HomeMy WebLinkAbout05-4897W. Scott Henning, Esquire
I.D.#32298
HANDLER, HENNING & ROSENBERG, LLP
1300 Linglestown Road
Harrisburg, PA 17110
Telephone: (717) 238-2000 Attorney for Plaintiff
Fax : (717) 233-3029
E-mail: Henning@HHRLaw.com
W. SCOTT HENNING and
BERNADETTE M. HENNING,
Plaintiffs
v.
MARYLAND POOLS, INC.,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. OS - /?10? /
CIVIL ACTION - LAW
NOTICE
Cto t'
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.
Lawyer Referral Service
4th Floor, Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan
mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues
de la notificaci6n 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, las demandas
presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe
anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la
demanda o cualquierotra reclamaci6n 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.
USTED 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 USTED 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.
Lawyer Referral Service
4th Floor, Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
HANDLER, WNNING ?k Rq,6ENBEF(W LLP
By. C/
W. Scott
W. Scott Henning, Esquire
I.D.#32298
HANDLER, HENNING & ROSENBERG, LLP
1300 Linglestown Road
Harrisburg, PA 17110
Telephone: (717) 238-2000 Attorney for Plaintiffs
Fax : (717) 233-3029
E-mail: Henning@HHRLaw.com
W. SCOTT HENNING, and
BERNADETTE M. HENNING,
Plaintiffs
V.
MARYLAND POOLS, INC.,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
. NO. d g - '07
: CIVIL ACTION -LAW
COMPLAINT
1. Plaintiff, W. Scott Henning is an adult individual residing at 400 Riverbend
Drive, Enola, Cumberland County, Pennsylvania.
2. Plaintiff, Bernadette M. Henning is an adult individual residing at 400
Riverbend Drive, Enola, Cumberland County, Pennsylvania
3. Defendant, Maryland Pools, Inc. is a Maryland Corporation doing business
in the Commonwealth of Pennsylvania, despite not being properly qualified as a foreign
corporation to conduct business within the Commonwealth of Pennsylvania. Defendant
maintains an office and place of business located at 9515 Gerwig Lane, Suite 119,
Columbia, MD.
4. On July 2, 2002, Plaintiffs and Defendant executed a written agreement for
the construction of a swimming pool and spa at Plaintiffs' residence.
5. The Plaintiffs have fulfilled all the provisions of the Agreement required on
their part, including payment of the full contract price.
6. The Defendant has not fulfilled the provisions of the Agreement on their part
to be performed and have breached the Agreement in various respects as hereinafter set
forth.
COUNT I - NEGLIGENCE
7. Plaintiffs incorporate Paragraphs 1 through 6 as though fully set forth herein.
8. Defendant has wholly neglected to do and perform certain things which were
expressly or by necessary implication required to be done and performed by the
Agreement, as follows:
A. Failing to install a pool with proper and adequate water sealing along
and about the stone facing on the waterfall between the spa and
swimming pool;
B. Failing to install a swimming pool/spa that is free from water leakage;
C. Failing to design and install a swimming pool that has adequate in-
floor filtering capabilities;
2
D. Failing to design and install a spa/pool combination such that the spa
can be operated during the winter months, that is, during those
months that swimming pool is closed-down for the winter;
E. Failing to design and install a spa/pool that has a properly functioning
"mineral spirits" system.
9. As the result of the aforementioned negligently created defects in the design
and installation of the swimming pool/spa, Plaintiffs have been compelled to incur the time
and expense of purchasing truck loads of pool water on a weekly basis throughout the Fall
of 2002, Summer of 2003, Summer of 2004 and Spring/Early Summer of 2005. To date
Plaintiffs have received at least twenty-three (23) trucks full of water (2,500 gallons each)
at a cost of $100.00 each, thereby incurring costs of $2,300.00.
10. As the result of the aforementioned negligently created defects in the design
and installation of the swimming pool/spa, Plaintiffs have been compelled to expend much
time and expense associated with making repeated telephone calls to Defendant and
engaging in meetings with Defendant's personnel or other pool maintenance personnel
either engaged by Defendant to work on endeavoring to correct the pool or separately
engaged by Plaintiffs to diagnose or correct the numerous defects in the swimming
pool/spa.
11. In June 2005, after Defendant failed and refused to respond to Plaintiffs
numerous requests to address the ongoing water leakage issue, Plaintiffs engaged the
services of a pool expert to inspect the pool. The pool expert readily located the source
of the leak.
12. Defendants had heretofore engaged in various repair attempts but failed to
locate and rectify the defect.
3
13. Due to the defects in the pool and spa, the pool and spa have been unusable
for extended time periods.
14. As the result of the aforementioned negligently created defects in the design
and installation of the swimming pool/spa, the Plaintiffs have incurred additional expenses
for chemicals due to the fact that on several occasions it was necessary to completely
drain the pool and re-fill the pool as the result of the defects referenced in Paragraph 8.
15. As the result of the aforementioned negligently created defects in the design
and installation of the swimming pool/spa, the leakage of water has caused a ground fault
defect, significant erosion of ground/soil from underneath the swimming pool/spa, thereby
creating cracks in the custom-made, stamped concrete pool deck and further creating a
substantial risk that the southern portion of the pool deck area will collapse. It was
necessary for Plaintiffs to engage a company known as Remcon, Inc. to drill holes in the
concrete (Bowmanite) deck to prevent the deck from sagging and causing further cracks
in the deck. The costs of this repair was $1,500.00. Additionally, Plaintiffs incurred the
cost of having a landscaper backfill dirt in the eroded area under the deck and then re-build
the retaining wall adjacent to the eroded area. This cost of repair was $2,102.50.
16. Defendant has failed and refused, and still refuses, to cure the aforesaid
poor, improper, and unworkmanlike work in designing, constructing and installing the pool,
despite Plaintiffs' repeated demand.
17. The reasonable cost of remedying the aforesaid defects and unworkmanlike
work is not known with any exactitude at this time, but Plaintiff anticipates it may be in
excess of $35,000.00.
4
WHEREFORE, Plaintiffs demand judgment against Defendant in an amount in
excess of $35,000.00, the compulsory Arbitration limit for Cumberland County,
Pennsylvania.
COUNT II - BREACH OF CONTRACT
18. Plaintiffs incorporate Paragraphs 1 through 17 as though fully set forth herein.
19. The Defendant has breached the agreement between the parties, inter alia,
by failing to install a leak-free and properly functioning pool, in accordance with the express
and implied warranties set forth in the Agreement.'
20. The pool/spa installed by Defendant is defective in the following respects:
a. The pool/spa is leaking water;
b. The in-floor cleaning system is inadequately and not properly
functioning, including the fact that there are various "dead spots"
where the system does not reach, and consequently dirt and debris
accumulate in those areas;
C. The mineral spring chemical dispensing system does not work
properly or adequately;
d. The pool/spa as designed is in such a configuration that the spa
cannot be utilized during the winter months, that is, those months
during which the pool is closed. This is wholly contrary to the
representations of the Defendant's employees, representatives and/or
agents and the intended use of the pool/spa.
21. As the result of the aforementioned negligently created defects in the design
and installation of the swimming pool/spa, Plaintiffs have been compelled to incur the time
5
and expense of purchasing truck loads of pool water on a weekly basis throughout the Fall
of 2002, Summer of 2003, Summer of 2004 and Summer of 2005.
22. As the result of the aforementioned negligently created defects in the design
and installation of the swimming pool/spa, Plaintiffs have been compelled to expend much
time and expense associated with making repeated telephone calls to Defendant and
engaging in meetings with Defendant's personnel or other pool maintenance personnel
either engaged by Defendant to work on endeavoring to correct the pool or separately
engaged by Plaintiffs to diagnose or correct the numerous defects in the swimming
pool/spa.
23. In June 2005, after Defendant failed and refused to respond to Plaintiffs
numerous requests to address the water leakage issue, Plaintiffs engaged the services of
a pool expert to inspect the pool. The pool expert readily located the source of the leak
24. As the result of the aforementioned negligently created defects in the design
and installation of the swimming pool/spa, the Plaintiffs have incurred additional expenses
for chemicals due to the fact that on several occasions it was necessary to completely
drain the pool and re-fill the pool as the result of the defects referenced in Paragraph 8.
25. As the result of the aforementioned negligently created defects in the design
and installation of the swimming pool/spa, the leakage of water has caused a ground fault
defect, significant erosion of ground/soil from underneath the swimming pool/spa, thereby
creating cracks in the custom-made, stamped concrete pool deck and further creating a
substantial risk that the southern portion of the pool deck area will collapse.
26. Defendant has failed and refused, and still refuses, to cure the aforesaid
poor, improper, and unworkmanlike work in designing, constructing and installing the pool,
despite Plaintiffs' repeated demands.
6
27. The reasonable cost of remedying the aforesaid defects and unworkmanlike
work is not known with any exactitude at this time, but Plaintiff anticipates it may be in
excess of $35,000.00.
WHEREFORE, Plaintiffs demand judgment against Defendant in an amount in
excess of $35,000.00, the compulsory Arbitration limit for Cumberland County,
Pennsylvania.
Respectfully submitted,
HANDLER, HFNNINqA ROSENBERG, LLP
By
W. Scott
Attorneys for Plain
7
VERIFICATION
The undersigned hereby verifies that the statements in the foregoing document
are based upon information which has been furnished to counsel by me and
information which has been gathered by counsel in the preparation of this lawsuit.
The language of the document is of counsel and not my own. I have read the
document and to the extent that it is based upon information which I have given to
counsel, it is true and correct to the best of my knowledge, information and belief. To
the extent that the contents of the document are that of counsel, I have relied upon
my counsel in making this Verification. The undersigned also understands that the
statements made therein are made subject to the penalties of 18 Pa. C.S. Section
4904, relating to unsworn falsification to authoriti
W. Scott Hennin
Date: q-(I
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W. Scott Henning, Esquire
I.D.#32298
HANDLER, HENNING & ROSENBERG, LLP
1300 Linglestown Road
Harrisburg, PA 17110
Telephone: (717) 238-2000
Fax: (717) 233-3029
E-mail: Henning@HHRLaw.com
Attorney for Plaintiffs
W. SCOTT HENNING, and
BERNADETTE M. HENNING,
Plaintiffs
v.
MARYLAND POOLS, INC.,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 05-4897 Civil Term
CIVIL ACTION - LAW
AFFIDAVIT OF SERVICE
On the 26th day of September, 2005, 1 hereby certify that a true and correct copy
of Plaintiffs' Complaint containing Notice to Defend was served upon Defendant, Maryland
Pools, Inc., by certified mail, return receipt requested, at 9515 Gerwig Lane, Suite 119,
Columbia, MD 21046. The green certified return receipt card is attached hereto as Exhibit
"A"
I verify that the statements made in this Affidavit are true and correct. I understand
thatfalse statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating
to unsworn falsification to authorities.
Respectfully Submitted,
HANDLER, ENNI IG ROS G, LLP
Date: / By:
W. Scott Hennma. E uir
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Charles Gilman, Esquire
Identification No.: 86966
Donna M.B. King, Esquire
SILVERMAN THOMPSON & WHITE, LLC
201 North Charles Street, Suite 2600
Baltimore, Maryland 21201
(410) 385-2225
W. SCOTT HENNING, et al.,
Plaintiffs,
V.
MARYLAND POOLS, INC.,
Defendant.
* * * * *
* IN THE COURT OF COMMON PLEAS
* CUMBERLAND COUNTY,
* PENNSYLVANIA
*
* Case No.: 054897
*
MOTION TO STAY ACTION AND TO COMPEL ARBITRATION
Defendant, Maryland Pools, Inc. ("Maryland Pools"), by and through its undersigned
attorneys, moves to stay this action based on an arbitration agreement between the parties and
to compel arbitration, and states as follows:
1. The contract at issue in this action requires that the parties herein submit any
and all disputes to arbitration before the American Arbitration Association. The arbitration
provision states as follows:
Any controversy, action, claim, dispute, breach or question of interpretation
relation to or arising out of this contract shall be resolved by arbitrtation in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association and judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction.
The section of the contract between Plaintiffs W. Scott Henning and Bernadette Henning and
Defendant Maryland Pools containing this arbitration provision is attached hereto as Exhibit
A.
2. Title 42 of Pennsylvania Consolidated Statute Annotated Section 7303
provides for the enforceability of an agreement to arbitrate:
A written agreement to subject any existing controversy to arbitration or a
provision in a written agreement to submit to arbitration any controversy
thereafter arising between the parties is valid, enforceable and irrevocable, save
upon such grounds as exist at law or in equity relating to the validity,
enforceability or revocation of any contract.
The claims raised in the Complaint in this action are within the scope of this agreement.
Thus, this matter is not properly before this Court and must be submitted to arbitration.
3. Title 42 of Pennsylvania Consolidated Statute: Annotated Section 7304 permits
a party to move for an Order compelling arbitration. Section 7304(a) provides that a Court
can compel arbitration when there is an arbitration agreement and "a showing that an
opposing party refused to arbitrate." On October 6, 2005, counsel for Maryland Pools left a
message at the office of W. Scott Henning, Esquire, Handler, Henning & Rosenberg, LLP,
appearing in this action pro se and as attorney for Bernadette Henning, requesting consent to
enter into arbitration pursuant to the above-referenced agreement and Pennsylvania statute.
To date, counsel for Maryland Pools has not received a response from Mr. Henning.
4. In the event this action proceeds in this Court, Maryland Pools reserves the
right to raise any other issues by preliminary objection or as affirmative defenses to this
action.
WHEREFORE, Defendant Maryland Pools, Inc. respectfully requests that this action
be stayed and that the Court compel arbitration.
2
Charles Gilman
Identification No.: 86966
Donna M.B. King (pro hac vice motion to be submitted)
SILVERMAN THOA PSON & WHITE, LLC
201 North Charles Street, Suite 2600
Baltimore, Maryland 21201
(410) 385-2225
Attorneys for Defendant Maryland Pools, Inc.
CERTIFICATE OF SERVICE
I hereby certify that on this 10th day of October 2005,1 served the foregoing Motion
to Stay Action and To Compel Arbitration via First Class mail to W. Scott Henning, Esquire,
Handler, Henning & Rosenberg, LLP, 1300 Linglestown Road, Harrisburg, Pennsylvania
17110, appearing pro se and as attorney for Bernadette Henning.
Donna M.B. King
4
EXNiEi
>9-
MASTER POOLS
M :aryT'?Z!
9515 Gerwig Lane, Suite 119 11166 Main Street, Su
Columbia, Maryland 21046 Fairfax, Virginia 221
Baltimore Area: (410) 955-6600 Virginia Area: (703) 35
Washington Area: (301) 621-3319 Virginia Fax: (703) 351
Maryland Fax: (301) 621-3331
All Areas: 1-800-252-SWIM
t
COMMERCIAL GRADE SWIMMING POOL CONSTRUCTION 1
M.P.M. Construction Co., Inc. hereafter Maryland Pools (M.P.), hE
to contract with and construct for
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Pool Shape C y'
a swimming pool to be constructed in accordance with the terms and conditions of this agreemert and to be installed at Greatest Width: (Water): _
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SI J\ Greatest Length: (Water): _
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Total Square Footage of V
Street 1
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City County State Zip Code
For your protection, your pool
(a) Approved for do
Mailing Adtlress____ _ -_ _____-.--.-_-_---__ the deep end wit
(b) Not approved to
MY _ _ -
-_C ity ------------- -unty Of _- _-__.-_-_
`¢u State Zip Code
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Home OHice?_L.-1???? Other OPTIONA
Maryland Pools will car ry out the work on the terms and conditions set forth below and on this reverse side
/
hereol. 23. DIVING STAND-Ga.
Yes Ff No 1
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Yes C No/' 24. DIVING BOARD - P
non-sled SAFETY irea,
MARYLAND POOLS GENERAL CONSTRUCTION SPECIFICATIONS ] Yes ? No/ 25. GRABRAIL TYPE Ll
contractor.
Included 1. PLANS- MP. to supply computerized pool layout and engineered structural Yes C No/ 26. HANDRAIL(S) - Surly
plans for pool. Yes ?c No [1 27. LOVESEAT(S) -?i h
Included 2. LAYOUT - M.P. to stake out pool prior to excavation. (Buyer to approve pool
locations and elevation.) Yes No P 28. UNDERWATER UGH
Induced 3. BUILDING PERMIT - MP. to obtain swimming pool construction permits for duty underwater men,
Buyer. Buyer to obtain, if applicable, electrical, fencing and plumbing permits. es CONNECTIONS NOT
well as zoning variances, unless otherwise specified. a. Omer k_ _, -
Included 4. ACCESS WALL OR FENCE TO BE- /
licabley?
? Not A
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b Yes NO29. AUTOMATIC POOL
PO
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uyer
a. Removed
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b INCLUDED.)
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nd remove excess soil on
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Included o. EXCAVATION-MP to excava
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day of excavation only. (Floe grading by owwner)- Maryland Pools Representaliva No G 30. HEATER -Installed
Yea
and Bnver (or representative) to be present CLOCK TO BE DEL/
Included a. M P. to include up to one (t) hour of site grading of pool on day of excavatior. AND PROVIDE COG
Grass and Topsoil removal in deck areas included, per plans. Fuel Tank, Venting ar
By Buyer b. Trees in access and pool site areas to be out down so that stumps will not
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height)
exceed
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Yes prom p in pool area
c. M P - to a
stumps at time Oexcavation
6" 7-12"_ 13-18 ._ 19-24"_-..__
Yes/ NO'] 31. HYDRO; A(E 'ECTI
25-30" 31-36" _ over 37"_-.- Sjet
yes i. No/ d. Stumps b cried on site at Buyer's request. Skimmer
,
Yes 17 Ni e. Stomps hauled off Buyer's property. a. Spa raise eam
earl
Yes ? Noy !, hi to remove concrete ? Asphalt ? Shrubs'.- Debris ys ? No 1: 32 AUTOMATIC P
included 6. HYDROSTATIC CONTROL SYSTEM (In stone)
(ELECTRICAL CONNI
Hydrostatic Relief Valve(s) as needed.
included 7. STEEL REINFORCEMENT SPECIFICATIONS - Structurally engineered to Yes/ No O 33. Buyer hereby grants
comply with American Society for Testing and Materials (ASTM) No As,5. project for promotion o
included A. ELECTRICAL BONDING - M.P. to electrically bond entire steel oorao,cm, and
deck equipment for the pool and have inspected by appropriate inspectors. Yes 1 ; No 34- JETS -N
Included 9. POOL SHELL MATERIAL- PNEUMATICALLY APPLIED CONCRETE Yes'..' fJOy' 35. PODL COVERS-.i
(Commonly referred to as GUNITE or SHOTCRETE.) /
Pool structure to be constructed with minimum 14" thick mn[inuous hold
a
Ves No/ 36. SEPARATION TANK
1
beam co meet fhr American Concrete Institute ACI-316 s[entlaib Luildino - -.- ... ...,,.
- ... --
Maryland, Virginia
West Virginia, Delaware
and Pennsylvania
TERMS AND CONDITIONS OF CONTRACT
documents have been completed, iI applicable, M.P. shall PROCEED diligently to complete the pool,
but shall not be responsible for delays caused by: acts of God, Buyer or Buyers agents, war, riot,
inclement weather. government action or inaction, vandalism, Buyers failure to make payments when
due, or other reasons beyond M.P's control. Construction shall be deemed completed when the pool
is plastered, and if applicable, (notwithstanding) the fact that Buyer has not connected water,
electricity or fuel or that repairs or warranty work may be outstanding. The date of completion shall be
extended 3 days for each day of delay caused by any other events referred to herein. Should certain
materials or accessories become unavailable. M.P. shall have the right to make a substh rbon equal to
or better at no extra cost to the Buyer. All pool dimensions are approximate having reasonable
tolerances wither way. It the parties agree that any damages to Buyer for any variation in pool
dimensions would not be readily ascertainable and thus agree to liquidated damages of $12.00 per
square foot for any deviation in water surface area below amount specified in this contract.
6. POST CONSTRUCTION
It deck is not included in M.P. contract, Buyer must provide protection for the pool shell, tile and
coping from damage by the deck by a standard expansion joint of 112" by 4" polysulfide or equal
expansion joint materials. M.P. shall not be liable for damage for pool shell, the or coping caused by
improper installation of deck by Buyer or his contractor. Buyer is responsible for plumbing and for
having water, electricity, venting and lost connected to pool and equipment. It shall be Owner's
responsibility to provide excess fill, hand labor or machinery to bring pool she up to satisfactory grade
after construction, and to landscape and/or restore the grounds.
7. DRAINING POOL
In the event the pool is drained for any reason whatsoever, none of the warranties or guarantees,
hereinabove shall apply unless the Buyer (a) max ass caps and clears the relief plugs and (b) refills
the pool within 10 days after draining. Where Buyer has work performed by others that is not provided
for in this contact - such as, but not limited to, electrical work, deck, landscaping, fences and
retaining walls, M.P. does not warrant such work, and M.P. shall not be held liable for such work or for
loss of damages, 0 any, which may result therefrom.
M.P. shall only be responsible for the insurance for and the actions of its employees, and not
responsible for insurance for, or the actions of employees, or agents of others.
It PAYMENT
Buyer represents that he will not transfer or encumber this property until there has been full payment
of all sums due and owing pursuant to the terms of this conbact. Should any payment due M.P. not
made as provided herein M.P. may discontinue its performance hereunder until such payments have
been made in full, and all warranties are VOID.
9. DEFAULT
In the event any and all sums due to M.P. from Owner are not paid in accordance with the Payment
Schedule on the face side hereof, MR. shall have the right to exercise any or all at the following
remedies: (1) place a lien against Owner's property; (2) stop work until such time as past due
payments are brought up-to-date or stop work until such time as the Owner pays the full amount which
is or may become due hereunder (in either event, such work stoppages shall not constitute grounds
for any breach of contract against M.P.); (3) charge a late payment fee for each month or portion
thereof that payment is in arrears, which tee shall be equal to one and one-half percent (1-1/2%) per
month multiplied by the amount in arrears; (4) without notice, enter the premises of Owner and
repossess any equipment and/or accessories which can be repossessed and apply the reasonable
value thereof against the unpaid balance due hereunder; (5) exercise any and all remedies available
at law or inequity to M.P. Including any and all remedies of the Uniform Commercial Code, In the
event this contract is placed with an attorney for collection, Owner agrees to pay M.P's attorney's lees
in the amount In arrears.
Any controversy, action, claim, dispute, breach or question of interpretation relating to or arising out of
this contract shall be resolved by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association and judgement upon the award tendered by the arbitrators may
be entered in any coon having jurisdiction.
The costs of arbitration shall be bome by the losing party or shall be bome in such proportions as the
arbitrators dermahk e.The lose of arbitration to the person or company requesting the arbitration are as
follows:
Amount of Claim Initial Filing Fee Case Service Fee
Above 0 to $10,000 00400 n/a
Above $10 DDO to $75 ODO $750.00 Na
Above $75,000 to $150,000 $1, %.00 Each $750
Above $150,000 to $300,000 $2,750.00 Each $1,000
Under Business Regulation Article S88-405(C), Annotated Code of Maryland, a claim against the
Home Improvement Guaranty Fund by an owner shall to stayed until completion of any mandatory
arbitration proceeding.
Agreement does not create the relation of principal and agent between Maryland Pools and Master Pools Cooperative Guild, Inc, a California
n ('Master Pools"), and under no circumstances is either parry to be considered titre agent of or liable for the acts or omissions of the other. Marylk
ndent contractor and is not in any manner or for any purposes whatsoever an employee or agent of Master Pools. Maryland Pools is not allthod
merits for on on behalf of Master Pools, create any obligation or responsibility, express or implied, for or on behalf of Master Pools, accept pay
due or owed to Master Pools, accept service of process for Master Pools, a bind Master Pools in any manner or other whatsoever.
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W. SCOTT HENNING, ET AL.,
PLAINTIFFS
V.
MARYLAND POOLS, INC.,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
05-4897 CIVIL TERM
ORDER OF COURT
AND NOW, this 7_? day of October, 2005, a Rule is entered
against plaintiffs to show cause why the relief requested herein should not be granted.
Rule returnable fifteen (15) days from service. Any answer filed shall be forwarded by
the Prothonotary to chambers.
1IveamAk) I ThomPs &r
L,,K Scott Henning, Esquire
Charles Gilman, Esquire
sal
By th%C-ourt,
Edgar B. Bayley, J.
ID's ?
Charles Gilman, Esquire
Identification No.: 86966
Donna M.B. King, Esquire
SILVERMAN THOMPSON & WHITE, LLC
201 North Charles Street, Suite 2600
Baltimore, Maryland 21201
(410) 385-2225
W. SCOTT HENNING, et al., * IN THE COURT OF COMMON PLEAS
Plaintiffs, * CUMBERLAND COUNTY,
V, * PENNSYLVANIA
MARYLAND POOLS, INC.,
Defendant. * Case No.: 05-4897
#
# # # # # # # # # # # #
MOTION TO MAKE RULE ABSOLUTE ON ORDER OF COURT TO SHOW
CAUSE WHY ACTION SHOULD NOT BE STAYED AND ARBITRATION
COMPELLED
Defendant Maryland Pools, Inc. ("Maryland Pools") by and through its undersigned
attorneys, moves to make Rule absolute on the October 25, 2005 Order of this Court to show
cause why this action should not be stayed, based on an arbitration agreement between the
parties, and to compel arbitration, and states as follows:
1. On October 11, 2005, Maryland Pools filed its Motion to Stay Action and to
Compel Arbitration. On October 25, 2005, this Court entered a Rule against Plaintiffs W.
Scott Henning and Bernadette Henning to show cause why the requested relief should not be
granted. Plaintiffs did not show cause why the requested relief should not be granted.
2. Maryland Pools therefore moves to make the Court's Rule absolute, and to stay
this action pursuant to an arbitration provision in the contract at issue between the parties.
WHEREFORE, Defendant Maryland Pools, Inc. respectfully requests that this Court
make its October 25, 2005 Rule absolute.
yfis 67,
Charles Gilman
Identification No.: 86966
Donna M.B. King (pro hac vice motion to be submitted)
SILVERMAN THOMPSON & WHITE, LLC
201 North Charles Street, Suite 2600
Baltimore, Maryland 21201
(410) 385-2225
Attorneys for Defendant Maryland Pools, Inc.
CERTIFICATE OF SERVICE
I hereby certify that on this 30th day of December 2005, I served the foregoing Motion
to Make Rule Absolute on Order of Court to Show Cause Why Action Should Not be Stayed
and Arbitration Compelled via First Class mail to W. Scott Henning, Esquire, Handler,
Henning & Rosenberg, LLP, 1300 Linglestown Road, Harrisburg, Pennsylvania 17110,
appearing pro se and as attorney for Bernadette Henning.
Donna
onna M.B. King
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JAN 0 5 2006
MIv
* * * * * * * * * * *
W. SCOTT HENNING, et al., * IN THE COURT OF COMMON PLEAS
Plaintiffs, * CUMBERLAND COUNTY,
V. * PENNSYLVANIA
MARYLAND POOLS, INC.,
Defendant. * Case No.: 05-4897
*
* * * * * * * * * * * *
ORDER ON MOTION TO MAKE RULE ABSOLUTE ON ORDER OF COURT TO
SHOW CAUSE WHY ACTION SHOULD NOT BE STAYED AND ARBITRATION
COMPELLED
Upon Consideration of Defendant, Maryland Pools, Inc.'s motion to make Rule
absolute on the October 25, 2005 Order of this Court to show cause why this action should
not be stayed, based on an arbitration agr ment between the parties, and to compel
arbitration, it is on this ?' •? day of 2006 _e! ORDERED that the October 25, 2005 Rule of this Court is hereby ABSOLUTE, and it
is further
ORDERED that this matter is stayed pending arbitration.
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J
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O`
Judge, Court of eb,
Cumberland County,
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r.i
,?S -
Curtis R. Long
Prothonotary
office of toe Vrotoonotarp
Cumberlanb Countp
Renee K. Simpson
Deputy Prothonotary
John E. Slike
Solicitor
OS-'q 4 7 CVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 28TH DAY OF OCTOBER, 2009, AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA
R C P 230.2.
BY THE COURT,
CURTIS R. LONG
PROTHONOTARY
One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573