.C.P. 4003.3. 8. Provide the date when the construction of the Residence was completed. ANSWER: On or about October, 1998. 9. Provide the dates when the Residence was used as a sales facility by the Defendant. ANSWER: Between approximately October, 1998 to May, 2001. 10. Does Defendant deny that the Residence experienced water exposure prior to the date that the Plaintiffs purchased the Residence from the Defendant? If so, state in detail the basis for this contention. ANSWER: See Defendant's Answers to Plaintiffs' Complaint. 11. Identify, by date, and time, each occasion Defendant had discussions with Plaintiffs or with any other individuals concerning the incident described in Interrogatory No. 10. 00444022.1 3 i Y 7 ANSWER: Charter Homes is not aware of the alleged incident. 12. Identify the name, address, and telephone number of any individuals which Defendant discussed the incident described in Interrogatory No. 10. ANSWER: See Charter Homes' answer to Interrogatory No. 11. 13. In regards to the incident described in Interrogatory No. 10, state in detail: ANSWER: See Charter Homes' answer to Interrogatory No. 11. a. The date on which the incident occurred; b. The date which the incident was discovered; C. The portion(s) of the Residence affected by the incident; d. The names, address and telephone number of any person who may have knowledge of the incident; e. The cause(s) of the incident; f. Whether the sump pump in the basement of the Residence was properly installed and working correctly at the time the incident occurred; g. The length of time in which the water remained in the Residence before it was completely removed; h. Any building materials or fixtures which were damaged due to the water exposure; i. Any building materials or fixtures which were replaced due to the water exposure; j. What, if any, procedures were taken to prevent mold from growing in the Residence following the incident. 14. Provide the date that Defendant installed a battery back up in the sump pump located in the Residence, and state in detail the reason for installing said battery back up. ANSWER: The date is unknown. The back up was installed as part of a finished basement. 00444022.1 4 15. State whether any other dwelling within the development in which the Residence is located, experienced water exposure prior to the date that the Plaintiffs purchased the Residence from the Defendant. ANSWER: Objection. Charter Homes objects to Interrogatory No. 15 on the grounds that it seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. 16. If any other dwelling within the development in which the Residence is located experienced water exposure, identify the name, address, and telephone number of any individuals having knowledge concerning the events. ANSWER: Objection. Charter Homes objects to Interrogatory No. 16 on the grounds that it seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. 17. Provide the fiillbame and last known address and telephone number for Defendant's former employees, Jim Vance and Dave Tyndall. ANSWER: James Vance 5007 Amelia's Path East Mechanicsburg, PA 17050 (717) 732-9041 David Tyndall 124 East Oak Street Palmyra, PA 17078 Telephone Number Unknown Datey 6 - 00444022.1 HARTMAN UNDERHILL & BRUBAKER B Robert M. Frankhouser, Jr.', -M. #29998 Kevin M. French, I.D. #47589 Attorneys for Defendant 5 r YSRIFICATTOSI I hereby verify that I am the Vice President of Operations of Charter Homes Building Company; that as such I am authorindto make this verification; and that the information set forth in the foregoing document is true and correct to the best of my knowledge, information and belief. I understand that any false statements contained. herein are subject to the penalties of 18 Pa.C.S. §4904, relatiug to unworn falsification to authorities, Date: ti OS rm"022,1 6 Jim Boyer CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day serving the foregoing document upon the persons and in the manner indicated below. Service by Facsimile and First Class Mail and addressed as follows: Stephen P. Smith, Esquire Wix, Wenger & Weidner 508 North Second Street P.O. Box 845 Iarrisburg, PA 17108-0845 Date: 7 v 6 00444022.1 HARTMAN UNDERHILL & BRUBAKER LLP By7 _ Robert M. Frankhouser, Jr., I.D. #29998 Kevin M. French, I.D. #47589 Attorneys for Defendant 221 East Chestnut Street Lancaster, PA 17602 (717) 299-7254 7 PETER S. JOYCE, MELINDA S. JOYCE, & HOPE JOYCE, A MINOR Plaintiffs V. CHARTER HOMES BUILDING COMPANY Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3693 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Plaintiffs' Motion to Compel upon the following individual by first class, postage prepaid, United States Mail: Kevin M. French, Esquire Hartman Underhill & Brubaker LLP 221 East Chestnut Street Lancaster, Pennsylvania 17602 Attorney for Defendant Respectfully submitted, WIX, WENGER & WEIDNER Date: July 19, 2006 By: q"/??? ? Harva Owings Baughman, Legal Assistant 508 North Second Street P.O. Box 845 Harrisburg, PA 17101 (717) 234-4182 6 _ _ c __. r __ a ?, . _ Thomas L. Wenger, Esquire Stephen P. Smith, Esquire Wix, Wenger & Weidner P.C. 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce & Hope Joyce, a Minor. PETERS. JOYCE, IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, & CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, A MINOR. Plaintiffs V. CHARTER HOMES BUILDING COMPANY NO. 05-3693 Defendant : CIVIL ACTION - LAW AND NOW, come Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a minor, by and through their attorneys, Stephen P. Smith, Esquire, and file this Withdrawal of Motion for Sanctions against the Defendant, Charter Building Company, and in support thereof states as follows: 1. On or about July 14, 2006, the Plaintiffs filed a Motion for Sanctions Against Defendant for Failure to Answer Plaintiffs' Interrogatories. 2. The Plaintiffs' counsel received the Defendant's Answers to the Plaintiffs' Interrogatories the afternoon of the July 14, 2006. WHEREFORE, Plaintiffs respectfully requests the Court to allow the withdrawal of Plaintiffs' Motion. Respectfully Submitted, WIX, WENGER & WEIDNER Date: July 17, 2006 By: ??? /' Thomas L. Wenger, Esq. ID #15489 Stephen P. Smith, Esq. ID #93349 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a Minor. PETER S. JOYCE, MELINDA S. JOYCE, & HOPE JOYCE, A MINOR. Plaintiffs V. CHARTER HOMES BUILDING COMPANY Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3693 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Plaintiffs' Withdrawal of Motion for Sanctions Against Defendant for Failure to Answer Plaintiffs' Interrogatories upon the following individual by first class, postage prepaid, United States Mail: Kevin M. French, Esquire Hartman Underhill & Brubaker LLP 221 East Chestnut Street Lancaster, Pennsylvania 17602 Attorney for Defendant Respectfully submitted, WIX, WENGER & WEIDNER Date: July 18, 2006 By: fifllf /!? arva Owings Baughman, Legal Assistant 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 (-> `? t=l _ ._„ '.7 f ? l - ; 'rt f'; r.. PETER S. JOYCE, IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, & CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, A MINOR, : Plaintiffs V. CHARTER HOMES BUILDING COMANY, : Defendant CIVIIL ACTION - LAW NO. 05-3693 CIVIL TERM ORDER OF COURT AND NOW, this 26`" day of July, 2006, upon consideration of Plaintiffs' Motion To Compel, a discovery conference is scheduled in chambers of the undersigned judge for Monday, October 2, 2006, at 3:00 p.m. v4omas L. Wenger, Esq. Stephen P. Smith, Esq. 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 Attorneys for Plaintiffs vin M. French, Esq. 221 East Chestnut Street Lancaster, PA 17602 Attorney for Defendant :rc BY THE COURT, 1 0(1`7- V l _.., ? y1 ?i Thomas L. Wenger, Esquire Stephen P. Smith, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 twenaer(&wwwpalaw.com ssmith(&wwwpalaw. com Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce & Hope Joyce, a Minor. PETER S. JOYCE, MELINDA S. JOYCE, & HOPE JOYCE, A MINOR. Plaintiffs V. CHARTER HOMES BUILDING COMPANY Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3tag3 CIVIL ACTION -LAW PLAINTIFF'S REPLY TO DEFENDANT'S ANSWER Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a minor, by and through their attorneys, Wix, Wenger & Weidner, respectfully presents the following Reply to New Matter contained in Defendant Charter Homes Building Company's Answer: REPLY TO NEW MATTER 56. Denied as stated. Only admitted that on or about September 17 and September 18, 2004, the Mechanicsburg area of Cumberland County experienced rainfall. 57. Denied. 58. Denied. 59. Denied. WHEREFORE, Plaintiff respectfully requests that the Court list the case for trial by jury and grant such other relief as the Court deems just and appropriate. Respectfully submitted, WIX, WENGER & WEIDNER Date: August 28, 2006 By: 94 Y Thomas L. Wenger, Esquire Stephen P. Smith, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce & Hope Joyce, a Minor. PETER S. JOYCE, MELINDA S. JOYCE, & HOPE JOYCE, A MINOR. Plaintiffs V. CHARTER HOMES BUILDING COMPANY Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3693 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Plaintiffs' Answer to Defendant's New Matter upon the following individual by first class, postage prepaid, United States Mail: Kevin M. French, Esquire Hartman Underhill & Brubaker LLP 221 East Chestnut Street Lancaster, Pennsylvania 17602 Attorney for Defendant Respectfully submitted, WIX, WENGER & WEIDNER Date: August 28, 2006 r By. arva Owings B ugh n, Legal Assistant 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 N C' o CO ? c5 T !V -D }\ co tJ R't C cif D 6L' ' < ' -. PETER S. JOYCE, MELINDA S. JOYCE, & HOPE JOYCE, A MINOR, Plaintiffs v CHARTER HOMES BUILDING, COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 05-3693 CIVIL TERM IN RE: DISCOVERY CONFERENCE ORDER OF COURT AND NOW, this 2nd day of October, 2006, upon consideration of Plaintiff's Motion To Compel in the above-captioned matter, and following a discovery conference held in the chambers of the undersigned judge in which Plaintiffs were represented by Stephen P. Smith, Esquire, and Defendant was represented by Kevin M. French, Esquire (participating by telephone), it is ordered and directed that within 30 days of today's date Defendant supply to Plaintiffs' counsel, in verified form, information as to any complaints received from homeowners in Plaintiffs' development by Defendant as to flooding in their homes during the period in which Plaintiffs' home was used by Defendant as a model home/sales office. The information directed to be furnished in this order shall be in the detail requested by Plaintiffs' Interrogatories 15 and 16. By the Court, 4 `Ii'j q, "; --Z Hd C- 1 30 9coz A`?lC:i?4 .i 1 3NZ JO Stephen P. Smith, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 For Plaintiffs Kevin M. French, Esquire 221 East Chestnut Street Lancaster, PA 17602 For Defendant :mae Thomas L. Wenger, Esquire Stephen P. Smith, Esquire Wix, Wenger & Weidner P.C. 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce & Hope Joyce, a Minor. PETER S. JOYCE, MELINDA S. JOYCE, & HOPE JOYCE, A MINOR. Plaintiffs V. CHARTER HOMES BUILDING COMPANY Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 05-3693 CIVIL ACTION - LAW PLAINTIFFS' MOTION TO COMPEL ANSWERS TO PLAINTIFFS' INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS AND NOW, come Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a minor, by and through their attorneys Wix, Wenger & Weidner, and file this Motion to Compel Answers to Plaintiffs' Interrogatories and Request for Production of Documents, pursuant to Pa.R.C.P. 4019, stating the following: 1. Plaintiffs instituted this action against Defendant, Charter Homes Building Company, on July 21, 2005, alleging causes of action against Defendant for Violation of the Unfair Trade Practices and Consumer Protection Law, Fraudulent Concealment of a Material Defect, and Breach of Implied Warranty to Construct Home in a Workmanlike Manner. 2. Defendant filed an Answer to Plaintiffs' Complaint on or about September 8, 2005. 3. The pleadings are closed. 4. On February 3, 2006, Plaintiffs served their First Set of Interrogatories (the "First Set of Interrogatories") on counsel for Defendant. 5. Pursuant to Pa.R.C.P. 4006(a)(2), Defendant's answers to the First Set of Interrogatories were due on March 6, 2006. 6. Defendant failed and/or refused to serve its answers to the First Set of Interrogatories by March 6, 2006. 7. By letter dated May 31, 2006, Plaintiffs' attorney informed counsel for Defendant that a Motion for Sanctions would be filed if Defendant did not respond to the First Set of Interrogatories by June 30, 2006. 8. Defendant failed and/or refused to serve its answers to the First Set of Interrogatories by June 30, 2006. 9. Plaintiffs filed a Motion for Sanctions with this Court on July 14, 2006. Attached as Exhibit A is a true and correct copy of Plaintiffs' Motion for Sanctions. 10. Plaintiffs' attorney received Defendant's answers to the First Set of Interrogatories on the afternoon of July 14, 2006. 11. Defendant's answer to the First Set of Interrogatories contained several objections. 12. On July 20, 2006, Plaintiffs filed a Motion to Compel asking this Court to overrule the objections contained in Defendant's answers to the First Set of Interrogatories. Attached as Exhibit B is a true and correct copy of Plaintiffs' first Motion to Compel. 13. On October 2, 2006, following a discovery conference held in the chambers of the Honorable Judge Oler regarding the Plaintiffs' Motion to Compel, Judge Oler issued an Order overruling the objections raised by Defendant and directing 2 Defendant to answer Plaintiffs' First Set of Interrogatories. Attached as Exhibit C is a true and correct copy of the Order from Judge Oler. 14. On January 11, 2007 Plaintiffs served their third set of Interrogatories and Request for Production of Documents (the "Third Set of Interrogatories") on counsel for the Defendant. Attached as Exhibit D is a copy of the Plaintiffs' Third Set of Interrogatories. 15. Pursuant to Pa.R.C.P. 4006(a)(2), Defendant's answers to the Third Set of Interrogatories were due on or about February 14, 2007. 16. Defendant failed and/or refused to serve its answers to the Third Set of Interrogatories by February 14, 2007. 17. By letter dated February 21, 2007, Plaintiffs' attorney informed counsel for Defendant that a Motion to Compel would be filed if the Defendant did not submit its answers to the Plaintiffs' Third Set of Interrogatories by March 1, 2007. Attached as Exhibit E is a copy of the letter from Plaintiffs' attorney to Defendant. 18. Defendant failed and/or refused to serve its answers to the Interrogatories by March 1, 2007. 19. As of the date of this Motion, Defendant has not responded to Plaintiffs' Third Set of Interrogatories. 20. Plaintiffs submit that the answers to the Third Set of Interrogatories being sought are relevant to Plaintiffs' cause of action, or would lead to the discovery of information relevant to Plaintiffs' cause of action. 3 21. Defendant's continual refusal to respond to Plaintiffs' discovery requests, even after repeated demands, constitutes dilatory, obdurate and/or vexatious conduct during the pendency of a matter. 22. As a consequence, Plaintiffs are entitled to recover the attorney's fees incurred in their continual attempts to obtain the Defendant's response to Plaintiffs' discovery requests. 42 Pa.C.S. §2503(7). WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter an Order: a. directing Defendant to serve full and complete answers to Plaintiffs' Third Set of Interrogatories; b. directing Defendant to pay Plaintiffs' reasonable attorney's fees, costs and expenses incurred in its continual attempts to obtain Defendant's full and complete answers to Plaintiffs' discovery requests, which fees will be proven at the hearing on this Motion; and c. granting such other relief and sanctions as this Court deems appropriate. Respectfully Submitted, WIX, WENGER & WEIDNER J;?;L o Alt, Date: March 12, 2007 By Thomas L. Wenger, Esq. ID #15489 Stephen P. Smith, Esq. ID #93349 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a Minor. 4 CERTIFICATE OF NONCONCURRENCE I hereby certify that pursuant to Local Rule 208.2(d) I have disclosed the full text of the Motion and the proposed order to Defendant, Charter Homes Building Company, through its attorney Kevin M. French, Esquire of Hartman Underhill & Brubaker LLP, with a request for his concurrence. I advised Attorney French that if no response was received it would be assumed that he did not concur in the filing of this Motion. I did not receive a response from Attorney French, therefore it must be presumed that he does not concur. Respectfully Submitted, WIX, WENGER & WEIDNER Date: March 19, 2007 By: Thomas L. Wenger, I.D. No. 15489 Stephen P. Smith, I.D. No. 93349 P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4186 Attorneys for Defendant, Thomas L. Wenger, Esquire Stephen P. Smith, Esquire Wix, Wenger & Weidner P.C. 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce & Hope Joyce, a Minor. PETER S. JOYCE, IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, & CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, A MINOR. Plaintiffs V. : i NO. 05-3693 CHARTER HOMES BUILDING COMPANY Defendant CIVIL ACTION - LAW - r PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT FOR FAILURE TO ANSWER PLAINTIFFS' INTERROGATORIES AND NOW, come Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a minor, by and through their attorneys, Stephen P. Smith, Esquire, and file this Motion for Sanctions against the Defendant, Charter Building Company, and in support thereof states as follows: 1. Plaintiffs instituted this action against the Defendant, Charter Homes Building Company, on July 21, 2005. Plaintiffs alleged causes of action against the Defendant for Violation of the Unfair Trade Practices and Consumer Protection Law, Fraudulent Concealment of a Material Defect, ??An and Breach of Implied Warranty to Construct Home in a Workmanlike Manner. 2. The pleadings are closed. 3. On February 3, 2006, the Plaintiffs served their First Set of Interrogatories (the "Interrogatories") on counsel for the Defendant. A true and correct copy of the Interrogatories is attached hereto as Exhibit A and is incorporated herein by reference as if fully set forth. 4. The Defendant's answers were due on March 6, 2006, pursuant to Pa. R.C.P. 4006(a)(2). 5. To date, the Defendant has failed and refused to respond to the Interrogatories. 6. By letter dated May 31, 2006, the Plaintiffs, through their attorney, sent a certified letter to the Defendant's attorney, informing the Defendant's attorney that a Motion for Sanctions would be filed if the Interrogatories were not answered within thirty (30) days. A true and correct copy of the letter from May 31, 2006, is attached hereto as Exhibit B. 7. On June 1, 2006, the Defendant's attorney received the Plaintiffs' attorney's letter from May 31, 2006, as evidence by the return receipt card, a copy of which is attached hereto as Exhibit C. 8. It has been forty-two (42) days since the Defendant's attorney was informed of the Plaintiffs' intent to file a Motion for Sanctions if the Interrogatories were not answered. 9. The Plaintiffs have had to incur additional attorney's fees in their attempt to receive the information set forth in the Interrogatories, in the approximate amount of $475.00. Attached hereto as Exhibit D is a summary of the expenses and attorney's fees incurred by the Plaintiffs. WHEREFORE, the Plaintiffs respectfully request this Honorable Court to grant the following relief: a) Hold the Defendant in contempt for failure to serve answers to the Interrogatories; b) Enter judgment against the Defendant, or in the alternative, require the Defendant to pay sanctions in an amount to be determined by the Court, per day, until the Defendant serves full and complete answers to the Interrogatories; c) Direct the Defendant to reimburse the Plaintiffs for their attorney's fees incurred in connection with the Defendants failure to answer the Interrogatories; d) Grant any other relief as the Court deems appropriate. Respectfully Submitted, WIX, WENGER & WEIDNER 'ZI, i?, " Date: July 13, 2006 By: Thomas r ,- Y?"h L. Wenger, Esq. ID #15489 Stephen P. Smith, Esq. ID #93349 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a Minor. RICHARD H. WD( THOMAS L. WENGER DEAN A. WEIDNER STEVEN C. WILDS THERESA L. SHADE WIX' DAVID R. GETZ STEPHEN J. DZURANIN STEVEN M. WILLIAMS JEFFREY C. CLARK PETER G. HOWLAND STEPHEN P. SMITH KATHRYN L. WIX . Also Member Massadreelts Bar WIX, WENGER & WEIDNER A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 508 NORTH SECOND STREET POST OFFICE BOX 845 HARRISBURG, PENNSYLVANIA 17108-0845 (717) 234-4182 FAX (717) 234-4224 www.wwwpalaw.com February 3, 2006 Robert M. Frankhouser, Jr., Esquire Hartman Underhill & Brubaker LLP 221 East Chestnut Street Lancaster, PA 17602-2782 4705 DUKE STREET HARRISBURG, PA 17109-3099 (717) 852-8455 FAX (717) 652-6290 RE: Peter S. & Melina S. Joyce & Hope Joyce, a Minor v. Charter Homes Building Co. Docket No.: 05-3693 Our File No.: 7863 -11153 Dear Mr. Frankhouser: Enclosed for service is Plaintiffs' First Set of Interrogatories to Defendant. Answers to Plaintiffs' Interrogatories are due within twenty days of receipt. Sincerel TLW/hjob cc: Peter and Melinda Joyce Wix, We gep'& Weidner 1 By: ??;''? ' as L. enger EXHIBIT A (Page 1 of 23) Thomas L. Wenger, Esquire Stephen P. Smith, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 twenger0-wwwpalaw.com ssm ith(a_wwwpalaw.com Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce & Hope Joyce, a Minor. PETER S. JOYCE, MELINDA S. JOYCE, & HOPE JOYCE, A MINOR. Plaintiffs V. CHARTER HOMES BUILDING COMPANY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3693 : CIVIL ACTION -LAW PLAINTIFFS' FIRST SET OF INTERROGATORIES TO DEFENDANT CHARTER HOMES AND NOW, come Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a minor, by and through their attorneys, Thomas L. Wenger, Esquire, Stephen P. Smith, Esquire, and Wix, Wenger & Weidner, P.C., and, serve and request Defendant to answer, under oath, the following Interrogatories. Answers shall be signed by Defendant and shall be served on Plaintiffs within thirty (30) days from the date hereof. If the information requested in an Interrogatory is wholly or partly contained in documents, you may answer the Interrogatory by attaching a copy 1 EXHIBIT A (Page 2 of 23) of the documents to your answers to these Interrogatories to the extent that the documents contain the requested information. If there are any objections to any Interrogatory, you shall identify fully the substance of, and the legal authority for, the objections and provide sufficient information to substantiate the objections. Definitions As used herein, the following terms shall have the meanings set forth below: (a) The term "Defendant" means and includes Charter Homes Building Company, its attorneys, agents, representatives, and all other persons in privity with Charter Homes Building Company, with respect to the matters herein inquired about. (b) The term "Plaintiff' means and includes Peter S. Joyce, Melinda S. Joyce and Hope Joyce, their attorneys and agents, and all other persons in privity with Peter S. Joyce, Melinda S. Joyce and Hope Joyce with respect to the matters herein inquired about. (c) The term "Residence" means and includes the dwelling at 1118 Wansford Road, Mechanicsburg, Pennsylvania. (d) The term "documents," as used herein, means and includes, without limitation, letters, correspondence, bulletins, computation sheets, estimates, warranties, specifications, instructions, advertisements, literature, work assignments, reports, memoranda, memoranda of conversations, telephone messages, notes, notebooks, drafts, data sheets, work sheets, contracts, agreements, memoranda of agreements, assignments, licenses, minutes, minute books, resolutions, unanimous consents, books of accounts, orders, invoices, packing slips, statements, bills, checks, check stubs, 2 EXHIBIT A (Page 3 of 23) vouchers, photographs, drawings, charts, catalogs, brochures, job books, job descriptions, bank books, financial statements, financial or accounting records, and all other written or printed material of whatsoever kind known to or in possession or control of Respondent. (e) The term "persons," as used herein, means and includes individuals, proprietorships, associations, partnerships, corporations, groups, organizations, governmental bodies and joint ventures. (f) "Identify" or "Identity" means when used in reference to -- i. A natural person, his or her: 1. full name; and 2. present or last known residence and employment address (including street name and number, city or town, and state or country); ii. A document: 1. its description (e.g. letter, memorandum, report, etc.), title and date; 2. its subject matter; 3. its author's identity; 4. its addressee's identity; 5. its present location; and 6. its custodian's identity; iii. An oral communication; 1. its date; 2. the place where it occurred; 3. its substance; 4. the identity of the person who made the communication; 3 EXHIBIT A (Page 4 of 23) r (g) (h) 5. the identity of each person to whom such communication was made; and 6. the identity of each person who was present when such communication was made; iv. A corporate entity: 1. its full corporate name; 2. its date and place of incorporation, if known; and 3. its present address and telephone number; v. Any other context: a description with sufficient particularity that the thing may thereafter be specified and recognized, including relevant dates and places, and the identification of relevant people, entities, and documents. The masculine terms contained herein shall be construed to include the feminine and/or neuter, as the content requires and vice versa. Words in the singular shall include the plural thereof, and vice versa. 4 EXHIBIT A (Page 5 of 23) INTERROGATORIES Identify the name, address, and telephone number of each person who has knowledge of facts concerning the circumstances related to any of the claims of Plaintiffs in this case. 5 EXHIBIT A (Page 6 of 23) 2. If you know of anyone who has given any statement concerning this action or its subject matter, state: a. Identify the name, address, and telephone number of such person; b. When, where, by whom, and to whom each statement was made, and whether it was reduced to writing or otherwise recorded, and if in writing or otherwise recorded, the identity of any person who has custody of any such statement. 6 EXHIBIT A (Page 7 of 23) 3. Identify the name, address, and telephone number of each person you intend to call as a non-expert witness at the trial in this case, and for each person identified state your relationship with the witness and the substance of the facts to which the witness is expected to testify. 7 EXHIBIT A (Page 8 of 23) 4. Identify the name, address, and telephone number of each expert you intend to call as a witness at the trial in this case, and for each expert state: a. The subject mater about which the expert is expected to testify; and b. The substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (You may file as your answer to this interrogatory the report of the expert or have the interrogatory answered by your expert.) 8 EXHIBIT A (Page 9 of 23) 5. Identify all exhibits, books, magazines, manuals or other documents that you intend to use at the trial in this case. 9 EXHIBIT A (Page 10 of 23) 6. If you know of the existence of any photographs, motion pictures or video recordings, state: a. The nature or type of such item; b. The date on which such item was made; c. The identity of the person who prepared or made each item; and d. The subject that each item represents or portrays. 10 EXHIBIT A (Page 11 of 23) 7. If you intend to use any admission(s) of a party at the trial in this case, identify such admissions(s). 11 EXHIBIT A (Page 12 of 23) 8. Provide the date when the construction of the Residence was completed. EXHIBIT A (Page 13 of 23) 9. Provide the dates when the Residence was used as a sales facility by the Defendant. 13 EXHIBIT A (Page 14 of 23) 10. Does Defendant deny that the Residence experienced water exposure prior to the date that the Plaintiffs purchased the Residence from the Defendant? If so, state in detail the basis for this contention. 14 EXHIBIT A (Page 15 of 23) 11. Identify, by date, and time, each occasion Defendant had discussions with Plaintiffs or with any other individuals concerning the incident described in Interrogatory No. 10. 15 EXHIBIT A (Page 16 of 23) 12. Identify the name, address, and telephone number of any individuals which Defendant discussed the incident described in Interrogatory No. 10. 16 EXHIBIT A (Page 17 of 23) 13. In regards to the incident described in Interrogatory No. 10, state in detail: a. The date on which the incident occurred; b. The date which the incident was discovered; c. The portion(s) of the Residence affected by the incident; d. The names, address and telephone number of any person who may have knowledge of the incident; e. The cause(s) of the incident; f. Whether the sump pump in the basement of the Residence was properly installed and working correctly at the time the incident occurred; g. The length of time in which the water remained in the Residence before it was completed removed; h. Any building materials or fixtures which were damaged due to the water exposure; i. Any building materials or fixtures which were replaced due to the water exposure; 17 EXHIBIT A (Page 18 of 23) What, if any, procedures were taken to prevent mold from growing in the Residence following the incident. EXHIBIT A (Page 19 of 23) 14. Provide the date that Defendant installed a battery back up in the sump pump located in the Residence, and state in detail the reason for installing said battery back up. 19 EXHIBIT A (Page 20 of 23) 15. State whether any other dwelling within the development in which the Residence is located, experienced water exposure prior to the date that the Plaintiffs purchased the Residence from the Defendant. 20 EXHIBIT A (Page 21 of 23) 16. If any other dwelling within the development in which the Residence is located experienced water exposure, identify the name, address, and telephone number of any individuals having knowledge concerning the events. 21 EXHIBIT A (Page 22 of 23) 17. Provide the full name and last know address and telephone number for Defendant's former employees, Jim Vance and Dave Tyndall. 22 EXHIBIT A (Page 23 of 23) ..y r RICHARD H. WIX THOMAS L. WENGER DEAN A. WEIDNER STEVEN C. WILDS THERESA L. SHADE WIX' DAVID R. GETZ STEPHEN J. DZURANIN STEVEN M. WILLIAMS JEFFREY C. CLARK PETER G- HOWLAND STEPHEN P. SMITH KATHRYN L. WIX ' Aso Member M=sxnuseas Bar WIX, WENGER & WEIDNER A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 508 NORTH SECOND STREET POST OFFICE BOX 845 HARRISBURG, PENNSYLVANIA 17108-0845 (717) 234-4182 FAX (717) 234-4224 www.wwwpalaw.com May 31, 2006 Robert M. Frankhouser, Jr., Esquire Hartman Underhill & Brubaker LLP 221 East Chestnut S06et Lancaster, PA 17602-2782 4705 DUKE STREET HARRISBURG. PA 17109.3099 (717) 652-8455 FAX (717) 652-6290 RE: Peter & Melina Joyce & Hope Joyce, a Minor v. Charter Homes Building Co. Docket No.: 05-3693 Our File No.: 7863 -11153 Dear Mr. Frankhouser: We have stretched courtesy to its reasonable limit. We, therefore, demand timely response to our outstanding Interrogatories in the above-captioned case. This letter shall constitute our written Notice of Intention to Seek Sanctions, pursuant to Cumberland County Local Rule 4019(4)(a)(1)(b). We will seek sanctions if your client's complete and full answers to the Interrogatories previously served are not received by us within thirty (30) days from the date of this letter. If required to pursue this avenue, we will seek the following sanctions: 1. Holding the Defendant in contempt for failure to serve answers; 2. Entering judgment against the Defendant, or in the alternative, requiring the Defendant to pay sanctions in an amount to be determined by the court, per day, until Defendant serves full and complete answers; 3. Directing the Defendant to reimburse our client for all of their attorney's fees incurred in connection with your clients' failure to answer; and. 4. Granting any other.relief as the Court deems appropriate. EXHIBIT B (Page I of 2) WIX, WENGER & WEIDNER May 31, 2006 Page 2 Also, please note that the Sanctions Hearing will require the presence of you and your client at said hearing, unless you accept full responsibility for the default, in writing, filed within five calendar days of receipt of our motion for sanctions. Sincerely, SPS/hjob EXHIBIT B (Page 2 of 2) Wix, Wenger & Weidner By: Stephen P. Smith 11 Complete items 1, 2, and 3. Also complete Rem 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 maiipiece, or on the front If space permits. 1. Article Addressed to: A re ?, x (? 1 o Agent ? Addressee B. Recedby (Printed erne) JjjVDate of Delivery 7 qr, - D. Is delivery address?iffen3nt from Item 1? ? Yes` UO If YES, enter delivery address below: ? No 3. Service Type Mortified Mall ? Express Mall ? Registered 113-1`18tum Receipt for Merchandise ? Insured Mall ? C.O.D. f 4. Restricted Delivery? Extra Feel ? Yes 2. Article Number 7003 1680 0006 5640 6761 (Transfer from service label) i PS Form 3811, February 2004 Domestic Return Receipt 102595-02-W1540 EXHIBIT C Wix Wenger & Weidner 508 North 2nd Street P.O. Box 845 Harrisburg, Pennsylvania 17108 Phone: 717-234-4182 Fax: 717-234-4224 Peter and Melinda Joyce 1118 Wansford Road Mechanicsburg, PA 17055 File #: 7863-11153 RE: Charter Homes Building Company Litigation DATE DESCRIPTION HOURS AMOUNT LAWYER 4/24/06 Review of file; Memo to T. .20 $ 25.00 SPS Wenger re: status of Interrogatories sent to Charter 5/31/06 Preparation of Motion for 1.60 $200.00 SPS Sanctions for failure to Respond to Interrogatories 7/13/06 Preparation of Motion for 2.00 $250.00 SPS Sanctions Totals: 3.80 $475.00 EXHIBIT D PETER S. JOYCE, IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, & CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, A MINOR. Plaintiffs V. NO. 05-3693 CHARTER HOMES BUILDING COMPANY Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Plaintiffs' Motion for Sanctions Against Defendant for Failure to Answer Plaintiffs' Interrogatories upon the following individual by first class, postage prepaid, United States Mail: Kevin M. French, Esquire Hartman Underhill & Brubaker LLP 221 East Chestnut Street Lancaster, Pennsylvania 17602 Attorney for Defendant Respectfully submitted, WIX, WENGER & WEIDNER Date: July 14, 2006 By:?4: r f?? r mw? arva Owings Baughma , Legal Assistant 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Thomas L. Wenger, Esquire Stephen P. Smith, Esquire Wix, Wenger & Weidner P.C. 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce & Hope Joyce, a Minor. PETER S. JOYCE, IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, & CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, A MINOR. Plaintiffs , _ J V. NO. 05-3693 CHARTER HOMES BUILDING COMPANY Defendant CIVIL ACTION - LAW PLAINTIFFS' MOTION TO COMPEL AND NOW, come Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a minor, by and through their attorneys, Stephen P. Smith, Esquire, and file this Motion to Compel against the Defendant, Charter Building Company, and in support thereof states as follows: 1. Plaintiffs instituted this action against the Defendant, Charter Homes Building Company, on July 21, 2005. Plaintiffs alleged causes of action against the Defendant for Violation of the Unfair Trade Practices and Consumer Protection Law, Fraudulent Concealment of a Material Defect, and Breach of Implied Warranty to Construct Home in a Workmanlike Manner. 2. The pleadings are closed. 3. On February 3, 2006, Plaintiffs served their First Set of Interrogatories (the "Interrogatories") on counsel for the Defendant. A true and correct copy of the Interrogatories is attached hereto as Exhibit A and is incorporated herein by reference as if fully set forth. 4. Defendant's answers to the Interrogatories were due on March 6, 2006, pursuant to Pa.R.C.P. 4006(a)(2). 5. Defendant failed and/or refused to serve its answers to the Interrogatories by March 6, 2006. 6. By letter dated May 31, 2006, the Plaintiffs, through their attorney, sent a certified letter to Defendant's attorney, informing Defendant's attorney that a Motion for Sanctions would be filed if the Interrogatories were not answered by June 30, 2006. 7. Defendant failed and/or refused to serve its answers to the Interrogatories by June 30, 2006. 8. Plaintiffs filed a Motion for Sanctions with this Court on July 14, 2006. 9. The Plaintiffs' attorney received the Defendant's answers to the Interrogatories ("Answers"), via fax, the afternoon of July 14, 2006. A true and correct copy of the Answers is attached hereto as Exhibit B and is incorporated herein by reference as if fully set forth. 2 10. The Answers were unresponsive and contained legally insufficient objections. 11. To date, the Plaintiffs have still not received full and complete answers to the Interrogatories. 12. The Answers are unresponsive and legally insufficient for the following reasons: a. Plaintiffs' Interrogatory No. 1 asked Defendant to state the name, address and telephone number of each person having knowledge of the facts concerning the circumstances relating to the Plaintiffs' claims. Defendant answered this Interrogatory by providing the name of Pat M. McNulty, but Defendant did not provide the address or telephone number for Pat M. McNulty. Defendant is required to completely answer this Interrogatory. b. Plaintiffs' Interrogatory No. 10 asked Defendant to state whether Defendant denies that the Plaintiffs' residence experienced water exposure prior to the date that the Plaintiffs purchased the residence from Defendant, and if the Defendant denied that the residence experienced water exposure, Defendant is to state in detail the basis for this contention. Defendant's Answer simply states: "See Defendant's Answer to Plaintiffs' Complaint." The Answer is unresponsive as it points to a prior filing as an answer to a 3 specific discovery request. Defendant is required to completely answer this Interrogatory. C. Plaintiffs' Interrogatory No. 15 asked Defendant to state whether any other dwellings within the development in which the Plaintiffs' Residence is located experienced water exposure prior to the date that the Plaintiffs' purchased their Residence from the Defendant. The Defendant objected to this interrogatory as irrelevant. Contrary to the Defendant's objection, the information sought by Plaintiffs is material to the causes of action alleged by the Plaintiffs and is discoverable. Defendant is required to answer this Interrogatory. d. Plaintiffs' Interrogatory No. 16 asked Defendant to identify by name, address, and telephone number of any individuals having knowledge of whether any other dwellings within the Defendant's development experienced water exposure. Defendant objected to this interrogatory as irrelevant. The Defendant objected to this interrogatory as irrelevant. Contrary to the Defendant's objection, the information sought by Plaintiffs is material to the causes of action alleged by the Plaintiffs and is discoverable. Defendant is required to answer this Interrogatory. 4 13. This Court should order Defendant to provide full and complete responses to the Interrogatories and quash Defendant's objections as set forth above. 14. Plaintiffs' counsel informed Defendant's counsel of their intent to file this Motion. Defendant's consent was neither granted nor denied. WHEREFORE, Plaintiffs' respectfully requests that this Honorable Court enter an Order: a. directing Defendant to serve full and complete answers to Plaintiffs' Interrogatories; C. quashing Defendant's objections to the Interrogatories; e. granting such other relief and sanctions as this Court deems appropriate. Respectfully Submitted, WIX, WENGER & WEIDNER Date: July 18, 2006 By: )ZV? _ Thomas L. Wenger, Esq. ID #15489 Stephen P. Smith, Esq. ID #93349 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a Minor. 5 PETER S. JOYCE, MELINDA S. JOYCE, & HOPE JOYCE, A MINOR, Plaintiffs v CHARTER HOMES BUILDING, COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 05-3693 CIVIL TERM IN RE: DISCOVERY CONFERENCE ORDER OF COURT AND NOW, this 2nd day of October, 2006, upon consideration of Plaintiff's Motion To Compel in the above-captioned matter, and following a discovery conference held in the chambers of the undersigned judge in which Plaintiffs were represented by Stephen P. Smith, Esquire, and Defendant was represented by Kevin M. French, Esquire (participating by telephone), it is ordered and directed that within 30 days of today's date Defendant supply to Plaintiffs' counsel, in verified form, information as to any complaints received from homeowners in Plaintiffs' development by Defendant as to flooding in their homes during the period in which Plaintiffs' home was used by Defendant as a model home/sales office. The information directed to be furnished in this order shall be in the detail requested by Plaintiffs' Interrogatories 15 and 16. By the Court, 4 Stephen P. Smith, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 For Plaintiffs Kevin M. French, Esquire 221 East Chestnut Street Lancaster, PA 17602 For Defendant :mae RICHARD H. WIX THOMAS L. WENGER DEAN A. WEIDNER STEVEN C. WILDS THERESA L. SHADE WIX' DAVID R. GETZ STEPHEN J. DZURANIN STEVEN M. WILLIAMS JEFFREY C. CLARK PETER G. HOWLAND STEPHEN P. SMITH KATHRYN L. WIX . Also Member Massactrmeas Bar WIX, WENGER & WEIDNER A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 508 NORTH SECOND STREET POST OFFICE BOX 845 HARRISBURG, PENNSYLVANIA 17108-0845 (717) 234-4182 FAX (717) 234-4224 www.wwwpalaw.com January 11, 2007. Kevin M. French, Esquire Hartman Underhill & Brubaker LLP 221 East Chestnut Street Lancaster, PA 17602-2782 4705 DUKE STREET HARRISBURG, PA 17109-3099 (717)652-8455 RE: Peter S. & Melina S. Joyce & Hope Joyce, a Minor v. Charter Homes Building Co. Our File No.: 7863 - 11153 Dear Attorney French: Enclosed for service are Plaintiff's Interrogatories and Request for Production of Documents (Third Set). Please respond within thirty days of receipt. Sincerely, Wix, Wenger & Weidner By: Stephen P. Smith SPS/hjob Enclosure Thomas L. Wenger, Esquire Stephen P. Smith, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce & Hope Joyce, a Minor. PETER S. JOYCE, IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, & CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, A MINOR. Plaintiffs V. NO. 05-3693 CHARTER HOMES BUILDING COMPANY Defendant : CIVIL ACTION - LAW PLAINTIFFS' INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS Third Set INSTRUCTIONS AND DEFINITIONS YOU ARE HEREBY REQUESTED, pursuant to the Pennsylvania Rules of Civil Procedure No. 4009.11, et seq., to answer the following interrogatories and produce the following documents for inspection and copying, within no more than thirty (30) days after service hereof, at the offices of Plaintiffs' counsel, Wix, Wenger & Weidner, 508 North Second Street, P.O. Box 845, Harrisburg, Pennsylvania 17108-0845, or, alternatively, by delivering copies of the same to Plaintiffs' counsel at the aforesaid address. Documents for which a proper claim of privilege can be substantiated are expressly excluded from this Request, except that Defendants shall identify all documents for which privilege is claimed and shall specify the exact grounds upon which the claim for privilege is based. 1 If any document requested is objected to on the grounds of overbreadth, you are instructed to respond to the document request as narrowed to conform to your objection within the period allowed for a response. You are required to produce the requested documents as they are kept in the usual course of business and/or to label them to correspond with the categories of this Request. This Request for Production is to be deemed continuing, and if Defendants obtain further information after the responses are filed, it shall supplement these responses at that time. Definitions As used herein, the following terms shall have the meanings set forth below: (a) The term "Defendant" means and includes Charter Homes Building Company, its attorneys, agents, representatives, and all other persons in privity with Charter Homes Building Company, with respect to the matters herein inquired about. (b) The term "Plaintiffs" means and includes Peter S. Joyce, Melinda S. Joyce and Hope Joyce, their attorneys and agents, and all other persons in privity with Peter S. Joyce, Melinda S. Joyce and Hope Joyce with respect to the matters herein inquired about. (c) The term "Residence" means and includes the dwelling at 1118 Wansford Road, Mechanicsburg, Pennsylvania. (d) The term "documents," as used herein, means and includes, without limitation, letters, correspondence, bulletins, computation sheets, estimates, warranties, specifications, instructions, advertisements, literature, work assignments, reports, memoranda, memoranda of conversations, telephone messages, notes, notebooks, drafts, data sheets, work sheets, contracts, agreements, memoranda of agreements, assignments, licenses, minutes, minute books, resolutions, unanimous consents, books of accounts, orders, invoices, packing slips, statements, bills, checks, check stubs, vouchers, photographs, drawings, charts, catalogs, brochures, job books, job descriptions, bank books, financial statements, financial or accounting records, and all other written or printed material of whatsoever kind known to or in possession or control of Respondent. (e) The term "persons," as used herein, means and includes individuals, proprietorships, associations, partnerships, corporations, groups, 2 organizations, governmental bodies and joint ventures. (f) "Identify" or "Identity" means when used in reference to - i. A natural person, his or her: 1. full name; and 2. present or last known residence and employment address (including street name and number, city or town, and state or country); ii. A document: 1. its description (e.g. letter, memorandum, report, etc.), title and date; 2. its subject matter; 3. its author's identity; 4. its addressee's identity; 5. its present location; and 6. its custodian's identity; iii. An oral communication; 1. its date; 2. the place where it occurred; 3. its substance; 4. the identity of the person who made the communication; 5. the identity of each person to whom such communication was made; and 6. the identity of each person who was present when such communication was made; iv. A corporate entity: 1. its full corporate name; 2. its date and place of incorporation, if known; and 3. its present address and telephone number; v. Any other context: a description with sufficient particularity that the thing may thereafter be specified and recognized, including relevant dates and places, and the identification of relevant people, entities, and documents. (g) The masculine terms contained herein shall be construed to include the feminine and/or neuter, as the content requires and vice versa. (h) Words in the singular shall include the plural thereof, and vice versa. 3 INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS 1. Identify the names and last known address and telephone number for any and all individuals responsible for maintenance of the Residence during Defendant's ownership of the Residence, including but not limited to, the individual identified as "Bud Tonini" in "Exhibit B" of Defendant's Answers To Plaintiff's Interrogatories Set No. 2. 4 2. Identify the names and last known address and telephone number for any and all individuals responsible for creating the documents attached hereto, contained in "Exhibit B" of Defendant's Answers To Plaintiff's Interrogatories Set No. 2. 5 2a 2b 2c 3. Produce any and all documents relating to the maintenance, repairs and restoration of the Residence during Defendant's ownership of the Residence. Respectfully Submitted, WIX, WENGER & WEIDNER By: 4 Stephen P. Smith, I.D. #93349 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Date: January 10, 2007 Attorneys for Plaintiff 6 PETER S. JOYCE, IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, & CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, A MINOR, Plaintiffs V. NO. 05-3693 CHARTER HOMES BUILDING COMPANY Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE hereby certify that this day I forwarded a copy of Plaintiffs' Interrogatories And Request For Production of Documents (Third Set) to the following individual in the following manner: Regular Mail: Kevin French, Esquire Hartman Underhill & Brubaker LLP 221 East Chestnut Street Lancaster, PA 17602-2782 Date: //11/0-7 WIX, WENGER & WEIDNER By: d?ma 6&aRa'r Harva J. OwinCf? Baughman Legal Assistant 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 7 Thomas L. Wenger, Esquire Stephen P. Smith, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiffs, Peter S. Joyce, Melinda S. Joyce & Hope Joyce, a Minor. PETER S. JOYCE, IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, & CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, A MINOR. Plaintiffs V. CHARTER HOMES BUILDING COMPANY NO. 05-3693 Defendant : CIVIL ACTION - LAW PLAINTIFFS' INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS (Third Set) INSTRUCTIONS AND DEFINITIONS YOU ARE HEREBY REQUESTED, pursuant to the Pennsylvania Rules of Civil Procedure No. 4009.11, et seq., to answer the following interrogatories and produce the following documents for inspection and copying, within no more than thirty (30) days after service hereof, at the offices of Plaintiffs' counsel, Wix, Wenger & Weidner, 508 North Second Street, P.O. Box 845, Harrisburg, Pennsylvania 17108-0845, or, alternatively, by delivering copies of the same to Plaintiffs' counsel at the aforesaid address. Documents for which a proper claim of privilege can be substantiated are expressly excluded from this Request, except that Defendants shall identify all documents for which privilege is claimed and shall specify the exact grounds upon which the claim for privilege is based. 1 If any document requested is objected to on the grounds of overbreadth, you are instructed to respond. to the document request as narrowed to conform to your objection within the period allowed for a response. You are required to produce the requested documents as they are kept in the usual course of business and/or to label them to correspond with the categories of this Request. This Request for Production is to be deemed continuing, and if Defendants obtain further information after the responses are filed, it shall supplement these responses at that time. Definitions As used herein, the following terms shall have the meanings set forth below: (a) The term "Defendant" means and includes Charter Homes Building Company, its attorneys, agents, representatives, and all other persons in privity with Charter Homes Building Company, with respect to the matters herein inquired about. (b) The term "Plaintiffs" means and includes Peter S. Joyce, Melinda S. Joyce and Hope Joyce, their attorneys and agents, and all other persons in privity with Peter S. Joyce, Melinda S. Joyce and Hope Joyce with respect to the matters herein inquired about. (c) The term "Residence" means and includes the dwelling at 1118 Wansford Road, Mechanicsburg, Pennsylvania. (d) The term "documents," as used herein, means and includes, without limitation, letters, correspondence, bulletins, computation sheets, estimates, warranties, specifications, instructions, advertisements, literature, work assignments, reports, memoranda, memoranda of conversations, telephone messages, notes, notebooks, drafts, data sheets, work sheets, contracts, agreements, memoranda of agreements, assignments, licenses, minutes, minute books, resolutions, unanimous consents, books of accounts, orders, invoices, packing slips, statements, bills, checks, check stubs, vouchers, photographs, drawings, charts, catalogs, brochures, job books, job descriptions, bank books, financial statements, financial or accounting records, and all other written or printed material of whatsoever kind known to or in possession or control of Respondent. (e) The term "persons," as used herein, means and includes individuals, proprietorships, associations, partnerships, corporations, groups, 2 organizations, governmental bodies and joint ventures. (f) "Identify" or "Identity" means when used in reference to - i. A natural person, his or her: 1. full name; and 2. present or last known residence and employment address (including street name and number, city or town, and state or country); ii. A document: 1. its description (e.g. letter, memorandum, report, etc.), title and date; 2. its subject matter; 3. its author's identity; 4. its addressee's identity; 5. its present location; and 6. its custodian's identity; iii. An oral communication; 1. its date; 2. the place where it occurred; 3. its substance; 4. the identity of the person who made the communication; 5. the identity of each person to whom such communication was made; and 6. the identity of each person who was present when such communication was made; iv. A corporate entity: 1. its full corporate name; 2. its date and place of incorporation, if known; and 3. its present address and telephone number; v. Any other context: a description with sufficient particularity that the thing may thereafter be specified and recognized, including relevant dates and places, and the identification of relevant people, entities, and documents. (g) The masculine terms contained herein shall be construed to include the feminine and/or neuter, as the content requires and vice versa. (h) Words in the singular shall include the plural thereof, and vice versa. 3 INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS 1. Identify the names and last known address and telephone number for any and all individuals responsible for maintenance of the Residence during Defendant's ownership of the Residence, including but not limited to, the individual identified as "Bud Tonini" in "Exhibit B" of Defendant's Answers To Plaintiff's Interrogatories Set No. 2. 4 2. Identify the names and last known address and telephone number for any and all individuals responsible for creating the documents attached hereto, contained in "Exhibit B" of Defendant's Answers To Plaintiff's Interrogatories Set No. 2. 5 2a 2b 2c 3. Produce any and all documents relating to the maintenance, repairs and restoration of the Residence during Defendant's ownership of the Residence. Respectfully Submitted, WIX, WENGER & WEIDNER By. z- p 5z?-F Stephen P. Smith, I.D. #93349 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Date: January 10, 2007 Attorneys for Plaintiff 6 PETER S. JOYCE, MELINDA S. JOYCE, & HOPE JOYCE, A MINOR, Plaintiffs V. CHARTER HOMES BUILDING COMPANY Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3693 CIVIL ACTION - LAW CERTIFICATE OF SERVICE hereby certify that this day I forwarded a copy of Plaintiffs' Interrogatories And Request For Production of Documents (Third Set) to the following individual in the following manner: Regular Mail: Kevin French, Esquire Hartman Underhill & Brubaker LLP 221 East Chestnut Street Lancaster, PA 17602-2782 WIX, WENGER & WEIDNER Date: ! ID-7 .. // By: ?et 9/11f-? "fan Harva J. Owind?i Baughman Legal Assistant 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 7 WIX, WENGER & WEIDNER A PROFESSIONAL CORPORATION RICHARD H. WIX ATTORNEYS AT LAW THOMAS L. WENGER 508 NORTH SECOND STREET DEAN A. WEIDNER STEVEN C. WILDS POST OFFICE BOX 845 THERESA L. SHADE WIX HARRISBURG PENNSYLVANIA 17108-0845 DAVID R. GETZ , STEPHEN J. DZURANIN JEFFREY C. CLARK PETER G. HOWLAND (717) 234-4182 STEPHEN P. SMITH KATHRYN L. Wlx FAX (717) 234-4224 www.wwwpalaw.com ' Also Member Massachusebs Bar , February 21, 2007 Kevin M. French, Esquire Hartman Underhill & Brubaker-LLP 221 East Chestnut Street Lancaster, PA 17602-2782 ROBERT C. SPITZER, Of Counsel Suburban Office: 4705 DUKE STREET HARRISBURG, PA 17109-3099 (717) 652-8455 RE: Peter S. & Melina S. Joyce & Hope Joyce, a Minor v. Charter Homes Building Co Our File No.: 7863 - 111.53 Dear Attorney French: On or about January 11, 2007; I. forwarded to your attention Plaintiffs' Interrogatories and Request For Production of Documents pertaining to the above captioned case. The thirty days allotted for response to the Plaintiffs' request has since expired. Kindly forward the Defendant's responses to my attention within the next seven days. In the even a response is not received within the next seven days I will be forced to file a Motion to Compel. Please contact the undersigned if you have any questions. Sincerely, Wix, Wenger & Weidner By: ?,, 1' Stephen P. Smith SPS/hjob PETER S. JOYCE, : IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, & : CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, A MINOR. Plaintiffs V. NO. 05-3693 CHARTER HOMES BUILDING COMPANY Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Plaintiffs' Motion to Compel Answers to Plaintiffs' Interrogatories and Request for Production of Documents upon the following individual by first class, postage prepaid, United States Mail: Kevin M. French, Esquire Hartman Underhill & Brubaker LLP 221 East Chestnut Street Lancaster, Pennsylvania 17602 Attorney for Defendant Date: March 20, 2007 Respectfully submitted, IX, WINGER & WEIDNER By: Paula A. -CrXbben Legal Assistant 508 North Second Street P.O. Box 845 Harrisburg, PA 17101 (717) 234-4182 5 0 t; :a W, v i ? 3i'"WI N R.u z J?WIONCi (8d '-:IsHi dJ PETER S. JOYCE, IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, & CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, A MINOR, : Plaintiffs V. CIVIIL ACTION - LAW CHARTER HOMES BUILDING COMANY, Defendant NO. 05-3693 CIVIL TERM ORDER OF COURT AND NOW, this 23 Td day of March, 2007, upon consideration of Plaintiffs' Motion To Compel Answers to Plaintiffs' Interrogatories and Request for Production of Documents, a Rule is hereby issued upon Defendant, to show cause why the relief requested should not be granted. RULE RETURNABLE within 10 days of service. BY THE COURT, T mas L. Wenger, Esq. tephen P. Smith, Esq. 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 Attorneys for Plaintiffs Xe"Vin M. French, Esq. 221 East Chestnut Street Lancaster, PA 17602-2782 Attorney for Defendant J 60 .r Rd LZ M LODZ HARTMAN UNDERHILL & BRUBAKER LLP Robert M. Frankhouser, Jr., Esquire Attorney I.D. No. 29998 Kevin M. French, Esquire Attorney I.D. No. 47589 221 East Chestnut Street Attorneys for Defendant Lancaster, PA 17602 (717) 299-7254 PETER S. JOYCE, MELINDA S. JOYCE & HOPE JOYCE, A MINOR, Plaintiffs V. CHARTER HOMES BUILDING COMPANY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA No. 05-3693 : CIVIL ACTION - LAW DEFENDANT'S ANSWER IN OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS (Third Set) Defendant, Charter Homes Building Company, responds in opposition to Plaintiffs' Motion and in support states as follows: 1. Admitted in part and denied in part. Charter Homes admits only that Plaintiffs instituted this action on or about July 21, 2005. Charter Homes denies that Plaintiffs have asserted any meritorious causes of action against Charter Homes. 2. Admitted. 3. Admitted. 00472426.1 4-8. Denied as stated. Charter Homes denies that it failed and/or refused to answer Plaintiffs' First Set of Interrogatories. To the contrary, Charter Homes served its answers to Plaintiffs' discovery requests before Plaintiffs filed their Motion with the Court. 9. Admitted in part and denied in part. Charter Homes admits only that Plaintiffs filed a Motion for Sanctions. Charter Homes denies that Plaintiffs' Motion had any factual or legal basis. To the contrary, under Pa.R.C.P. 4019(g)(1) before a motion seeking sanctions is permitted there must first be an Order compelling compliance with discovery requests and a failure to comply with that Order. In this case, there has not been an Order and a subsequent failure to comply with the Order. 10. Denied. Charter Homes is without knowledge or information sufficient to form a belief as to when Plaintiffs' attorney received Charter Homes' Answers. 11. Denied. Charter Homes properly asserted objections to only 3 Interrogatories out of 17. Charter Homes fully answered the remaining 14 Interrogatories. 12. Admitted. 13. Denied. Charter Homes denies that the Court issued an Order simply overruling Charter Homes' objections. To the contrary, after hearing argument by counsel, the Court substantially narrowed the scope of the two discovery requests at issue. Charter Homes subsequently served supplemental answers to the contested discovery requests as limited by and in compliance with the Court's Order. 14. Admitted. 00472426.1 2 15. Denied. Paragraph 15 states a conclusion of law and is, therefore, deemed to be denied. 16. Denied. Charter Homes denies that it failed or refused to serve answers to Plaintiffs' Third Set of Interrogatories. To the contrary, Charter Homes was attempting to obtain the information requested in Plaintiffs' third set of discovery requests. 17. Denied. Paragraph 17 references a document which is a writing and, therefore, speaks for itself. 18. Denied. Charter Homes denies that it failed and/or refused to serve answers to Plaintiffs' Interrogatories. To the contrary, Charter Homes was attempting to obtain the information requested in Plaintiffs' third set of discovery requests. 19. Denied. By letter dated March 20, 2007, Charter Homes served Plaintiffs with Defendant's Answers to Plaintiffs' Third Set of Interrogatories. True and correct copies of counsel's transmittal letter and Defendant's Answers to Plaintiffs' Third Set of Interrogatories are attached hereto, made a part hereof and marked Exhibit A. 20. Denied. Charter Homes denies that the answers to Plaintiffs' Third Set of Interrogatories are relevant to Plaintiffs' cause of action or would lead to the discovery of information relevant to Plaintiffs' cause of action. 21. Denied. Paragraph 21 states an incorrect conclusion of law and is, therefore, deemed to be denied. 00472426.1 3 22. Denied. Paragraph 22 states an incorrect conclusion of law and is, therefore, deemed to be denied. This matter is governed by Pennsylvania Rule of Civil Procedure 4019(g)(1) which first requires an Order by the Court compelling compliance and a failure to obey that Order and a subsequent motion for sanctions before the Court may require a party to pay the other parry's attorney's fees. In this case, none of the requirements exist which would permit the Court to require Charter Homes to pay Plaintiffs' attorney's fees under Rule 4019(g)(1). WHEREFORE, for all of the foregoing reasons, Defendant, Charter Homes Building Company, respectfully requests that the Court enter an Order denying Plaintiffs' Motion, plus such other relief as is permitted under the facts and the law. Date: o 0 Respectfully submitted, HARTMAN UNDERHILL & BRUBAKER By _ i Robert M. Frankhouser, Jr., I.D. #29998 Kevin M. French, I.D. #47589 Attorneys for Defendant 00472426.1 4 ??,1?Ipi? A ANDREW F. LUCARELLI WILLIAM C. McCARTY ALEXANDER HENDERSON, III ROBERT M. FRANKHOUSER. JR. THOMAS W. BERGEN MICHAEL W. RABIC MARK STANLEY MAPK E. LOVETT KEVIN M. FRENCH STEPHEN R. LAZUN JOSHUA D. COHEN KIM R. SMITH STACEY L. MORGAN ROPY O. CONNAUGHTON JEFFREY C. GOSS JOHN A. MATEYAK THEODORE L. BRUBAKER ROBERT W_ PONTZ BRETT D. JACKSON JEFFREY P. OUELLET ANJANETTE R. WARREN TIMOTHY J. CORWIN, JR. DENISE E. ELLIOTT WILLIAM J. ZEE, III HARTMAN UNDERHILL & BRUBAKER LLP ATTORNEYS AT LAW 221 EAST CHESTNUT STREET LANCASTER, PENNSYLVANIA 17602-2782 (717) 299-7254 FAX (717) 299-3160 Web Site: www.hublaw.com Direct E-Mail: kevinf@hubla.w.com March 20, 2007 Stephen P. Smith, Esquire Wix, Wenger & Weidner 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 Re: Joyce v. Charter Homes Dear Mr. Smith: COUNSEL CHRISTOPHER S. UNDERHILL MARK L. JAMES JOHN I. HARTMAN, JR. (1919-2000) THEODORE L. BRUBAKER (1911-2002) GEORGE T. BRUBAKER (1942-2006) HARRY ST. C. GARMAN (1945-2006) Enclosed please find Defendant's Answers to Plaintiffs' Third Set of Interrogatories and Request for Production of Documents. Sincerely, Kevin M. French KMF:cla 00470385.wpd Enclosure cc: Jim Boyer, Vice President of Operations Robert M. Frankhouser, Jr., Esquire HARTMAN UNDERHILL & BRUBAKER LLP Robert M. Frankhouser, Jr., Esquire Attorney I.D. NTo. 29998 Kevin M. French, Esquire Attorney I.D. No. 47589 221 East Chestnut Street Lancaster, PA 17602 (717) 299-7254 PETER S. JOYCE, MELINDA S. JOYCE & HOPE JOYCE, A MINOR, Plaintiffs V. CHARTER HOMES BUILDING COMPANY, Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 05-3693 Defendant : CIVIL ACTION -LAW DEFENDANT'S ANSWERS TO PLAINTIFFS' INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS (Third Set) 1. Identify the names and last known address and telephone number for any and all individuals responsible for maintenance of the Residence during Defendant's ownership of the Residence, including but not limited to, the indivudal identified as "Bud Tonini" in "Exhibit B" of Defendant's Answers to Plaintiff s Interrogatories Set No. 2. ANSWER: None. 2. Identify the names and last known address and telephone number for any and all individuals responsible for creating the documents attached hereto, contained in "Exhibit B" of Defendant's Answers to Plaintiff s Interrogatories Set No. 2. ANSWER: Charter Homes is unable to identify the handwriting. 3. Produce any and all documents relating to the maintenance; repairs and restoration of the Residence during Defendant's ownership of the Residence. 00465383.1 ANSWER: None, other than what was previously produced. HARTMAN UNDERHILL & BRUBAKER Date:_z? o 7 B1? Robert M. Frankhouser, J &,I--6. #29998 Kevin M. French, I.D. #47589 Attorneys for Defendant 00465383.1 2 MAR-14-2007 07;16 P.02/02 VERFTCATION I hereby verify that 1 am the Vice President of Operations of Charter Homes Building Company; that as such I am authorized to make this verification; and that the information set forth, in the foregoing document is true and correct to the best of my knowledge, information and belief. I understand that any false statements contained b.erein are subject to the penalties of Is ka.C.S. §4904, relating to unsworn falsification to authorities- Date:- '0 0-? <?!7) Jim Boyer L?) 00465383.1 3 TOTAL P.02 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day serving the foregoing document upon the persons and in the manner indicated below. Service by Facsimile and First Class Mail and addressed as follows: Stephen P. Smith, Esquire Wix, Wenger & Weidner 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 Date: ,? o D7 HARTMAN UNDERHILL & BRUBAKER LLP By,--' Robert M. Frankhouser, r., I.D. #29998 Kevin M. French, I.D. #47589 Attorneys for Defendant 221 East Chestnut Street Lancaster, PA 17602 (717) 299-7254 00465383.1 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day serving the foregoing document upon the persons and in the manner indicated below. Service by Facsimile and First Class Mail and addressed as follows: Stephen P. Smith, Esquire Wix, Wenger & Weidner 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 Date: HARTMAN UNDERHILL & BRUBAKER LLP By:---::-" Robert M. Frankhouser, Jr., I.D. #29998 Kevin M. French, I.D. #47589 Attorneys for Defendant 221 East Chestnut Street Lancaster, PA 17602 (717) 299-7254 00472426.1 5 s PETER S. JOYCE, IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, & CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, A MINOR, : Plaintiffs V. CIVIIL ACTION - LAW CHARTER HOMES BUILDING COMANY, Defendant NO. 05-3693 CIVIL TERM ORDER OF COURT AND NOW, this 18th day of April, 2007, upon consideration of Plaintiffs' Motion To Compel Answers to Plaintiffs' Interrogatories and Request for Production of Documents, and of Defendant's Answer in Opposition to Plaintiffs' Motion To Compel Answers to Interrogatories and Request for Production of Documents, a discovery conference is scheduled in chambers of the undersigned for Wednesday, May 30, 2007, at 3:30 p.m. Stephen P. Smith, Esq. 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 Attorneys for Plaintiffs Robert M. Frankhouser, Jr., Esq. Kevin M. French, Esq. 221 East Chestnut Street Lancaster, PA 17602-2782 Attorneys for Defendant BY THE COURT, J. ,Wesley Oler, Jr., J. :rc F[ ? `I ,.,?j .I t. t. 2 ! :,l-2Y L0GIZ r PETER S. JOYCE, MELINDA S. JOYCE, & HOPE JOYCE, A MINOR, Plaintiffs v CHARTER HOMES BUILDING, COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 05-3693 CIVIL TERM IN RE: DISCOVERY CONFERENCE ORDER OF COURT AND NOW, this 30th day of May, 2007, upon consideration of Plaintiffs' Motion To Compel Answers to Plaintiffs' Interrogatories and Request for Production of Documents, and following a conference in chambers, in which Plaintiffs were represented by Thomas L. Wenger, Esquire, and Defendant was represented by Kevin M. French, Esquire, it is ordered and directed as follows: 1. Within 15 days of today's date, Defendant shall furnish to Plaintiffs' counsel, in verified form, information regarding "Bud Tonini" detailing his private and business addresses, his title with Defendant, and his duties with them; and 2. Within 15 days of today's date, Defendants shall furnish to Plaintiffs' counsel, in verified form, the name, business, and private address(es), title(es), and duty(ies) of any person employed by Defendant who issued orders respecting and/or paid for and/or made any repairs or maintenance on the home which is the subject of the present action. • By the Court, 11 W\11 1?'01 0 1 1 =6 WV 1 £ AN LOOZ ,kbVjQNiG- iiOdd ?Ni 3O k ?`homas L. Wenger, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 For Plaintiffs ?1`2vin M. French, Esquire 221 East Chestnut Street Lancaster, PA 17602 For Defendant :mae PETER S. JOYCE, IN THE COURT OF COMMON PLEAS MELINDA S. JOYCE and CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, a minor, Plaintiffs NO. 05-3693 V. : CIVIL ACTION - LAW CHARTER HOMES BUILDING COMPANY. Defendant PRAECIPE FOR APPEARANCE TO: Prothonotary Please enter the appearance of Richard H. Wix, Esquire, of the firm of Wix, Wenger & Weidner, on behalf of the Plaintiffs in the above-captioned matter. WIX, WENGER & WEIDNER By r a Richard H. Wix, Esq., I.D. #07274 Attorneys for Plaintiffs 4705 Duke Street Harrisburg, PA 17109-3041 (717) 652-8455 Dated: CERTIFICATE OF SERVICE AND NOW, this 21 st day of April, 2008, I, Gaye Crist, an employee of the firm of Wix, Wenger & Weidner, attorneys for Plaintifs hereby certify that I served the within Praecipe for Appearance this date by depositing a copy of same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed as follows: Kevin M. French, Esq. Hartman, Underhill & Brubaker 221 East Chestnut Street Lancaster, PA 17602-2782 Robert M. Frankhouser, Jr., Esq. Hartman, Underhill & Brubaker 221 East Chestnut Street Lancaster, PA 17602-2782 WIX, WENGER & WEIDNER Gaye Cr t { +T"S J-0 J PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ? for JURY trial at the next term of civil court. ® for trial without a jury. -------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) Peter S. Joyce, Melinda S. Joyce, OCivil Action -Law and Hope Joyce, a minor ? Appeal from arbitration (other) (Plaintiff) VS. The trial list will be called on Charter Homes Building and Company Trials commence on (Defendant) Pretrials will be held on vs. (Briefs are due 5 days before pretrials No. 3693 , 05 Term Indicate the attorney who will try case for the party who files this praecipe: Richard H. Wix, Esq., 4705 Duke St., Harrisburg, PA 17109 Indicate trial counsel for other parties if known: Kevin French, Esq., 221 East Chestnut St., Lancaster, PA 17602 This case is ready for trial. Signed: l1.iCJ .?l 7?L !:n& Print Name: Richard H. Wix, Esq. Date: 4 Attorney for: Plaintiffs 4 rl W. CERTIFICATE OF SERVICE AND NOW, this 9th day of October, 2008, I, Gaye Crist, an employee of the firm of Wix, Wenger & Weidner, attorneys for Plaintiffs hereby certify that I served the within Praecipe for List Case for Trial this date by depositing a copy of same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed as follows: Kevin M. French, Esq. Hartman, Underhill & Brubaker 221 East Chestnut Street Lancaster, PA 17602 WIX, WENGER & WEIDNER 1AX- Gaye Cris Al PETER S. JOYCE, MELINDA S. JOYCE, and HOPE JOYCE, a minor, Plaintiffs V. CHARTER HOMES BUILDING COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3693 CIVIL TERM ORDER OF COURT AND NOW, this 30`i' day of October, 2008, a pretrial conference in the above matter is scheduled for Thursday, January 15, 2009, at 11:15 a.m., in chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the pretrial conference. A NONJURY TRIAL in the above matter is scheduled for Wednesday, February 11, 2009, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. ZRichard H. Wix E sq. 4705 Duke Street Harrisburg, PA 17109 Attorney for Plaintiff c/Kevin French, Esq. 221 East Chestnut Street Lancaster, PA 17602 Attorney for Defendant Court Administrator - --M BY THE COURT, :rc 12oFt kc m?u Lsir-L 10/.? 65/0 e f / J.,Wesley Oler, J. J i Off. IN OUR {a 0' A PETER S. JOYCE, IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, & CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, A MINOR, : Plaintiffs V. CHARTER HOMES BUILDING COMANY, Defendant CIVIIL ACTION - LAW NO. 05-3693 CIVIL TERM IN RE: NONJURY TRIAL ORDER OF COURT AND NOW, this 100' day of November, 2008, upon consideration of the attached correspondence from Richard H. Wix, Esquire, attorney for Plaintiff, the nonjury trial previously scheduled in the above matter for February 11, 2009, is rescheduled to Wednesday, March 11, 2009, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. The pretrial conference remains as scheduled for Thursday, January 15, 2009, at 11:15 a.m. chard H. Wix, Esq. 4705 Duke Street Harrisburg, PA 17109 Attorneys for Plaintiffs X ` evin M. French, Esq. ` 221 East Chestnut Street Lancaster, PA 17602-2782 Attorney for Defendant :rc BY THE COURT, `?FIV?1??ION, ?. _ PETER S. JOYCE, MELINDA S. JOYCE, and HOPE JOYCE, a minor, Plaintiffs v CHARTER HOMES BUILDING COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3693 CIVIL TERM ORDER OF COURT AND NOW, this 15th day of January, 2009, following a pretrial conference in the above-captioned matter, and with the concurrence of the parties' counsel, it is ordered and directed as follows: 1. Within 2 weeks of today's date Plaintiffs' counsel shall furnish to Defendant's counsel a copy of the expert report of Garrett Rothman; 2. Plaintiffs' claim for damages resulting to the minor Plaintiff Hope Joyce for a medical condition allegedly resulting from mold in the subject property at issue is deemed withdrawn; 3. Defendant's counsel has indicated that he would have no objection to the admission of telephone deposition testimony of one of Plaintiffs' potential witnesses, Dana Darrington; and 4. In the absence of a filing by Defendant's counsel within 5 days of today's date of a demand for a jury trial, this case will proceed on a nonjury trial basis. By the Court, - Ilk IV I chard H. Wix, Esquire 4705 Duke Street Harrisburg, PA 17109 F/evin Plaintiffs M. French, Esquire 221 East Chestnut Street Lancaster, PA 17602 For Defendant Court Administrator :mae PETER S. JOYCE, MELINDA S. JOYCE, and HOPE JOYCE, a minor, Plaintiffs v CHARTER HOMES BUILDING COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3693 CIVIL TERM IN RE: PRETRIAL CONFERENCE A pretrial conference was held in the above-captioned case in the chambers of Judge Oler on Thursday, January 15, 2009. Present on behalf of the Plaintiffs was Richard H. Wix, Esquire. Present on behalf of Defendant was Kevin M. French, Esquire. This civil case has been brought by the Plaintiffs pursuant to the Pennsylvania Unfair Trade Practices and Consumer Protection Law, for common law fraud, and for breach of the implied warranty of inhabitability. Plaintiffs' counsel has indicated that a count in the complaint claiming damages for a medical condition of the minor Plaintiff is not being pursued. The case arises out of an alleged flooding condition with respect to a home sold by Defendant to Plaintiffs, which allegedly resulted in a moldy condition. This trial is expected to last 1 day, and by separate Order of Court has been scheduled for Wednesday, March 11, 2009, at 9:30 a.m. Although listed as a nonjury case, it appears that one of the Plaintiffs' pleadings contained a demand for a jury trial, and, although Plaintiffs are willing to forgo this option, Defendant's counsel has indicated that he will need to speak with his client to be sure that his client is willing to forego a jury trial. By separate Order of Court, the Defendant will be given a period of 5 days from today's date to file a demand for a jury trial in the event that that is his client's desire; in the absence of such a filing, the case will proceed on a nonjury basis. Plaintiffs' counsel has indicated that an additional expert witness in the person of Garrett Rothman, a realtor, will be called on behalf of the Plaintiffs. By separate Order of Court, Plaintiffs will be directed to furnish a copy of Mr. Rothman's expert report to Defendant's counsel within 2 weeks of today's date. chard H. Wix, Esquire 4705 Duke Street Harrisburg, PA 17109 For Plaintiffs 2 Xvin M. French, Esquire 21 East Chestnut Street Lancaster, PA 17602 For Defendant a Court Administrator mae By the Court, 1:6 V 0Z OF 6001 PETER S. JOYCE, IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, & CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, A MINOR, : Plaintiffs V. CIVIIL ACTION - LAW CHARTER HOMES BUILDING COMANY, Defendant NO. 05-3693 CIVIL TERM ORDER OF COURT AND NOW, this 22°d day of January, 2009, upon consideration of the attached letter from Kevin M. French, Esq., attorney for the Defendant, and upon consideration of Defendant's Demand for Jury Trial filed on January 20, 2009, the nonjury trial previously scheduled in the above matter for March 11, 2009, is cancelled. Either counsel may list this case for trial. BY THE COURT, J. Wesley Olen; r., J. Xchard H. Wix, Esq. 4705 Duke Street Harrisburg, PA 17109 Attorneys for Plaintiffs Xevin M. French, Esq. J 21 East Chestnut Street 2 Lancaster, PA 17602-2782 Attorney for Defendant :rc r? Eta :Z NJ 2Z N f 60oz OPH PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHO VrARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( X ) for JURY trial at the next term of civil court. ( ) for trial without a jury. ----------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) Peter S. Joyce, Melinda S. Joyce and Hope Joyce, a minor ( X) Civil Action - Law ( ) Appeal from Arbitration (other) (Plaintiff) VS. Charter Homes Building Company (Defendant) VS. The trial list will be called on and June 2, 2009 Trials commence on June 29, 2009 Pretrials will be held on 6/10/2009 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 3693 Civil 2005 .191 Indicate the attorney who will try case for the party who files this praecipe: Richard H. Wix, Esq., 4705 Duke St., Harrisburg, PA 17109 (717) 652-8455 (counsel for Plaintiffs) Indicate trial counsel for other parties if known: Kevin M. French, Esq., 221 East Chestnut Street, Lancaster, PA 17602 (counsel for Defendant) This case is ready for trial. Date: '5- Ile, C - Signed: Print Name: Richard H. Wix, Esq. Attorney for: Plaintiffs OF THE PP,,O''-I "''?#7TARY 2009 MAY -8 Pil 1: 16 Cull,n ..<NTY 9 d- s; VIII) d a #y t Y 3 s'-7 y ,e,v- ?- a y ?- r I PETER S. JOYCE, MELINDA IN THE COURT OF COMMON PLEAS OF S. JOYCE and HOPE JOYCE, CUMBERLAND COUNTY, PENNSYLVANIA a minor, Plaintiffs CIVIL ACTION - LAW v CHARTER HOMES BUILDING COMPANY, Defendant 05-3693 CIVIL TERM IN RE: REQUEST FOR CONTINUANCE ORDER OF COURT AND NOW, this 2nd day of June, 2009, upon consideration of the call of the civil trial list, and counsel for the Plaintiff in the person of Richard H. Wix, Esquire, having indicated that this case is ready for trial, and counsel for the Defendant Mark Lovett having requested a continuance of the trial to the next term of court based upon his desire to conduct additional discovery, and one issue presented by Defendant's counsel with respect to the testimony of an expert witness having been resolved by the indication by Plaintiff's counsel that an expert witness will not be called, the Defendant's request for a continuance of trial is denied. .,e Richard H. Wix, Esquire 4705 Duke Street Harrisburg, PA 17109 For Plaintiffs Mark Lovett, Esquire 221 East Chestnut Street Lancaster, PA 17602 For Defendant Court Administrator :mae By the Court, 4-[L(j4F tZI !'-t L.9-CL - a'hi t,?E- off' ? L4L.,ais2?' aax Jr...)-3 ?Z 1a:31 (2ao4a4lv,LxL Co?? r?e.?JSy 1 oavI!?, PETER S. JOYCE, IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, and CUMBERLAND COUNTY, PENNSYLVANil?, HOPE JOYCE, a minor, C Plaintiffs +` - ?-- ;nom V. CIVIL ACTION - LAW -"' -- CHARTER HOMES BUILDING COMPANY, ` - ^° f ^, _ :n Defendant 05-3693 CIVIL TERM PRETRIAL CONFERENCE ry A pretrial conference was held in the above-optioned case in the chambers of Judge Oler on Wednesday, June 10, 009. Present on behalf of the Plaintiffs was Richard H. Wix, Esquire, and present on behalf of Defendant was Kevin M. French, Esquire. This civil case has been brought by the Plain iffs pursuant to the Pennsylvania Unfair Trade Practices and Cc sumer Protection Law, for common law fraud, and for breach of th implied warranty of inhabitability. Plaintiffs' counsel has indicted that a count in the complaint claiming damages for a medical condition of the minor Plaintiff is not being pursued, and pursuant to an agreement of counsel no evidence will be presented by the Plaintiffs with respect to the minor's medical condition. This case arises out of an alleged flooding condition with resp ct to a home sold by Defendant to Plaintiffs, which allegedly resu ted in a moldy condition. The trial is expected to last two days. Pursuant to an agreement of counsel, each side will have four peremptory challenges for a total of eight. Defendant has indicated that it will be filin6 a motion in limina to assign the Plaintiffs' claim under the; Pennsylvania Unfair Trade Practices and Consumer Protection Law to disposition by the trial judge pursuant to certain case la ; Defendant's counsel has indicated that he wishes to resear h this issue further before deciding whether to agree to this assignment. i L In the event that the claim is assigned to the trial judge, the understanding of counsel is that the nonjury trial would be conducted on that claim at the same time as the other clair?s are litigated before the jury, with closing arguments on the n'n-jury claim to be made outside the presence of the jury. Plaintiffs' counsel has indicated that there ill be no expert testimony presented by Plaintiffs with respect t the diminution of value of their property. Pursuant to an agreement of counsel, the report of an expert of Defendant, Dr. Scalla., shall be supplied to Plai tiffs' counsel within 7 days of today's date. With respect to settlement negotiations, it des not appear that the parties are very far apart monetarily, butithere may be some difficulty in reaching a settlement notwithstanding. Richard H. Wix, Esquire 4705 Duke. Street Harrisburg, PA 17109 For the Plaintiffs Kevin M. French, Esquire 221 East Chestnut Street Lancaster, PA 17602 For the Defendant Court Admin Prothonotary pcb By the Court, ORIGINAL HARTMAN UNDERHILL & BRUBAKER LLP Kevin M. French, Esquire Attorney I.D. No. 47589 221 East Chestnut Street Attorneys for Defendant Lancaster, PA 17602 (717) 299-7254/(717) 299-7254 (facsimile) PETER S. JOYCE, MELINDA S. IN THE COURT OF COMMON PLEAS OF JOYCE & HOPE JOYCE, A MINOR, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CHARTER HOMES BUILDING COMPANY, Defendant : No. 05-3693 CIVIL ACTION - LAW DEFENDANT'S MOTION IN LIMINE RE: ASSIGNMENT OF PLAINTIFFS' CLAIM UNDER THE UNFAIR TRADE PRACTICES & CONSUMER PROTECTION LAW TO TRIAL JUDGE FOR DISPOSITION Pursuant to the Court's Pretrial Conference Statement dated June 10, 2009, Defendant, Charter Homes Building Company ("Charter Homes"), moves in limine to assign Count 1 of Plaintiffs' Complaint asserting a claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law to the Trial Judge for Disposition, and in support states as follows: In Count 1 of their Complaint, Plaintiffs have asserted a claim against Charter Homes under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa.C.S.. §201-1, et seq. ("UTPCPL"). 2. Plaintiffs' claim under the UTPCPL is based upon the contention that, at the time of the sale of the house to Plaintiffs in May, 2001, Charter Homes had a duty to disclose that water had entered the basement of the home in connection with Hurricane Floyd in September, 1999, when the house was being used as a sales model by Charter 100552132.1) Homes, even though Plaintiffs have not alleged nor identified any defect in the design or construction of the house, nor have they alleged or adduced any evidence in discovery of any ongoing water infiltration in the basement of the house after the water was cleaned up immediately following Hurricane Floyd. To the contrary, all of the evidence adduced in discovery, including Plaintiffs' deposition testimony, establishes that there was no additional water infiltration in the basement after Hurricane Floyd and that Plaintiffs were able to use and, in fact, used the basement until Hurricane Ivan struck in September, 2004, three and a half years after they moved into the house. The water infiltration from Hurricane Ivan was cleaned-up within days after Ivan struck, and Plaintiffs have had no instances of water in the basement thereafter. 3. Plaintiffs' UTPCPL claim is based upon the catch-all provision of the UTPCPL, 73 Pa.C.S. §201-2 (xxi)(Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.). 4. Count 2 of Plaintiffs' Complaint asserts a common law fraud claim and is based solely upon the same allegations contained in Count 1 of Plaintiffs' Complaint. 5. To prove their claim under the catch-all provision of the UTPCPL, Plaintiffs must prove all the elements necessary to prove common law fraud by clear and convincing evidence. Skurnowicz v. Lucci, 798 A.2d 788, 794 (Pa. Super. 2002); Booze v. Allstate Ins. Co., 750 A.2d 877, 880 (Pa. Super. 2000); But cf., Commonwealth v Percudani, 825 A.2d 743 (Pa. Cmwlth. 2003). 6. With respect to their claim under the UTPCPL, Plaintiffs do not have a right to a jury trial for a private action brought under §9.2 of the UTPCPL, 73 Pa.C.S. {00552132.1} 2 §201-9.2(a). See Ihnat v. Plover, 203 WL 22319459 (Pa. Com. Pl., August 4, 2003); Oppenheimer v. York International, 2002 WL 31409949 (Pa. Com. Pl., October 25, 2002), copies of which are attached hereto as Exhibit A. 7. In Ihnat, Judge R. Stanton Wettick, Jr., of the Court of Common Pleas of Allegheny County, in striking plaintiff's demand for a jury trial for a cause of action based on §9.2 of the UTPCPL, after a thorough and thoughtful analysis of the issue, held that the UTPCPL does not include a right to demand a trial by jury. In Oppenheimer, Judge Shepherd of the Court of Common of Pleas of Philadelphia County, also held that the UTPCPL does not include a right to a jury trial, citing Judge Herron's decision in Commonwealth v. BASF Corp., 2001 WL 1807788 (Pa. Com. Pl. March 15, 2001). 8. Judge Wettick observed in Ihnat that, "The parties agree that a judge-rather than a jury-determines whether to award up to three times actual damages sustained, counsel fees, and any necessary additional relief. The dispute is whether a judge or jury determines whether to award actual damages pursuant to the first sentence of §9.2." Ihnat, 203 WL at 2. 9. Judge Wettick further observed that the UTPCPL does not include the right to demand a trial by jury and concluded that because there was no UTPCPL-based cause of action that existed at the time the Pennsylvania Constitution was adopted, plaintiff had no right to a jury trial with respect to her UTPCPL claims. Ihnat, 203 WL at 7. 10. Judge Wettick concluded, "Consequently, Consumer Protection Law causes of action will be tried by a judge, rather than a jury. However, if the causes of action under the Consumer Protection Law are limited to claims for triple damages and counsel (00552132.1) 3 fees in the event the plaintiff recovers under separate common law causes of action that also come within the scope of §9.2, a trial judge's responsibility for the Consumer Protection Law claims will be limited to determining whether the plaintiff who prevails on his or her common law claims before a jury should receive enhanced damages and counsel fees." Anat, 203 WL at 8. 11. Judge Wettick further observed, "For a common law misrepresentation claim, the plaintiff must prove by clear and convincing evidence that there has been (1) a representation (which is material to the transaction at hand), (2) made falsely with knowledge or its falsity or recklessness as to whether it is true or false, (3) with the intent of misleading another into relying upon it, (4) justifiable reliance on the misrepresentation, and (5) resulting in injury proximately caused by the reliance. Debbs v. Chrysler Corp., 810 A.2d 137, 155 (Pa.Super.2002). Where the issue is concealment, the seller must intentionally conceal a material fact to deceive the purchaser." Anat, 203 WLat4. 12. For the reasons set forth in the foregoing decisions, Charter Homes respectfully submits that Plaintiffs' claim under the UTPCPL must be heard and decided only by the Trial Judge and not the jury. 13. Charter Homes further respectfully submits that any evidence and argument that solely concerns Plaintiffs' claim under the UTPCPL should be presented and heard outside of the presence of the jury to avoid confusion on the part of the jury and prejudice to Charter Homes. {00552132.1} 4 WHEREFORE, for all of the foregoing reasons, Defendant, Charter Homes Building Company, respectfully submits that if Plaintiffs' claim under the Unfair Trade Practices and Consumer Protection Law is limited solely to whether Plaintiffs should be awarded enhanced damages or attorney's fees in the event Plaintiffs recover under their common law fraud cause of action, the Trial Judge's responsibility will be limited to determining whether to award enhanced damages or counsel fees. If, however, Plaintiffs' claim under the Unfair Trade Practices and Consumer Protection Law is not based solely upon Plaintiffs' common law fraud cause of action, any such claim will be tried solely by the Trial Judge rather than the jury. In either case, any evidence or argument (other than evidence and argument that concerns Plaintiffs' claim based upon common law fraud) shall be presented to and heard solely by the Trial Judge outside of the presence of the jury. Date: 2?' a 9 Respectfully submitted, HARTMAN UNDERHILL & BRUBAKER LLP Kevin M. French Attorney I.D. #47589 Attorneys for Defendant (00552132.1) 5 M http : //w eb2. w estl aw. com/pri nt/printstream. aspx?rs =WLW9.06&de sti n... Westlaw Delivery Summary Report for FRENCH,KEVIN M Date/Time of Request: Client Identifier: Database: Citation Text: Lines: Documents: Images: Thursday, June 25, 2009 06:58 Central JOYCE V CHARTER HOMES PA-CS Not Reported in A.2d 410 0 The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters, West and their affiliates. Westlaw Not Reported in A.2d Not Reported in A.2d, 2003 WL 22319459 (Pa.Com.Pl.) (Cite as: 2003 WL 22319459 (Pa.Com.Pl.)) N Only the Westlaw citation is currently available. Pennsylvania Court of Common Pleas. Edward W. IHNAT, Plaintiff V. John A. POVER, Mark Battaline, William J. Bytzura and Metropolitan Life Insurance Company, Defendants No. GD94-17465. Aug. 4, 2003. Kenneth R. Behrend, Pittsburgh, PA, for Plaintiffs. William M. Wycoff, Kimberly A. Brown, Kevin P. Allen, Pittsburgh, PA, for Defendant Metropolitan Life Insurance Company. OPINIONAND ORDER OF COURT DATED AUGUST 4, 2003 WETTICK, J. *1 The issue that I address is whether there is a right to a jury trial for private actions brought under § 9.2 of the Unfair Trade Practices and Consumer Protection Law ("Consumer Protection Law"), 73 P.S. § 201-9.2(a).FNt This provision reads as follows: I of 9 6/25/2009 7:58 AM M http: //w eb2.westi aw. com/print/printstream. aspx?rs=WLW9.06&destin... FNI. There are more than two hundred lawsuits pending in this court involving alleged improper sales practices of insurance companies. Through rulings issued in the Ihnat v. Pover litigation, I have decided numerous common legal issues which counsel have identified. These rulings apply to each of the insurance sales practices lawsuits. In this Opinion, I am addressing defendants' contention that plaintiffs' demands for a jury trial made in these pending lawsuits should be stricken. (a) Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act, may bring a private action to recover actual damages or one hundred dollars ($100), whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained, but not less than one hundred dollars ($100), and may provide such additional relief as it deems necessary or proper. The court may award to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorney fees. The parties agree that a judge-rather than a jury-determines whether to award up to three times actual damages sustained, counsel fees, and any necessary additional relief. The dispute is over whether a judge or a jury determines whether to award actual damages pursuant to the first sentence of § 9.2. Under settled law, the General Assembly may enact legislation providing for a trial by jury for any cause of action. However, where legislation does not provide for a trial by jury, a statutory action shall be tried without a jury unless Article 1. Section 6 of the Pennsylvania Constitution guarantees a jury trial. Article I, Section 6 of the Pennsylvania Constitution requires a jury trial only where the common law provided for a jury trial in 1790. In determining whether a statutory action is governed by Article 1, Section 6, a court must determine whether the causes of action residing in the legislation existed at the time the Constitution was adopted in 1790 and if so, whether there existed a right to a jury trial for these causes of action. See Mishoe v. Erie Insurance Co.. 824 A.2d 1153 (Pa 2003), where the Court ruled that a party is not entitled to a jury trial in an action for bad faith against an insurer, codified in 42 Pa.C.S. § 8371, because the cause of action (a cause of action separate and independent from a claim on the insurance contract itself) did not exist at the time of the adoption of the Pennsylvania Constitution; Wertz v. Chapman Township, 559 Pa. 630, 741 A .2d 1272 (Pa., 1999), where the Court ruled that a plaintiff seeking monetary damages under the Pennsylvania Human Relations Act was not entitled to a jury trial because no cause of action for sexual discrimination existed in 1790; and Commonwealth v. One (1) 1984 Z-28 Camaro Coupe, 530 Pa.523 610 A.2d 36 (Pa 1992), where the Court held that the owner of property subject to forfeiture under the Controlled Substances Forfeitures Act was entitled to a jury trial because there was a right to a jury trial in forfeiture actions in 1790.. *2 Plaintiffs do not argue that the General Assembly has granted a trial by jury. Plaintiffs claim that they are entitled to a jury trial under Article L Section 6 of the Pennsylvania Constitution because of the nature of the statutory proceeding. According to plaintiffs, the private action under § 9.2 does not enlarge any common law causes of action, it only provides additional remedies for common law actions. Where common law causes founded in tort and contract are established, $9.2 permits the court, in its discretion, to award up to three times actual damages sustained and reasonable attorney fees. I agree with plaintiffs that they would be entitled to a jury trial if § 9.2(a) only provided for a discretionary award of up to three times actual damages and counsel fees for common law causes of action. However, the primary purpose of the Consumer Protection Law is to provide broader protections to persons purchasing goods or services for personal, family, or household 2 of 9 6/25/2009 7:58 AM http://web2,westlaw.com/print/printstream.aspx?rs=WLW9.06&destin purposes ("consumers") than those protections provided by tort and contract law. The Consumer Protection Law-unlike tort and contract law-creates rules for consumer transactions that differ from the rules for commercial transactions because of the consumer's lack of bargaining power, lack of knowledge, and lack of sophistication. It identifies business practices which-while not constituting common law fraud-place the consumer at an unfair disadvantage; it bars their use; and it creates a private action for a consumer who loses money or property as a result of the use of these practices.FN2 FN2. Section 9.2(a) permits a consumer to recover any ascertainable loss of money or property as a result of the use or employment of any method, act, or practice declared unlawful by § 3 of the law (73 P.S. § 201-3). Section 3 declares unlawful twenty-one unfair methods of competition and unfair and deceptive acts or practices as defined in subclauses (i) through (xxi) of clause (4) of Section 2 (73 P.S. § 201-20)(i) thro (xxi)) and regulations adopted by the Attorney General under § 3.1 (73 P.S. ? 201-3.1) as may be necessary for the enforcement and administration of the Consumer Protection Law. SECTION 201-2(4) Presently, there are twenty-one unlawful practices for which a private action under § 9.2 may be maintained. The following unlawful practices described in 201-2(4) could not, by themselves, serve as the basis for any common law causes of action: (xii) Promising or offering prior to time of sale to pay, credit or allow to any buyer, any compensation or reward for the procurement of a contract for purchase of goods or services with another or others, or for the referral of the name or names of another or others for the purpose of attempting to procure or procuring such a contract of purchase with such other person or persons when such payment, credit, compensation or reward is contingent upon the occurrence of an event subsequent to the time of the signing of a contract to purchase; (xiii) Promoting or engaging in any plan by which goods or services are sold to a person for a consideration and upon the further consideration that the purchaser secure or attempt to secure one or more persons likewise to join the said plan; each purchaser to be given the right to secure money, goods or services depending upon the number of persons joining the plan. In addition, promoting or engaging in any plan, commonly known as or similar to the so-caller "Chain-Letter Plan" or "Pyramid Club." The terms "Chain-Letter Plan" or "Pyramid Club" mean any scheme for the disposal or distribution of property, services or anything of value whereby a participant pays valuable consideration, in whole or in part, for an opportunity to receive compensation for introducing or attempting to introduce one or more additional persons to participate in the scheme or for the opportunity to receive compensation when a person introduced by the participant introduces a new participant. As used in this subclause the term "consideration" means an investment of cash or the purchase of goods, other property, training or services, but does not include payments made for sales demonstration equipment and materials for use in making sales and not for resale fianished at no profit to any person in the program or to the company or corporation, nor does the term apply to a minimal initial payment of twenty-five dollars ($25) or less: *3 (xvii) Making solicitations for sales of goods or services over the telephone without first clearly, affirmatively and expressly stating: (A) the identity of the seller; of 9 6/25/2009 7:58 AM (B) that the purpose of the call into sell goods or services; (C) the nature of the goods or services; and http: //w eb2. w estl aw . com/print/printstream. aspx?rs=WLW9.06&desti n... (D) that no purchase or payment is necessary to be able to win a prize or participate in a prize promotion if a prize promotion is offered. This disclosure must be made before or in conjunction with the description of the prize to the person called. If requested by that person, the telemarketer must disclose the no-purchase/no-payment entry method for the prize promotion; (xviii) Using a contract, form or any other document related to a consumer transaction which contains a confessed judgment clause that waives the consumer's right to assert a legal defense to an action: (xx) Failing to inform the purchaser of a new motor vehicle offered for sale at retail by a motor vehicle dealer of the following: (A) that any rustproofing of the new motor vehicle offered by the motor vehicle dealer is optional: (B) that the new motor vehicle has been rustproofed by the manufacturer and the nature and extent, if any, of the manufacturer's warranty which is applicable to that rustproofing; The requirements of this subclause shall not be applicable and a motor vehicle dealer shall have no duty to inform if the motor vehicle dealer rustproofed a new motor vehicle before offering it for sale to that purchaser, provided that the dealer shall inform the purchaser whenever dealer rustproofing has an effect on any manufacturer's warranty applicable to the vehicle. This subclause shall not apply to any new motor vehicle which has been rustproofed by a motor vehicle dealer prior to the effective date of this subclause. For a common law misrepresentation claim, the plaintiff must prove by clear and convincing evidence that there has been (1) a representation (which is material to the transaction at hand), (2) made falsely with knowledge of its falsity or recklessness as to whether it is true or false, (3) with the intent of misleading another into relying on it, (4) justifiable reliance on the misrepresentation, and (5) resulting in injury proximately caused by the reliance. Debbs v. Chrysler Corp. 810 A.2d 137, 155 (Pa.SWer.2002). Where the issue is concealment, the seller must intentionally conceal a material fact to deceive the purchaser. Id. The Consumer Protection Law permits a plaintiff to recover damages caused by the following unlawful practices without meeting the requirements for common law fraud of materiality, scienter, and intention by the declarant to induce action: FN3 FN3. Also, the Consumer Protection Law does not require proof by clear and convincing evidence. (i) Passing off goods or services as those of another; (ii) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services; 1 of 9 6/25/2009 7:58 AM http: //web2. w estl aw. com/print/pri ntstre am. aspx?rs=WLW9.06&destin... (iii) Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by, another; *4 (iv) Using deceptive representations or designations of geographic origin in connection with goods or services; (v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have; (vi) Representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand; (vii) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another; In DiLucido v. Terminix International Inc 450 Pa Super 393, 676 A .2d 1237, 1241 (Pa Super 1996), the Court said that the consumers were correct in their contention that they were not required to prove the elements of common law fraud to establish violations of (ii) and (v). However, consumers are not relieved of the burden of establishing a causal connection to or reliance on the alleged misrepresentation. The only two practices that would appear to also form a basis for a common law fraud/misrepresentation cause of action are (xv) "Knowingly misrepresenting that services, replacements or repairs are needed if they are not needed," and the catchall provision (xxi) "Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding." Prior to 1996, the catchall provision (then numbered (xvii)) referred only to engaging "in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding," and the case law held that the elements of common law fraud must be proven. Prime Meats, Inc. v. Yochim. 619 A.2d 769, 73 (Pa Super 1993). In Commonwealth v. Percudani. 825 A.2d 743 (Pa.Cmwlth.2003), the Commonwealth Court ruled that the 1996 amendment to the section, to include "deceptive conduct," meant that a plaintiff no longer had to prove the elements of common law fraud in order to state a cause of action under the catchall provision. ATTORNEY GENERAL REGULATIONS The Consumer Protection Law ( 201-3.1 authorizes the Attorney General to adopt such rules and regulations as may be necessary for the enforcement and administration of the Consumer Protection Law. A private action under § 9.2 may be brought based on these regulations, because 201-3's definition of "unlawful acts or practices" includes unfair practices as defined in regulations promulgated by the Attorney General under § 3.1. The purpose of the regulations is to provide additional protection to consumers where the conduct will not necessarily constitute an unfair method of competition or unfair act or practice under 201-20). The Attorney General has adopted regulations pursuant to § 3.1 governing Automotive Industry Trade Practices (37 Pa.Code & 301.1 etsea.); Loan Broker Trade 5 of 9 6/25/2009 7:58 AM http: //w eb2. west] aw. com/pri nt/printstream. aspx?rs= WLW9.06&desti n... Practices (37 Pa.Code § 305.1 etsQ.); and Dog Purchaser Protection (37 Pa.Code § 309.1 etsecL). *5 A section of the Automotive Industry Trade Practices governing advertising and sales presentations describes twenty-six unfair trade practices (§ 301.2), a section governing the manufacturer lists five unfair trade practices (§ 301.3); a section governing motor vehicle dealers lists ten unfair acts (§ 301.4); and a section governing repair shops (§ 301.5) lists eleven unfair practices. These are detailed regulations. Many mandate specific disclosures that will permit consumers to make informed decisions. Most of the others bar conduct that would not be a basis for any common law causes of action. While the other regulations governing loan brokering and dog sales practices are not as extensive, few, if any, of the practices defined as unlawful acts or practices could be reached by the common law. OTHER LEGISLATION In addition to conduct declared to be an unfair practice in 201-20) of the Consumer Protection Law and conduct declared unlawful in regulations promulgated by the Attorney General, violations of other consumer protection legislation, which is not grounded in the common law, serve as a basis for a private action under § 9.2. The following laws have provisions stating that a violation of this law shall be a violation of the Consumer Protection Law: Automobile Lemon Law (73 P.S. § 1961); New Motor Vehicle Damage Disclosure Act (73 P.S. § 1970.8); Health Club Act (73 P.S. ? 2175(a)); Credit Services Act (73 P.S. § 2190(a)); Plain Language Consumer Contract Act (73 P.S. & 2207(b)); Telemarketer Registration Act (73 P.S. § 2246(a)); Unsolicited Telecommunication Advertisement Act (73 P.S. § 2250.50,); and Fair Credit Extension Uniformity Act (73 P.S. § 2270.50). The practices which these laws mandate in some instances and prohibit in other instances are not codifications of common law causes of action. They provide protections that the common law does not provide. In addition, violations of other consumer protection legislation which does not expressly provide that such violations are deemed a violation of the Consumer Protection Law may also constitute unfair trade practices. See Gabriel v. O'Hara. 368 Pa.Super. 383. 534 A.2d 488, 494 n 20 (Pa Super 1987). If § 9.2 of the Consumer Protection Law was intended to replace common law causes of action for which there is a right to a jury trial, possibly there would be a right to a jury trial for conduct coming within § 9.2 for which there was a common law right to jury trial. However, I need not address this issue because § 9.2 supplements-rather than replaces-any causes of action founded in the common law or other consumer protection legislation. The remedies of the Consumer Protection Law are not exclusive, but are an addition to other causes of action and remedies. Wallace v. Pastore._ 742 A.2d 1090. 1093 (Pa.Super.1999). Thus, in a complaint seeking recovery under § 9.2 of the Consumer Protection Law, plaintiffs can include in other counts any common law causes of action for which there is a right to a jury trial. *6 If, in their consumer protection causes of action, plaintiffs had elected to utilize only the damage provisions of § 9.2 (i.e., they raise only common law fraud counts with separate claims under the Consumer Protection Law for three times actual damages and counsel fees if the common law fraud counts are decided in their favor), the role of the judge would be limited to deciding whether to award additional damages and relief in the event that the jury rules in plaintiffs' favor on their common law 5 of 9 6/25/2009 7:58 AM http://web2.westlaw.com/print/printstream.aspx?rs=WLW9.06&destin... causes of action. However, plaintiffs have not limited their claims under the Consumer Protection Law in this fashion. Their complaints include claims based on § 9.2 that do not require plaintiffs to establish each of the elements of common law causes of action. Since these are not common law causes of action, the Constitution does not provide for a jury trial. This ruling that plaintiffs are not entitled to a jury trial for § 9.2 claims is consistent with the only three rulings, of which counsel for the parties and I am aware, that have addressed the right to a jury trial in private actions under § 9.2. In Greiner v. Erie Insurance Exchange. 2000 WL 3371 1041 (C.P.Phila.2000), Judge Herron ruled that the plaintiff had no right to demand a jury trial for her Consumer Protection Law claims. He offered the following explanation: The UTPCPL does not include a right to demand a trial by jury. Nevertheless, the Plaintiff argues that the UTPCPL does no more than codify common law fraud, for which the Pennsylvania constitution allows a plaintiff to demand a jury trial. This is not entirely correct. It is true that a common law action that allowed a jury trial prior to 1790 and that was codified after the ratification of the Pennsylvania Constitution may serve as a basis for a right to a trial by jury. See Commonwealth v. One 1984 Z-28 Camaro Coupe, 530 Pa. 523, 610 A.2d 36 (1992) (allowing jury trials for violations of the Controlled Substances Forfeiture Act because forfeiture cases had a common law basis that afforded the right to trial by jury); William Goldman Theaters. Inc. v. Dana, 405 Pa. 83, 93-94, 173 A.2d 59, 64-65 (1961) (permitting jury trials for violations of the Motion Pictures Control Act of 1959). However, courts have been "unable to characterize all the various claims under the UTPCPL as fraud or deceit." DiLucido v. Terminix Infl, Inc., 450 Pa.Suner. 393, 400, 676 A.2d 1237, 1240 (1996). Indeed, a plaintiff need not prove the elements of fraud to establish violations of UTPCPL Sections 201-2(4) ii and (xvi), two provisions invoked by the Plaintiff here. Id., 450 Pa.Super. at 401, 676 A.2d at 1241. Because the UTPCPL does not simply codify common law fraud and was not enacted until 1968, there is no UTPCPL-based action that existed at the time the Pennsylvania constitution was adopted. As a result, the Plaintiff has no right to demand a jury trial for her UTPCPL claims. At 7-8. In Commonwealth v. BASF Corn., 2001 WL 1807788 (C.P.Phila.2001), Judge Herron struck the plaintiffs demand for a jury trial as to the plaintiffs claims under the Consumer Protection Law, citing his ruling in Greiner v. Erie Insurance Exchange, supra. *7 U Oppenheimer v. York International. 2002 WL 31409949 (C.P.Phila.2002), Judge Sheppard of the Common Pleas Court of Philadelphia issued an opinion which struck the plaintiffs' demand for a jury trial for their Consumer Protection Law Claims, citing Judge Herron's rulings that the Consumer Protection Law does not include a right to a jury trial. In Gabriel v. O'Hara,supra, the Superior Court considered the relationship of § 9.2 private actions to common law trespass and assumpsit actions to determine whether private actions under § 9.2 are governed by the two year limitation period governing actions for fraud and deceit or by the six year catchall limitation. There is language in the Court's opinion which supports defendants' position that the Consumer Protection Law reaches conduct which trespass and assumpsit causes of action do not reach. The Court stated: The UTPCPL supplements rather than supplants traditional common law remedies with per se liability for a variety of unfair 7 of 9 6/25/2009 7:58 AM http: //w eb2. w estl aw. com/print/printstream. aspx?rs=WLW9.06&desti n... trade practices. 534 A.2d at 491 (footnote omitted). Instead, the UFPCPL creates a civil action which is separate and distinct from appellants' other causes of action and for which the legislature provided no limitations period. Id. at 495. The Gabriel opinion (id at 496) also quoted the following language of the Arizona Supreme Court in Murrv v. Western American Mortgage Co.. 124 Ariz. 387, 604 P .2d 651 (Ariz 1979): ... the act creates a new liability. Although the act renders illegal the use of fraud in connection with the sale of merchandise, the elements of a claim for relief are not necessarily identical to those of a common law fraud action. Since the Consumer Fraud Act creates a cause of action separate from common law fraud, an action commenced thereunder must be brought within one year as [the catchall statute] requires. Id at 654. However, elsewhere in the Gabriel opinion, the Court stated that the Consumer Protection Law "embraces actionable conduct which sounds in assumpsit as well as trespass and which parallel actions upon contracts as well as those arising in tort." 534 A.2d at 495 (footnote omitted). In deciding what limitation period should apply, Gabriel did not need to (and did not) decide whether the private action under § 9.2 includes practices that are in addition to assumpsit or trespass claims. It ruled that the six year limitation period applied because not all claims brought under § 9.2 could be characterized as either tort (two years) or contract (four years). In summary, the primary purpose of the Consumer Protection Law is to provide broader protection to consumers than protections afforded through common law trespass or assumpsit actions. Consequently, Consumer Protection Law causes of action will be tried by a judge, rather than a jury. However, if the causes of action under the Consumer Protection Law are limited to claims for triple damages and counsel fees in the event the plaintiff recovers under separate common law causes of action that also come within the scope of $9.2, a trial judge's responsibility for the Consumer Protection Law claims will be limited to determining whether the plaintiff who prevails on his or her common law claims before a jury should receive enhanced damages and counsel fees.FN4 FN4. In this Opinion, I am not considering how a court will try cases with a common law fraud cause of action and with a claim under § 9.2 that is not limited to common law fraud. *8 For these reasons, I enter the following Order of Court: ORDER OF COURT On this 4 day of August, 2003, it is ORDERED that plaintiffs' demands for a jury trial for causes of action based on § 9.2 of the Consumer Protection Law are stricken. Counsel for Metropolitan Life Insurance Company shall furnish copies of this Opinion and Order of Court to other counsel. 3 of 9 6/25/2009 7:58 AM http://web2.westlaw.com/print/printstream.aspx?rs=WLW9.06&destin... Pa.Com.Pi.,2003. Ihnat v. Pover Not Reported in A.2d, 2003 WL 22319459 (Pa.ComPl.) END OF DOCUMENT © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. of 9 6/25/2009 7:58 AM http://web2.westlaw.com/print/printstream.aspx?rs=WLW9.04&desti ... Westlaw Delivery Summary Report for FRENCH,KEVIN M Date/Time of Request: Friday, May 15, 2009 12:13 Central Client Identifier: JOYCE V CHARTER HOMES Database: PA-CS Citation Text: Not Reported in A.2d Lines: 565 Documents: I Images: 0 The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters, West and their affiliates. Westlaw: Not Reported in A.2d Not Reported in A.2d, 2002 WL 31409949 (Pa.ComPI.) (Cite as: 2002 WL 31409949 (Pa.Com.PI.)) C Only the Westlaw citation is currently available. Pennsylvania Court of Common Pleas. Shelbie OPPENHEA ER, and Palma Mitchell Plaintiffs, V. YORK INTERNATIONAL, Corporation Defendant. No. 4348 MARCHTERM 2002. Oct. 25, 2002. Buyers brought class action against manufacturer of heating, ventilating, and air conditioning (HVAC) units and hot surface igniters. Manufacturer brought motion to dismiss. The Court of Common Pleas, Sheppard, J., held that: (1) complaint for breach of express warranty indicated what specific warranty was made and indicated awareness of and reliance on warranty; (2) complaint for breach of implied warranty of fitness for a particular purpose failed to state the particular purpose and failed to allege manufacturer's knowledge of that particular purpose; (3) economic loss doctrine did not bar Unfair Trade Practices and Consumer Protection Law claims in the nature of fraud and intentional tort; (4) buyers sufficiently pled Unfair Trade Practices and Consumer Protection Law claims; (5) buyers were not entitled to jury trial on Unfair Trade Practices and Consumer Protection Law claims; and (6) buyers adequately asserted intent element in fraud and fraudulent misrepresentation claims. Objections sustained in part, otherwise overruled. West Headnotes 1 of 12 5/15/2009 1:13 PM http://web2.westlaw.com/print/printstream.aspx?rs=WLW9.04&desti... J U Sales 343 X434 343 Sales 343VM Remedies of Buyer 343VI1I D Actions and Counterclaims for Breach of Warranty 343k433 Pleading 343k434 k. Allegations of Breach as Cause of Action. Most Cited Cases Buyers' complaint against air conditioning unit manufacturer for breach of express warranty adequately indicated what specific express warranty was made and indicated awareness of, and reliance on, the warranty; complaint related statements manufacturer made on its website describing its products as, among other things, enabling users "to significantly reduce operating costs," and complaint alleged that user manuals stated that the units will "ensure many years of satisfactory service.' 13 Pa.C.S. § 2-313. 121 Sales 343 C=434 343 Sales 343 VIII Remedies of Buyer 343VII1 D Actions and Counterclaims for Breach of Warranty 343k433 Pleading 343k434 k Allegations of Breach as Cause of Action. Most Cited Cases Buyers' complaint against manufacturer of heating, ventilation, and air conditioning (HVAC) units for breach of implied warranty of fitness for a particular purpose failed to state the particular purpose and failed to allege manufacturer's knowledge of that particular purpose contemplated by buyer; only reference in complaint to any use of the HVACs at issue was ordinary use of "in heating," and response memorandum only set forth qualifying characteristics such as efficiency, reliability, and economy, rather than any particular purpose. 131 Antitrust and Trade Regulation 29T X138 29T Antitrust and Trade Regulation 29TIII Statutory Unfair Trade Practices and Consumer Protection 29TM(A) In General 29Tkl33 Nature and Elements 29Tkl38 k. Reliance; Causation; Injury, Loss, or Damage. Most Cited Cases (Formerly 921-Ik40 Consumer Protection) Economic loss doctrine did not bar buyers' Unfair Trade Practices and Consumer Protection Law claims against manufacturer of heating, ventilation, and air conditioning (HVAC) units in the nature of fraud and intentional tort; claims did not allege negligence, but rather that manufacturer engaged in unconscionable commercial practices, deception, fraud, and false promises, knowingly misrepresenting material facts as to the character of the HVACs. 73 P.S. § 201-2(4). W Antitrust and Trade Regulation 29T X358 29T Antitrust and Trade Regulation 29THI Statutory Unfair Trade Practices and Consumer Protection 29TII1(E) Enforcement and Remedies 2 of 12 5/15/2009 1:13 PM http: //web2.westlaw.com/print/printstream.aspx?rs=WLW9.04&desti ... 29TW Actions 29Tk356 Pleading 29Tk358 k. Particular Cases. Most Cited Cases (Formerly 92FW8 Consumer Protection) Buyers sufficiently pled Unfair Trade Practices and Consumer Protection Law claims against manufacturer of heating, ventilation, and air conditioning (HVAC) units; buyers pled misrepresentations of material facts on manufacturer's website and in the user manuals, namely the efficiency of the units and assurance that the units would deliver years of quality service, when, in fact, buyers had to incur repair costs repeatedly, and buyers alleged that manufacturer knew the units were defective. 73 P.S. §§ 201-2(4), 201-2(3). 151 Jury 230 a=14(1.2) 230 Jury 23011 Right to Trial by Jury 230kl4 Particular Actions and Proceedings 230k140.2) k. Antitrust and Trade Regulation Cases. Most Cited Cases (Formerly 230kl4(l )) Buyers of manufacturer's allegedly defective heating, ventilation, and air conditioning (HVAC) units were not entitled to jury trial on complaint against manufacturer for violations of Unfair Trade Practices and Consumer Protection Law. 73 P.S. & 201-1 etseo. 161 Products Liability 313A X243 313A Products Liability 313AIII Particular Products 313Ak242 Heating Equipment and Appliances 313Ak243 k. In General. Most Cited Cases (Formerly 313Ak73, 313Ak53) Products Liability 313A X249 313A Products Liability 313AIII Particular Products 313Ak247 Cooling Equipment and Appliances 313Ak249 k. Air Conditioners. Most Cited Cases (Formerly 313Ak53) Products Liability 313A X315 313A Products Liability 313AN Actions 313AIV(B) Pleading 313Ak315 k. Representations or Concealment; Fraud. Most Cited Cases 3 of 12 5/15/2009 1:13 PM http: //web2.west] aw . com/print/printstream.aspx?rs=WLW9.04&desti ... (Formerly 313Ak73) Buyers of manufacturer's allegedly defective heating, ventilation, and air conditioning (HVAC) units adequately asserted in fraud and fraudulent misrepresentation claims that manufacturer intended buyers to rely upon its alleged misrepresentations; it was reasonable to infer that manufacturer intended buyers to rely on statements it made on its website and in its user manuals which formed basis of fraud complaint. ORDER SHEPPARDI J. *1 AND NOW, this 25th day of October 2002, upon consideration of defendant York International's Preliminary Objections to the Class Action Complaint, the plaintiffs' response in opposition, the respective memoranda, all matters of record and in accord with the contemporaneous Opinion, it is ORDERED that: (1) Defendant's Objection seeking the dismissal of Count IV is Sustained; (2) Defendant's Objection seeking to strike the jury demand is Sustained; (3) Defendant's remaining Objections are Overruled; (4) Defendant is ORDERED to file an Answer to the remaining averments within twenty-two (22) days of the date of this Order. OPINION Before the court are the Preliminary Objections ("Objections") of defendant, York International, Corp. ("defendant") to the class action Complaint (the "Complaint") of plaintiffs, Shelbie Oppenheimer and Palma Mitchell ("plaintiffs"). The Complaint contains twelve Counts, however, plaintiffs have agreed to the dismissal of Counts VII, VIII, IX, and XI. See Plaintiffs' Response to Defendant's Preliminary Objections, IT 21, 23, 28, 34. For the reasons discussed, the court will issue a contemporaneous Order sustaining the Objections to Count IV, but overruling the remaining Objections. Further, the Motion to Strike the jury demand will be granted. BACKGROUND Named plaintiffs, Oppenheimer and Mitchell (collectively, "plaintiffs"), seek to represent a class of people who, since 4 of 12 5/15/2009 1:13 PM http: //web2.westlaw. com/print/printstream.aspx?rs=WLW9.04&desti ... 1993, purchased allegedly defective heating, ventilating, and air conditioning units ("HVACs"), and hot surface igniters, manufactured and/or sold by defendant, York International Corporation, ("York"). Defendant, York, is a corporation with its principal place of business in York, Pennsylvania. Complaint, ¶¶ 8-9. It manufactures and distributes HVACs and hot surface igniters throughout the United States. Id. Plaintiffs are individual customers who paid approximately $1800 each for their units during the putative class period. Id., ¶ 16.Plaintiff Oppenheimer claims that she has incurred about $1,200 to repair the unit since its purchase, and plaintiff Mitchell about $450. Id., 1119-23. Plaintiffs contend the pertinent products were defective, and that York was aware of the defects as early as 1994 but neither cured nor issued a recall of the defective products. Id., ¶ ¶ 2, 25-26, 28. The Complaint alleges that defendant markets itself on its web-site as a leader, "continuing to build industry leadership by advancing products that enable users to significantly reduce operating costs."Id., ¶ 18.The Complaint further alleges that the HVACs' Users Information Manual, presumably made available to customers who purchase a York HVAC, states that "[t]his compact, energy-efficient furnace has been positioned, designed, manufactured of high-quality materials and has passed many rigorous inspections and tests to ensure many years of satisfactory service."Id., ¶ 17. *2 Defendant has filed Objections to the following Counts: (1) Count I, a claim of breach of express warranty; (2) Count IV, a claim of breach of implied warranty of fitness; (3) Count VI, claims of violations of Pennsylvania's UTP/CPL; (4) Count X, a claim of fraud and fraudulent representation; and, (5) Count XII, a claim of fraud. Defendant argues that these Counts should be dismissed for insufficient pleading. Defendant also argues that Counts VI, X, and XII are further barred by the economic loss doctrine. Finally, defendant objects that Count VI should be either dismissed or severed because plaintiffs improperly joined legal and equitable claims. LEGAL STANDARDS 1. Demurrer Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure ("Pa. R.C.P.") allows for a demurrer based on legal insufficiency of a pleading. For the purposes of reviewing preliminary objections in the form of a demurrer, all well-pleaded material, factual averments and all inferences fairly deductible therefrom are presumed to be true. Tucker v. Philadelphia Daily News, 757 A.2d 938, 941-42 (Pa Super 2000) (citations omitted). When presented with preliminary objections in the nature of a demurrer, a court should sustain the objections where "it is clear and free from doubt from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish [its] right to relief." Bourke v. Kazaras. 746 A.2d 642, 643 (Pa Super 2000,). Furthermore, [I]t is essential that the face of the complaint indicate that its claims may not be sustained and that the law will not permit recovery. If there is any doubt, it should be resolved by the overruling of the demurrer. Put simply, the question presented by demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Bailey v. Storlazzi. 729 A .2d 1206, 1211 (Pa Super. 1999) (citations omitted). 5 of 12 5/15/2009 1:13 PM http://web2.westlaw.com/print/printstream.aspx?rs=WLW9.04&desf... 2. Economic Loss Doctrine The economic loss doctrine precludes recovery for economic losses in a tort action where the plaintiff has suffered no physical damage or damage to property. Spivack v. Berks Ridge Corp 402 Pa Super 73 78 586 A 2d 402 405 (1991)."In the traditional `property damage' cases, the defective product damages other property." East River Steamship Corp et al v. Transamerica Delaval. Inc.. 476 U.S. 858. 867 106 S Ct. 2295, 2300, 90 L Ed 2d 865 (1986). The economic loss doctrine is aimed at "maintaining the separate sphere of the law of contract and tort." New York State Elec. & Gas Corp v Westinghouse Elec. Corp., 387 Pa.Super. 537, 550, 564 A .2d 919, 925 (1989). The doctrine is applicable whether the dispute is between two commercial enterprises or brought by individuals. Jones v. General Motors Corp. 428 Pa Super 544, 546, 631 A.2d 665, 666 (1993,). Notwithstanding the availability to plaintiffs of recovery under warranty and contract law, this Court has not extended the economic loss doctrine to cover intentional torts.RIhi First Republic Bank v. Brand, our court held that the plaintiffs failure to allege physical damage does not bar its intentional torts claim. First Republic Bank v. Brand 50 Pa D & C 4th 329 (2000) (Herron, J.). The court found the following reasoning of the Western District of Wisconsin convincing: FN1. The United States Supreme Court case announcing the economic loss doctrine and its rationale dealt with claims in negligence and strict liability. East River Steamship Corp., v. Transamerica Delaval, Inc., 476 U.S. 858, 861, 106 S.Ct. 229, 2297 (1986). Similarly, in Pennsylvania, the doctrine was articulated in the context of negligence claims and product liability claims. Seee.g.,Lennon v. Wveth-Averst Laboratories Inc 2001 WL 755 944, *2 (Pa.Super.), Jones v. General Motors Corporation 428 Pa Super 544, 546, 631 A .2d 665, 665 (1993); New York State Electric & Gas Corp v Westinghouse Electric Corp 387 Pa Super 537, 544-545, 564 A .2d 919. 922-923 (1989); REM Coal Co.. Inc. v. Clark Equipment Co 386 Pa Super 401, 402, 563 A .2d 128, 128 (1989). In New York State Electric & Gas Corp. v. Westinghouse Electric Corp., the Superior Court of Pennsylvania declined to rule on whether "the bar to recovery of economic losses would apply in a tort product liability action based on fraud."New York State Electric & Gas Corp., at 551, 926. *3 Although it makes sense to allow parties to allocate the risk of mistakes or accidents that lead to economic losses, it does not make sense to extend the doctrine to intentional acts taken by one party to subvert the purposes of a contract.... Public policy is better served by leaving the possibility of an intentional tort suit hanging over the head of a party considering outright fraud. Stoughton Trailers. Inc. v. Henkel Corp 965 F Supp 1227 (W D Wis 199. This court subsequently reiterated its holding in cases involving fraud claims. SeeTeledvne Tech. Inc. v. Freedom Forge Corp 2002 WL 748898 (Pa Com Pl ) (Sheppard, J.); Amico v. Radius Communications 2001 WL 1807924 (Pa Com Pl) (Herron, J.). DISCUSSION (1) Count I-BREACH OF EXPRESS WARRANTY. 6 of 12 5/15/2009 1:13 PM y 1 http://web2.westlaw.com/print/printstream.aspx?rs=WLW9.04&desti... L U In Count 1, plaintiffs claim that defendant "expressly warranted" its products to be "free of defects" at the time of delivery, that defendant extended "written" limited warranties, and that defendant breached the purported warranties. Id., J¶ 36, 39.Defendant argues, however, that Count I should be dismissed because plaintiffs have failed to plead specifically the essential elements of a breach of express warranty claim. Objections, 14. According to defendant, plaintiffs failed to indicate what specific express warranty was made by York and, even if such warranty were specified, plaintiffs failed to allege awareness of, and reliance on, such warranty. Id., 15. Defendant further points out the lack of attached writings on which the express warranty claim is presumably based. Id., ¶ 6. An express warranty is a promise made by the seller to the buyer which relates to the goods. Nationwide Invurance Co., v. General Motors Corp./Chevrolet Motor Division. 533 Pa. 423, 433, 625 A.2d 1172, 1177 (1993). Under the UCC, a seller's statement describing the goods creates an express warranty that the goods will conform to that description "unless good reason is shown to the contrary."13 Pa.C.S. § 2-313. A successful claim for breach of express warranty must plead such statements, reliance on behalf of the consumer, which presumes an awareness of the warranty, and, finally, damages. See Price v. Chevrolet Motor Div. of Gen. Motors Corp., 765 A.2d 800 (Pa.Super.2000). The Complaint dutifully relates statements made by defendant York on its website describing its products as, among other things, enabling users "to significantly reduce operating costs." Complaint, 118. Furthermore, the Complaint alleges that the 1 VACs' user manuals state that the units will "ensure many years of satisfactory service."Id., $ 17.Whether such statements create an express warranty is an issue for the fact finder. See Babcock Poultry Farm. Inc. v. Shook. 204 Pa.Super. 141, 203 A.2d 399, 401 (1964). The Complaint also pleads, albeit in a perfimctory manner, reliance and causation. Id.. 1132-33, 38, 203 A.2d 399.In fact, allegations that plaintiffs were aware of the statements and relied on them, are reasonable inferences the court may make from the facts alleged as to the statements defendant made on its website and in the user manuals. See Tucker v. Philadelphia Daily News. 757 A.2d 938, 941-42 (Pa.SWer.2000). Finally, the Complaint pleads breach and damages. Complaint, IT 2-3, 20-23, 37. The court finds that plaintiffs adequately pled a breach of express warranty. *4 Defendants also object to plaintiffs' failure to attach a written warranty, arguing that it is essential to plaintiffs' pleading. Memorandum of Law in Support of Objections, p. 15. However, plaintiffs do not base their claim for breach of express warranty solely on a writing. Therefore, the writing is not an indispensable attachment under Pa. R..P. 10190).2Pa. R.C.P. 1019. Additionally, plaintiffs, who sufficiently stated the substance of the writing claim that the documents are in defendant's possession. SeePa. R.C.P. 1019(i). The Objection to Count I of the Complaint is Overruled. FN2. Furthermore, this Court has held that statements on the Internet are considered "writings." See Tesauro v. Quijzley. 2001 WL 1807782, *34 (Pa.Com.Pl.)(Herron, J.). (2) Count IV-BREACH OF IMPLIED WARRANTY OF FITNESS. W Defendant's Objection to the claim of an implied warranty of fitness for a particular purpose is persuasive. Our Supreme Court has held that an implied warranty of fitness for a particular purpose is breached when a seller: (1) on whose skill and judgment a buyer relies, and (2) who has reason to know, at the time of contracting, (3) of a particular purpose for which the goods are required, (4) fails to provide goods that perform to the specific use contemplated by the buyer. Gall v. Alleghm County Health Department. 521 Pa. 68, 555 A.2d 786 (1989). Specifically, "[a] `particular purpose' differs from an ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to his business."UCC § 2-315 (1984). 7 of 12 5/15/2009 1:13 PM http: //web2.westlaw. com/print/printstream. aspx?rs=WLW9.04&desti ... The Complaint is lacking in allegations of two elements of a breach of implied warranty of fitness: (a) a particular purpose, and (b) the seller's knowledge of that particular purpose contemplated by buyer. Gall. In fact, the only reference in the Complaint to any use of the HVACs at issue is "in heating," which is the ordinary use of an HVAC. Complaint, 156. In their response memorandum to the Objections, plaintiffs argue that the HVACs' particular purpose is "to save the customer money" and that the HVACs were meant to be "efficient and reliable." Memorandum of Law in Support of Plaintiffs' Response to Defendant's Preliminary Objections, p. 9. Efficiency, reliability, economy, are all merely qualifying characteristics of the HVAC, as it is put to its ordinary purpose, rather than particular purposes. hi Solarz v. Daimler Chrysler Corp., this court ruled that safety is not a particular purpose in the use of a minivan. Solarz, No.2033-112087, (Pa.Comm.Pl. March 13, 2002) (Herron, J.). Rather, it describes how the minivan performs its general purpose of offering a means of transportation. Id Similarly, efficiency is not an alternative, specific use of the HVACs representing a "particular purpose." In fact, as plaintiffs allege, defendant advertises widely the efficiency of its HVACs in their ordinary use. Complaint, ¶¶ 17-18. It would be groundless speculation rather than reasonable inference for this court to ascribe a "particular purpose" to the HVACs in this Complaint. Accordingly, the Objection to Count IV is Sustained. (3) Count VI-VIOLATIONS OF UTP/CPL. *5 Plaintiffs claim violations of numerous subsections of the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTP/CPL"). Complaint, ¶ 71; 73 P.S. § 201-1 et sea. Defendant generally objects that the economic loss doctrine bars all of plaintiffs' UTP/CPL claims. Objections, p. 5. Additionally, defendant objects that to the extent that the UTP/CPL claims are based on fraud, plaintiffs are required to plead all the elements of fraud, which plaintiffs fail to do. Objections, p. 9. Alternatively, say defendant, to the extent the UTP/CPL claims are based on deceptive practices, plaintiffs' claims are insufficiently pled because plaintiffs did not specify any misrepresentation or act of deception, nor plead reliance or causation relative to the specific act. Objections, pp. 9-10. Defendant further argues that facts specific to support claims under each subsection should have been pled but were not. Objections, p. 10-11. Finally, defendant objects to the misjoinder of equity and law claims in Count VI and the request for a jury trial. For the following reasons, the court Overrules the demurrer Objection to Count VI but Sustains the Objection to jury demand. A-The Economic Loss Doctrine and the UTP/CPL Defendant relies heavily on a recent Third Circuit case, Werwinski v. Ford Motor Co., in which the court ruled that the economic loss doctrine bars UTP/CPL claims, predicting that the Supreme Court of Pennsylvania would so rule on the issue. Werwinski v. Ford Motor Co.. 286 F.3d 661, 679-680 (3d Cir 2002)(where consumers sued the Ford Company for alleged defects in their vehicles which caused purely economic losses further alleging that the company was aware of the defects but declined to do any repair and concealed the information). Not only is that decision favorable to defendant's position, it is a rare case for pitting the economic loss doctrine against statutory claims, which, according to the Werwinski court, mirror common law tort claims.Id. Unfortunately, there is a dearth of Pennsylvania appellate decisions addressing the issue of intentional torts, let alone UTP/CPL claims, under the economic loss doctrine. This court has, however, announced a number of decisions which, cumulatively, lead to a holding contrary to that of the Third Circuit on the role of the economic loss doctrine with respect to UTP/CPL claims.al3Recently, this court ruled that the economic loss doctrine does not bar UTP/CPL claims. See Zwiercan v. General Motors Corn 2002 WL 31053838, *7 (Pa Com Pal (Cohen, J.). FN3. Although decisions of federal courts construing Pennsylvania law have persuasive authority, Pennsylvania 8 of 12 5/15/2009 1:13 PM J -- 1 http: //web2.westlaw.com/print/printstream. aspx?rs=WLW9.04&desti ... state courts are not bound by those decisions. Hutchinson v. Luddy. 763 A.2d 826, 837 n. 8 (Pa.Su er.2000). At issue are the UTP/CPL claims under subsection & 201-2(4).73 P S. 4 201-2(4). That section defines practices which constitute "unfair methods of competition and unfair or deceptive acts or practices."Id. Such acts are unlawful. 73 P.S. 4 201-3. The UTP/CPL'S "underlying foundation is fraud prevention." Weinberg v. Sun Co.. 565 Pa. 61.2. 618. 777 A.2d 442. 446 (2001) (citation omitted)."The general purpose of the UTP/CPL is to protect the public from fraud and unfair or deceptive business practices." Burke v. Ying, 446 Pa.Super. 16, 666 A.2d 288, 291 (Pa.Super.1995). *6 Plaintiffs' UTP/CPL claims allege not negligence but intent to deceive. Indeed, plaintiffs claim that defendant engaged in unconscionable commercial practices, deception, fraud, and false promises, knowingly misrepresenting material facts as to the character of the HVACs and/or hot surface igniters. Complaint, 1170-73. This court has consistently ruled that the economic loss doctrine does not bar intentional torts. SeeTeledyne Tech. Inc. v. Freedom Forge Corp., 2002 WL 748898 (Pa.Com.Pl.) (Sheppard, J.); Amico v. Radius Communications. 2001 WL 1.807924 (Pa.Com.Pl.) (Herron, J.); First Republic Bank v. Brand. 50 Pa. D. & C. 4th 329 (2000) (Herron, J.). The Werwinski court found, "the same policy justifications for applying the doctrine to appellants' common law intentional fraud claims support the doctrine's application to appellants' UTP/CPL claims."Werwinski, at 681.This court does not believe that intentional misrepresentations and outright dishonesty, if they can indeed be proven, are properly redressed in a breach of contract or warranty action. ButseeWerwinski, at 678-80. 3 This court suggests further that UTP/CPL claims have justification independent of our exception to the economic loss . doctrine for common law intentional torts. It seems fair to suggest that at the time the Pennsylvania legislature enacted the statute "to be liberally construed to prevent unfair or deceptive purposes," it was fully cognizant of the existence of common law contract remedies. Commonwealth v. Monumental Properties Inc.. 459 Pa. 450, 458-60, 329 A.2d 812, 816-17 1974. It defeats the statute's purposes, particularly its provisions for private consumer actions, to apply the economic loss doctrine to bar the claims it created. As stated by this court, "to apply the economic loss doctrine to all claims under the UTP/CPL has the potential to eviscerate the UTP/CPL itself." Zwiercan v. General Motors Corp., 2002 WL 31053838, *7 (Pa.Com.Pl.)(Cohen, J.). Accordingly, this court finds that the economic loss doctrine does not bar plaintiffs' UTP/CPL claims in the nature of fraud and intentional tort. B The Insufficiency of Plaintiffs' Pleadings M Defendant argues that, to the extent that plaintiffs' UT?/CPL claims are based on fraud, the pleadings are legally insufficient because the elements of fraud have not been pled, and thus Count VI should be dismissed. Defendant particularly objects that plaintiffs have failed to allege any misrepresentations and have also failed to plead reliance and causation.FN4 Objections, p. 9-10; Reply in Support of Objections, p. 8-9. This Court disagrees. FN4. While defendant accurately listed five elements of common law fraud, defendant has not pled insufficiency as to allegations of the scienter element, particularly whether and how defendant knew of the defect at the time it made the misrepresentations, and have not briefed it. Consequently, the court is obliged to conclude that defendant conceded it was adequately pled and waived this objection. See Foster v. Peat Marwick. 138 Pa.CmwU. 147, 155, 587 A.2d 382, 386 (1991). See also Section (4) below, which addresses Counts X and XII alleging fraud and fraudulent misrepresentations. 9 of 12 5/15/2009 1:13 PM http://web2.westlaw.com/print/printstream.aspx?rs=WLW9.04&desti ... As noted, the plaintiffs have pled misrepresentations of material facts on York's website and in the user manuals, namely the efficiency of a York product and assurance that a York product would deliver years of quality service, when, in fact, plaintiffs had to incur repair costs repeatedly. The misrepresentations alleged are of specific wrongful acts and, thus, constitute the necessary predicate to a UTP/CPL claim Plaintiffs also allege that defendant concealed the material fact, of which it had knowledge, that the units it continued to manufacture and sell were defective. Misrepresentations of material facts are deceptive acts under the UT?/CPL. 73 P.S. §§ 201-2(4), 201-3. Complaint, ¶¶ 25-26, 28, 102. *7 Defendant properly cites Weiler v. Smithkline Beecham Corporation to support its argument that both reliance and causation must also be pled. Weiler v. Smithkline Beecham Corporation 53 Pa D & C 4th 449 (Pa.Com.P1.2001) (Herron, J.). In Weiler, this court found that allegations that plaintiffs purchased defendant's products based on the defendant's representations were sufficient allegations of reliance, and allegations that plaintiffs suffered damages as a direct and proximate result of defendant's actions were sufficient allegations of causation. Id., at *3-4.Plaintiffs have made similar assertions here. See Complaint, IT 32-33, 38. Defendant cites to the Superior Court of Pennsylvania case, Lennon v. Wyeth-Ayerst Lab., Inc., for the proposition that allegations that plaintiffs would not have bought defendant's product had the true facts been known, are insufficient. Defendant's Reply in Support of Objections, p. 10; 2001 WL 755944, *3. Defendant, however, does not acknowledge the complete reasoning of the Lennon court. Id. In Lennon, plaintiffs, who purchased an allegedly ineffective vaccine which caused dangerous side effects, had not clearly stated that part of their lump-sum payments for medical insurance went towards the vaccine and/or that their payments would have been less had they not gotten the vaccine. Id. Thus, causation was not adequately pled. Furthermore, in Lennon, plaintiffs failed to allege ascertainable damages, and this failure was, ultimately, the basis for the court's decision. Id ("Since Appellants fall [sic] to assert ascertainable damages, this issue is meritless.") Id. Thus, this court disagrees with defendant's contention that misrepresentation, reliance, causation and damages were not adequately pled. Defendant also objects that, to the extent the allegations are based on deceptive practices, plaintiffs did not specify any act of unfairness or deception, nor did they allege reliance. Objections, pp. 9-10. Because the Complaint is sufficient with respect to allegations of fraud, it is also adequate with respect to the assertions of deceptive and unfair practices. In sum, this court finds the allegations for a UTP/CPL claim sufficient. C The Inadequacy of Support for Each Sub-Section of the UTP/CPL Defendant objects that plaintiffs did not plead sufficient facts to support violations of specific subsections of the UTP/CPL. Objections, p. 18. Defendants claim that, for the subsections 201-2(4)(ii) and (iii), plaintiffs failed to plead essential facts to support "a likelihood of confusion or misunderstanding."Id; 73 P.S. & 201-2(4)(ii) & (iii). The court disagrees. As already stated, the plaintiffs sufficiently pled misrepresentations of material facts. It is inappropriate for the court at this stage to hold that a misrepresentation is not confusing. That is an issue of fact. Furthermore, while, as defendant argues, Weinberg v. Sun does state that the UTP/CPL does not "do away with the traditional elements of reliance and causation," it nonetheless merely requires allegations of reliance. Weinberg v. Sun. 565 Pa. 612, 618, 777 A .2d 442, 446 (2001). This court finds that plaintiffs have sufficiently pled reliance and causation in general, and such allegations are relevant to those specific subsections. 10 of 12 5/15/2009 1:13 PM . % http: //web2.westlaw.com/print/printstream.aspx?rs=WLW9.04&desti ... *8 Next, defendant objects to: (a) claims of violations of subsections (v) and (ix), contending that plaintiffs failed to plead that defendant represented characteristics which its products did not have, and (b) claims of violations of subsections (vii) and (xxi), again on the basis that plaintiffs failed to specifically identify misrepresentations. For the reasons discussed, the violations of these subsections were adequately pled. D The Misjoinder of Equity and Law and Motion to Strike Jury Demand M Plaintiffs seek equitable relief as well as civil damages in their TT/CPL claims. Plaintiffs also request a jury trial. This court has held that the UTP/CPL does not include a right to a jury trial. Commonwealth v. BASF Corp., 2001 WL 1807788. *10 (Pa.Com.Pl.) (Herron, J). Furthermore, a jury cannot hear nor award requests for injunctive relief. The court, thus, Sustains the motion to strike the jury demand. (4) Counts X and X11 j6], Plaintiffs assert a claim for fraudulent misrepresentation in Count X, and a claim for fraud in Count XII. Plaintiffs set forth the same allegations for both Counts. See Complaint, §§ 99-108, 114-119. Defendant objects to both Counts advancing the same arguments. Since both claims embody the same elements, the court will consider them together. The elements of a cause of action for fraud or misrepresentation are: (1) a misrepresentation; (2) a fraudulent utterance thereof, (3) an intention by the maker that the recipient will act; (4) justifiable reliance by the recipient upon the misrepresentation; and (5) damages to the recipient as the proximate result. The deliberate nondisclosure of a material fact is the same as culpable misrepresentation. McClellan v. Health Maint. t. of Pennsylvania. 413 Pa.Super. 128, 142-143 604 A .2d 1053, 1060 (1992) (citations omitted). As discussed, this court finds that plaintiffs have adequately pled misrepresentations, reliance, and damages. Defendant objects arguing that plaintiffs have not adequately pled that defendant intended plaintiffs to rely upon its alleged misrepresentations. Objections, p. 25. The court disagrees, in that it is reasonable to infer that the Company intended for customers to rely on the statements it made on its website and in its user manuals. The law, however, requires that the element of intent be specifically pleaded. Intent is the state of mind of the defendant as to the falsity of the misrepresentation at the time it uttered such misrepresentation. The second element requiring a "fraudulent utterance" has been found to refer to the intent or scienter required for an utterance to be considered fraudulent. "This intent has been characterized as knowing or reckless, and applies when the maker of the utterance knows or believes that the matter is not as he or she represents it to be, does not have the confidence in the accuracy of the representation that is stated or implied, or knows that there is not the basis for the representation that is stated or implied. 11 of 12 5/15/2009 1:13 PM I , r http://web2.westlaw.com/print/printstream.aspx?rs=WLW9.04&desti ... *9 Bridle v. West Allegheny Hospital 406 Pa Super 572, 574-75 594 A .2d 766, 768 (1991).Seealso Mele Construction Co., Inc. v. Crown American Corp., 421 Pa.Super. 569, 580, 618 A.2d 956, 960 (1993) (stating that the second element of fraud, intent, is met when, at the time it was made, the misrepresentation was uttered with the knowledge or belief that it was false). Defendant fails to object to the lack of allegations of knowledge about the falsity of the misrepresentations or of knowledge of a defect that defendants intentionally concealed. The court, thus, must consider that fraud was adequately pled and Overrules the Objections to Counts X and XH. CONCLUSION For the reasons discussed, the court sustains the Objection to the breach of implied warranty Count and strikes the demand for jury trial. The remaining Objections are overruled. A contemporaneous Order based on this Opinion will be issued. Pa.Com.P1.,2002. Oppenheimer v. York Intern. Not Reported in A.2d, 2002 WL 31409949 (Pa.Com.Pl.) END OF DOCUMENT © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 12 of 12 5/15/2009 1:13 PM CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day serving the foregoing document upon the persons and in manner indicated below. Service by First Class Mail, addressed as follows: Richard H. Wix, Esquire Wix, Wenger & Weidner 4705 Duke Street Harrisburg, PA 17109 Date: z?r eJ HARTMAN UNDERHILL & BRUBAKER LLP B Kevin M. French Attorney I.D. #47589 Attorneys for Defendant {00552132.1} FILED-t' frKE OF TW PROTHONOTARY 2*9 JUN 26 FM 1: 14 P NSYI.VAN A PETER S. JOYCE, MELINDA S. IN THE COURT OF COMMON PLEAS OF JOYCE & HOPE JOYCE, A MINOR, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. No. 05-3693 CHARTER HOMES BUILDING COMPANY, Defendant CIVIL ACTION - LAW ORDER AND NOW, this 291h day of June, 2009, upon consideration of the letter request from Kevin M. French, counsel for Charter Home Building Company, and with the concurrence of counsel for Plaintiffs, Richard H. Wix, it is hereby ORDERED and DECREED that the case is removed from the Civil Trial List beginning June 29, 2009, and the Court Administrator is directed to place this case on the Trial List for the November 16 Civil Trial Term. THE COURT: J. V f/\? ?lC r I I C J /?? {00553273.1 } 7/'/UF 2009 JUL - I Ali I I: I I ''', N t . N C?h?t Y HARTMAN UNDERHILL & BRUBAKER LLP ATTORNEYS AT LAW ANDREW F. LUCARELLI WILLIAM C. McCARTY ALEXANDER HENDERSON, III ROBERT M. FRANKHOUSER, JR. THOMAS W. BERGEN MICHAEL W. BABIC MARK STANLEY MARK E. LOVETT KEVIN M. FRENCH JOSHUA D. COHEN KIM R. SMITH STACEY L. MORGAN RORY O. CON NAUGHTON JEFFREY C. GOSS JOHN A. MATEYAK THEODORE L. BRUBAKER ROBERT W. PONTZ BRETT D. JACKSON JEFFREY P. OUELLET WILLIAM J. ZEE, III DANA C. PANAGOPOULOS MICHELLE L. GROLEAU 221 EAST CHESTNUT STREET LANCASTER, PENNSYLVANIA 17602-2782 (717) 299-7254 FAX (717) 299-3160 Web Site: www.hublaw.com Direct E-mail: kevinf(&hublaw.coin June 29, 2009 COUNSEL CHRISTOPHER S. UNDERHILL MARK L. JAMES JOHN I. HARTMAN, JR. (1919-2000) THEODORE L. BRUBAKER (1911-2002) GEORGE T. BRUBAKER (1942-2006) HARRY ST. C. GARMAN (1945-2006) The Honorable Edward E. Guido Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 ATTENTION: Ms. Sandy Davis (via email atsdavis@ccpa.net) Re: Peter S. Joyce, Melinda S. Joyce & Hope Joyce, a Minor v. Charter Homes Building Company Docket No. 05-3693 Dear Judge Guido: I am counsel for Defendant, Charter Homes Building Company. My older brother, Mark French, is in the last stages of ALS, and it appears that his death is imminent. I am with him and his family at this time. I respectfully request that, under the circumstances, the Court continue the trial currently scheduled to begin on July 1, 2009, in the above- captioned matter. Should the Court wish to discuss this with me directly, I would be happy to speak with you. My cell phone number is 471-7699. Thank you for your consideration of my request at this time. Respectfully, 9?? Kevin M. F nch KMF:cla 00553275.DOC Enclosure cc (w/enc.): Richard H. Wix, Esquire (via fax no. (717) 652-6290) ti PETER S. JOYCE, MELINDA S. JOYCE and HOPE JOYCE, A MINOR, Plaintiffs v CHARTER HOMES BUILDING COMPANY,: Defendant NO. 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 05-3693 CIVIL TERM IN RE: MOTION FOR CONTINUANCE ORDER OF COURT AND NOW, this 20th day of October, 2009, upon consideration of the call of the civil trial list, and counsel for Defendant in the person of Kevin M. French, Esquire, having requested a continuance of the trial based upon the recent introduction of a new item of damages on the part of the Plaintiffs, and the Court having received the positions of counsel in chambers on that issue, and finding itself in agreement with Defendant's counsel that he has not had sufficient time to prepare for this particular item of damages, and counsel for the Plaintiffs having indicated that he wishes to consult with his clients to determine whether they want to proceed with the case without pursuing that particular item of damages, the case will remain on the trial list, counsel for the Plaintiffs is directed to advise Defendant's counsel within 5 days of today's date as to his clients' wishes, and the Court will grant a motion for a continuance of the trial upon its filing by Defendant's counsel should the Plaintiffs wish to pursue the item of damages in question. By the Court, J. ` Wesrey -O-?qr, Jr.-,' J. / Richard H. Wix, Esquire 4705 Duke Street Harrisburg, PA 17109 For Plaintiffs Xevin M. French, Esquire 221 East Chestnut Street Lancaster, PA 17602 For Defendant Court Administrator mae l.;p ? t ES rn ? t Ls-r OF THE PPOTHMTARY 2015 OCT 26 AM ro= 16 O-WRI' 010 COLWIY PDNSOAW AP PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ? for JURY trial at the next term of civil court. ? for trial without a jury. ----------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) Peter S. Joyce, Melinda S. Joyce & Hope Joyce, a minor (check one) X? Civil Action - Law ? Appeal from arbitration ? (other) (Plaintiff) vs. Charter Homes Building Company The trial list will be called on 115/2010 and Trials commence on 2/1/2010 (Defendant) Pretrials will be held on 1/13/2010 vs. (Briefs are due S days before pretrials No. 05-3693 Civil Term Indicate the attorney who will try case for the party who files this praecipe: Richard H. Wix, Esq., 4705 Duke Street, Harrisburg, PA 17109 Indicate trial counsel for other parties if known: Kevin M. French, Esq.. 221 East Chestnut Street. 1"anraster, PA 17602 This case is ready for trial. Date: October 26, 2009 Signed: 4. "6 Print Name: Richard H. Wix, Esq. Plaintiffs Attorney for: 4 CERTIFICATE OF SERVICE AND NOW, this 26th day of October, 2009, I, Gaye Crist, an employee of the firm of Wix, Wenger & Weidner, attorneys for Plaintiffs hereby certify that I served the within Praecipe for Listing Case for Trial this date by depositing a copy of same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed as follows: Kevin M. French, Esq. Hartman, Underhill & Brubaker 221 East Chestnut Street Lancaster, PA 17602 WIX, WENGER & WEIDNER ,4ct'431 Lz'?-j Gaye Cr t CNI TL CF TrE TWTKNbTAF" OCT 2? PM 1: d t CUMPENtvSYLVANIA $a5. oc> P p ?- co 3q(06 0# aza(OS5 PETER S. JOYCE, IN THE COURT OF COMMON PLEAS OF MELINDA S. JOYCE, & CUMBERLAND COUNTY, PENNSYLVANIA HOPE JOYCE, A MINOR, : Plaintiffs V. CIVIIL ACTION - LAW CHARTER HOMES BUILDING COMANY, Defendant NO. 05-3693 CIVIL TERM IN RE: CONTINUANCE ORDER OF COURT AND NOW, this 26`h day of October, 2009, upon consideration of Defendant's oral motion for a continuance of trial referred to in the order following the call of the Civil Trial List on October 20, 2009, and of the attached letter from Plaintiffs' counsel, Richard H. Wix, Esq., the motion for a continuance is granted, this case is stricken from the present trial list, and counsel are requested to relist the case for trial during the term commencing on February 1, 2010. THE DELAY in trial occasioned by this continuance shall not be chargeable to Defendants for purposes of delay damages. chard H. Wix, Esq. 4705 Duke Street Harrisburg, PA 17109 Attorneys for Plaintiffs BY THE COURT, evin M. French, Esq. 221 East Chestnut Street Lancaster, PA 17602-2782 Attorney for Defendant Court Administrator -- I)AndG?? Id/a7lef A-/ :rc (2p t E? rn-d-4 LECL 10/23/2009 09:21 RICHARD H. WIX STEVEN C. WILDS THERESA L. SHADE WIX' DAVID R. GETZ STEPHEN J.DZURANIN JEFFREY C. CLARK PETER G. HOWLAND 'Also MOMW N1164161 WM7 Me VIA FACSIMILE The Honorable J. Wesley Oler, Jr. Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 [dear Judge Oler: October 23, 2009 PAGE 02/02 THOMAS L, WENGER USAN A, WFIDNER ROBERT C. SPITZER OfCouneel (717) 652-8455 FAX (717) 652.6290 www.wwwpalsw.com Re: Joyce v. Charter Homes No. 05-3693 Civil The Plaintiffs desire to present evidence relating to the cast of fixing the problem at their home, and therefore in accordance with your Order at the Pre-Trial Conference this case should be continued to the February 1, 2010 Term of Court, Very truly yours, Richard H. Wix RHW/gc cc: Kevin French, Esq. (via fax) 7176526290 WIXWENGERWEIDNER WIX, WENGER & WEIDNER A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 4705 DUKE STREET HARRISBURG, PENNSYLVANIA 17109-0341 Downtown Harrisburg Location: P.O. Box 845, 508,North Second Street, Harrisburg, PA 17108-0845 (717) 234-4182: Fax (717) 234-4224 FLED-OF-ra OF V- p0,0r?,„?NOTAAY Zoos OCT 21 PM 3: 13 'JIM PENtZ&VANIA J PETER S. JOYCE, MELINDA S. JOYCE, and HOPE JOYCE a Minor, V. CHARTER HOMES BUILDING COMPANY, Defendant #6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA n NO. 3693-2005 CIVIL TERM:-i. z w? fCIVIL ACTION - LAW = ra IN RE: PRETRIAL CONFERENCE A pretrial conference was held on Wednesday, ?t Y f? j C January 13, 2010, before the Honorable Edward E. Guido, Judge. Present for the Plaintiffs was Richard H. Wix, Esquire, and present for the Defendant was Kevin M. French, Esquire. This is a property claim arising from the sale of a home that sustained water damage in the basement. Liability is hotly contested. The parties estimate that the case will take three days to try. There has been an Unfair Trade Practices claim raised by the Plaintiffs. Pursuant to a prior order by Judge Oler, that claim will be decided by the trial judge with the other claims being submitted to the jury. There are several legal issues that have been raised by the Defendant in its pretrial memorandum. Both parties are directed to file any motions in limine, along with supporting authority, by January 22, 2010. Any responses, with supporting authority, shall be filed by January 28, 2010. The filings should be with the Court Administrator, who shall direct them to the trial judge for disposition. The parties have participated in extensive settlement negotiations in the past. Defendant is reviving those negotiations today. It is the Court's understanding that he will be attempting to get authority to make an offer that will equal a previous demand made by the Plaintiffs, although Plaintiffs have since withdrawn the previous demand. We are hopeful that settlement can still be reached. By the Court, .: s Edward E. Guido, J. Richard H. Wix, Esquire Attorney for Plaintiffs Kevin M. French, Esquire Attorney for Defendant Prothq/otary Court Administrator srs 10 FEAR. ONCE OF THE PPOTKI ?NOTARY 2010 FEB -4 AM 10: 24 .." }., ",GNTY F E +" a i v SYL V NNA PETER S. JOYCE, MELINDA S. JOYCE and HOPE JOYCE, a minor, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3693 CIVIL ACTION - LAW CHARTER HOMES BUILDING COMPANY, Defendant NOW this ORDER day of 'Fobe? , 2010, upon consideration of the Petition to Discontinue Pursuant to Pa.R.C.P. 2039, it is hereby ORDERED and DECREED that Plaintiffs are given allowance to discontinue the above- captioned matter as to Hope Joyce, a minor. C J. (20P E.S enat (s:cC `-rte PETER S. JOYCE, MELINDA S. JOYCE and HOPE JOYCE, a minor, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3693 CIVIL ACTION - LAW CHARTER HOMES BUILDING COMPANY, Defendant PETITION TO DISCONTINUE PURSUANT TO Pa.R.C.P. 2039 NOW come the Plaintiffs, by their attorneys, Wix, Wenger & Weidner and set forth as follows: 1. On or about May 15, 2001, Plaintiffs Peter Joyce and Melinda Joyce purchased a home from the Defendant. 2. In September 2004 water entered the basement of the Plaintiffs' home causing extensive damage to Plaintiffs' personal property. 3. While repairs to the damages to the basement were being made, it was discovered that there was mold infestation behind the drywall. 4. At or about the same time, Plaintiffs' minor daughter, Hope Joyce, was suffering from allergies. 5. Suit was instituted in 2005 at which time your Petitioners believed that there might exist a causal connection between their minor daughter's allergies and the condition of the basement. 6. After reviewing the minor Plaintiffs medical records and consulting with her physicians, your Petitioners do not believe that there is any causal connection between the actions of the Defendant and the minor Plaintiffs allergies. WHEREFORE, the Petitioners request that your Honorable Court enter an Order that the claim on behalf of Hope Joyce can be discontinued with prejudice. Peter Joyce c?- Melinda Joyce Dated: I I a V I! o Respectfully submitted, WIX, WENGER & WEIDNER By_( L Richard H. Wix, Esq., ID #07274 Attorneys for Plaintiffs 4705 Duke Street Harrisburg, PA 17109-3041 (717) 652-8455 FILED-i i-ME 0 THE P??'1140) r!a7TARY 1010 FEB 12 PM 2: 49 PL 1`11i nf'y„? PETER S. JOYCE, MELINDA S. JOYCE, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3693 V. CHARTER HOMES BUILDING COMPANY, Defendant TO THE PROTHONOTARY: CIVIL ACTION - LAW 00 A Ct'`I0C Please mark the above-captioned matter as settled and discontinued with prejudice. Respectfully submitted, WIX, WENGER & WEIDNER C-? Y Richard H. Wix, Esq., ID #07274 Attorneys for Plaintiffs 4705 Duke Street Harrisburg, PA 17109-3041 (717) 652-8455 Dated: 2/5/2010