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HomeMy WebLinkAbout05-5280IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA - s? No. 0S_ Civil Action - Law Daniel D. McCurdy, Jr. Tracy L. McCurdy 1646 Lowell Lane New Cumberland, PA 17070 Plaintiffs PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. Writs of Summons shall be issued and forwarded to (X) Attorney ( ) Sheriff. Donald M. Lewis III, Esquire Keefer Wood Allen & Rahal, LLP 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 n? 717-GJJ - S., v3 TO THE ABOVE-NAMED DEFENDANTS: Haubert Homes, Inc. versus 15 Central Blvd. Camp Hill, PA 17011 -and- : Trex Company, Inc. 160 Exeter Drive «A, inchester, VA 22603-8605 Defendants gna re ttorney Supreme Court I.D. No. 58510 Date: Jober 5, 2005 WRIT OF SUMMONS (2 t U L LQ-T??L_n YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Prothonotary ' Date: by Deputy ( ) Check here if reverse is issued for additional information. t; CYO -""j ^? cs ? ? DANIEL D. McCURDY, JR. and TRACY L. McCURDY, Plaintiffs V. HAUBERT HOMES, INC. and TREX COMPANY, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5280 CIVIL TERM PRAECIPE FOR ENTRY OF APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY: Please enter my appearance on behalf of Defendant Trex Company, Inc. in the above- captioned action. 101,0 14_S Dated 1q, Ki berly M. Colonna I.D. No. 80362 McNees Wallace & Nurick LLC P.O. Box 1166 Harrisburg, PA 17108 (717) 237-5278 CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served by first-class mail upon the following: Donald M. Lewis, III, Esquire Keefer Wood Allen & Rahal, LLP 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Haubert Homes, Inc. 15 Central Boulevard Camp Hill, PA 17011 Kimberly M. Colonna October a0 , 2005 ' s- , r ? ? ? ?-? ,, ?.. , _?: ;?; SHERIFF'S RETURN - REGULAR CASE NO: 2005-05280 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCCURDY DANIEL D JR VS HAUBERT HOMES INC ET AL KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon HAUBERT HOMES INC the DEFENDANT , at 1503:00 HOURS, on the 27th day of October 2005 at 15 CENTRAL BLVD CAMP HILL, PA 17011 by handing to CHERYL SELLERS, PURCHASING AGENT, ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS _ together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs Docketing 18.00 Service 13.44 Postage .37 Surcharge 10.00 .00 41.81 Sworn and Subscribed to before me this 7u day of LcUZ4. ?cn A. D. Pro of ry So Answers: R. Thomas Kline 10/28/2005 KEEFER WOOD ALLEN RAHAL By: y DANIEL D. McCURDY, JR. and TRACY L. McCURDY, Plaintiffs VS. METTE, EVANS & WOODSIDE HAUBERT HOMES, INC. and TREX COMPANY, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5280 CIVIL TERM CIVIL ACTION - LAW ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of Jennifer A. Yankanich, Esquire on behalf of Defendant, Haubert Homes, Inc. in the above-referenced matter. Respectfully submitted, By: 7 Jenni . Yank ich, Es e S I.D. No. 8420' 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendant, Haubert Homes, Inc. Date: 11/10/05 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing Entry of Appearance upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Donald M. Lewis, III, Esquire Keefer Wood Allen & Rahal, LLP 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorneys for Plaintiff Kimberly M. Colonna, Esquire McNees Wallace & Nurick, LLC P.O. Box 1166 Harrisburg, PA 17108 Attorneys for Defendant, Trex Company, Inc. METTE, EVANS & WOODSIDE By: Jenne A. Y anic , q squire SuI(, I.D. o. 84W 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Haubert Homes, Inc. DATE: 11110105 4368020 ??', O i-; -n C _'; ,--t i» -_'i "' -'? r U?i ! iC=S r_ .' 1? Pt ?._i ?.c? Y .. _? ` DANIEL D. McCURDY, JR. and TRACY L. McCURDY, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5280 CIVIL TERM HAUBERT HOMES, INC. and TREX COMPANY, INC., Defendants PRAECIPE FOR RULE TO FILE COMPLAINT TO: THE PROTHONOTARY OF CUMBERLAND COUNTY Please issue a Rule upon Plaintiffs to file their Complaint within twenty (20) days or a judgment of non pros maybe entered. McNEES WALLACE & NURICK LLC B Y Kimberl M. Colonna I.D. No. 80362 McNees Wallace & Nurick LLC P.O. Box 1166 Harrisburg, PA 17108 (717) 237-5278 Dated: November 15, 2005 CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served by first-class mail upon the following: Donald M. Lewis, III, Esquire Keefer Wood Allen & Rahal, LLP 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorneys for Plaintiffs Jennifer A. Yankanich, Esq. Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorneys for Haubert Homes, Inc. Kimberly . Colonna November 15, 2005 DANIEL D. McCURDY, JR. and TRACY L. McCURDY, Plaintiffs V. HAUBERT HOMES, INC. and TREX COMPANY, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5280 CIVIL TERM RULE TO FILE COMPLAINT TO: Daniel D. McCurdy, Jr. and Tracy L. McCurdy, Plainitffs: You are hereby notified to file your Complaint in the above-captioned action within twenty (20) days from service hereof, or judgment of non pros may be entered against you. Pro onotary Dated: ?w. I fo o24aS r- . ? ? ? _. ?? T G? s' ,' ,. ?„? -?? 1 J- ? .? DANIEL D. MCCURDY, JR. and TRACY L. MCCURDY, Plaintiffs V. HAUBERT HOMES, INC. AND TREX COMPANY, INC. Defendants NOTICE CIVIL ACTION Jury Trial Demanded No. 05-5280 Civil 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 Cumberland County Bar Association 32 S. Bedford Street IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Carlisle, PA 17013 (800) 990-9108 DANIEL D. MCCURDY, JR. and IN THE COURT OF COMMON PLEAS TRACY L. MCCURDY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION V. HAUBERT HOMES, INC. AND TREX Jury Trial Demanded COMPANY, INC. No. 05-5280 Civil Defendants COMPLAINT Plaintiffs, Daniel D. McCurdy, Jr., and Tracy L. McCurdy, by their counsel, Keefer Wood Allen & Rahal, LLP, for their complaint against Haubert Homes, Inc., aver as follows: Plaintiffs are adult individuals, husband and wife, who reside at, and are the owners of, the property located at 1646 Lowell Lane, New Cumberland, Cumberland County, Pennsylvania 17070. 2. Haubert Homes, Inc. is a Pennsylvania business corporation whose principal place of business is located at15 Central Boulevard, Camp Hill, Cumberland County, Pennsylvania 17011. On or about August 3, 2001, Plaintiff Daniel D. McCurdy, Jr. and defendant Haubert Homes, Inc. (hereinafter "Haubert") entered into a written agreement (hereinafter "the Contract") whereby Haubert agreed to serve as the general contractor for the construction of the residence to be located at 1646 Lowell Lane, New Cumberland, Pennsylvania 17070 (hereinafter "Plaintiffs' Residence"). (A true and correct copy of the Contract, including all change orders, is incorporated by reference and attached hereto as Exhibit "A"). 4. Plaintiffs took possession of the property and moved in during May 2002. 5. At all times material and relevant hereto, all work and/or duties relative to the construction of Plaintiffs' residence were performed and/or controlled by Haubert. 6. At all times material and relevant hereto, Haubert had direct responsibility for supervising and coordinating the construction activities of all subcontractors. Plaintiffs performed all obligations on their part to be performed under the Contract. COUNTI (Breach of Contract) Plaintiffs v. Haubert Homes, Inc. 8. Plaintiffs incorporate here by reference the foregoing paragraphs 1 through 7 as if fully restated. 9. Under the terms of the Contract, Haubert agreed: a. That Haubert would complete all work contracted for in a good, proper and workmanlike manner; b. That Haubert would guarantee the quality of materials and workmanship furnished by it to be of top quality and Haubert would repair and/or replace any defects in the materials furnished by Haubert, its subcontractors and/or material suppliers at no cost to Plaintiffs; C. That Haubert would complete all work in accordance with the plans and specifications which were made part of the Contract; and -2- d. That the plans and specifications provided by Haubert for the construction of Plaintiffs' residence were appropriate, adequate and sufficient to construct a residence that was structurally sound and in compliance with applicable building codes and municipal ordinances. 10. Haubert, by and through its agents, employees, servants and/or subcontractors, materially breached the Contract with Plaintiffs, both generally and in the following particulars: a. The materials and/or workmanship provided by Haubert were defective; b. The work performed and/or controlled by Haubert was not completed in a good or workmanlike manner; C. The work performed and/or controlled by Haubert failed to conform to the requirements of the Contract, plans and/or specifications; and d. Haubert has failed and/or refused to remedy the deficiencies in the material and work provided. 11. Haubert's material breaches of the Contract include, but are not limited to the following: a. The deck was not properly installed to the manufacturer's specifications, with the result that it is warping and sagging, is inadequately supported, and holds moisture that has apparently contributed to the growth of mold and mildew, and permanent discoloration. Trex® specifications require, inter alia, sufficient gapping between boards to allow for thermal expansion without -3- compromising drainage between boards; many of the boards on Plaintiffs' deck abut tightly together, which allows rainwater to pool. b. The nail hole patching in the foyer does not match the color of the floor. C. The drain under the landing deck behind the house is unsatisfactory and should be changed to a rock pit. d. The window sills have separated from the walls throughout the house beyond what might be attributable to normal shrinkage of lumber. e. The floor squeaks in the main floor bedroom. f The floor squeaks in the master bedroom. g. The roof vents were not installed properly; flashing is under the shingles on the downside. h. Deadbolts were never installed on the sliding doors or the French door. i. The sidewalk is cracked. j. The windows in the family room and kitchen leak during heavy rain. -4- k. The roof leaked, causing damage on repeated occasions to the interior wall of the master bedroom, mandating emergency repairs at Plaintiffs' own expense to avoid further risk of damage. 12. Despite repeated requests by Plaintiffs, Haubert has failed and/or refused to repair and/or replace the construction defects and deficiencies. 13. As a result of the above stated breaches by Haubert, Plaintiffs have incurred and/or will incur direct, indirect, consequential, general and special damages, including, but not limited to the following: a. Costs and expenses associated with completing and/or correcting the work performed and materials supplied by Haubert that are defective, not in compliance with the requirements of the Contract, and require repair and/or replacement; and/or b. To the extent repairs and/or replacements are not feasible, the diminution in the value of the residence; Under either measure, Plaintiffs' damages exceed $25,000, the limit for mandatory arbitration in Cumberland County. 14. Plaintiffs provided timely notice to Haubert of the defective work and materials and otherwise performed all obligations on their part to be performed under the Contract. - 5 - WHEREFORE, Plaintiffs Daniel D. McCurdy, Jr., and Tracy L. McCurdy hereby demand judgment in their favor, and against Haubert, in an amount that exceeds $25,000, the limit for mandatory arbitration in Cumberland County, plus costs of suit and interest. COUNT II (Breach of Express and Implied Warranties) Plaintiffs v. Haubert Homes, Inc. 15. Plaintiffs incorporate here by reference the foregoing paragraphs 1 through 14 as if fully restated. 16. Haubert expressly and impliedly warranted and represented to Plaintiffs: a. That Haubert would complete all work contracted for in a good, proper and workmanlike manner; b. That Haubert would guarantee the quality of materials and workmanship furnished by it to be of good quality and Haubert would repair and/or replace any defects in the materials furnished by Haubert, its subcontractors and/or material suppliers at no cost to Plaintiffs; C. That Haubert would complete all work in accordance with the plans and specifications that were made part of the Contract; and d. That the plans and specifications provided by Haubert for the construction of Plaintiffs' residence were appropriate, adequate and sufficient to construct a residence that was structurally sound and in compliance with applicable building codes and municipal ordinances. -6- 17. The defects in Plaintiffs' residence and Haubert's failure and/or refusal to repair and/or replace the same, as set forth more fully in paragraphs 11 and 12 of this complaint, constitute material breaches by Haubert of the express and implied warranties given to Plaintiffs. 18. As a direct and proximate result of Haubert's breach of the express and implied warranties, Plaintiffs have incurred and will continue to incur damages, as set forth in paragraph 13 of this complaint. 19. Plaintiffs provided timely notice to Haubert of the defective work and materials and otherwise performed all obligations on their part to be performed under the warranty provisions of the Contract. WHEREFORE, Plaintiffs Daniel D. McCurdy, Jr., and Tracy L. McCurdy hereby demand judgment in their favor, and against Haubert, in an amount that exceeds $25,000, the limit for mandatory arbitration in Cumberland County, plus costs of suit and interest. COUNT III (Violation of the Unfair Trade Practices and Consumer Protection Law) Plaintiffs v. Haubert Homes, Inc. 20. Plaintiffs incorporate here by reference the foregoing paragraphs 1 through 19 as if fully restated. 21. At all times material and relevant hereto, Plaintiffs were "purchasers" within the meaning of the Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 P.S. §§ 201-1, etseq. -7- 22. The Contract deals with "goods or services" within the meaning of the UTPCPL. 23. The goods or services relating to the Contract were primarily for personal, family or household purposes. 24. The transaction underlying the Contract constituted "trade or commerce" within the meaning of the UTPCPL. 25. The actions, errors and omissions of Haubert relative to the construction of Plaintiffs' residence constitute unfair or deceptive acts or practices under Sections 2(4)(vii), (xiv), (xviii) and (xxi) of the UTPCPL, as follows: a. In failing to construct to construct the residence according to the terms of the Contract, as set forth more fully hereinabove; b. In constructing the residence in a careless, negligent, shoddy and unworkmanlike manner, as set forth more fully hereinabove; C. In failing and/or refusing to repair and/or replace the defects, as set forth more fully hereinabove, after receiving notice of the same; d. In failing to inform and/or obtain authorization from Plaintiffs prior to constructing the residence in a manner inconsistent with the Contract; e. In concealing and/or failing to disclose the construction defects, as set forth more fully hereinabove, and/or representing that said defects did not exist. 26. As a direct and proximate result of the grossly negligent, reckless and outrageous conduct of Haubert as set forth more fully above, Plaintiffs have suffered damages, as set forth in paragraph 13 of this complaint. -8- 27. As a result of the unfair or deceptive acts or practices of Haubert, Plaintiffs are entitled to recover treble damages and costs of suit, including reasonable attorneys' fees and interest. WHEREFORE, Plaintiffs Daniel D. McCurdy, Jr., and Tracy L. McCurdy hereby demand judgment in their favor, and against Haubert, in an amount that exceeds $25,000, the limit for mandatory arbitration in Cumberland County, plus treble damages, costs of suit, including reasonable attorneys' fees, and interest. Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Dated: December 6, 2005 By Doi3 .Lewis III 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 717-255-8038 Attorneys for plaintiffs -9- VERIFICATION The undersigned, Daniel D. McCurdy, Jr., and Tracy L. McCurdy, hereby verify and state that: They are the plaintiffs herein; 2. The facts set forth in the foregoing complaint are true and correct to the best of their knowledge, information, and belief; and 3. They are aware that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. ?dy, Jr. l td I Tr acy L. McCurdy Dated: December s' , 2005 3? ?? ??? rt rsy: ass?clates; It/In04n/U; Auq-4--VI 4: Varm; ruge 4/IL 15 Central Blvd., Camp Hill, PA 1 (717) 761-^,9:51 Pt FAX (717) 7t& RAUBERT TH15 AGREEMENT (hereinafter refer "Agreement' ade the 3 day of _ in the year y an tween ERT I10bES, INC. (hereinafter referred to as "Contrac and ? N of ?.,u Yl 7bs (hereinafter referred to as "Buy ")_ V4ITNESSETII that' tion /have ovenants and agreements herein contained and intending to be le ly bhe parries hereto do agree to the following terms and conditio 1. Definitions. The f owing terms sssigned meanings for the purposes of this Agreement: Section 1. i. tra Documents a contract documents consist of this Agreement (includi a 'fie and G eral conditions attached to the Agreement), any drawings, and w licable, the adon Disclosure Addendum, specifications, p •ch amendments and ch a orders relating to the Agreement. These cum co itut a entire contr t between the Contractor and Buyer, and shall of be in re t by written endment to the affected contract documents uted y e Contractor d the Buyer. Any and all oral discussions, u 'ngs, and agreements etween the Contractor and the Buyer before the ex of the Agreement w ch are not specifically covered by the Contract doc are void and are t enforceable against either the Contractor or the Buyer. 2. Contract `Yo . The Contractor agrees to furnish all material and labor necessary for the sons cti n of a resid ce i tified as -mss': rill ?4 (the "Contract Wor u on the grope of Bu7yer f located at # j/,1 rl ?+r Otis- r ?ilc ?d 5 _ (the "Property"). The Contract Work shall be performed in accordance with Schedule "A lans arnd s ecilica'ons 7 furnished by the Contractor and known and identified as ye y, 1 Custom Building for Generofic% . .,y. ....__...._, _? _. ..__. ...e- ._ duplicate copies of which have been signed by the Contractor and the Buyer hereto and delivered to both parties at the time of or before execution of this Agreem t. The Bu er shall pay to the Contra sum 7" 424,41),xi T«?-?,1x^`'?'`?7k -`•( 1744S A:0 Z,23_41?- ) (the "C&tract Price") for the Contract Work in accordance with paragraph 5 subiect to additions and/or reductions by change order as provided in paragraph 5.4 of the Agreement. THE CONTRACT PRICE IS BINDING UPON CONTRACTOR ONLY IF THE CONTRACT WORK IS COMMENCED WITHIN SLXTY (60) DAYS AFTER THE DATE OF THIS AGREEMENT. IN THE EVENT THE CONTRACT WORK IS NOT COMMENCED WITHIN SIXTY (60) DAYS FROM THE DATE OF THIS AGREEMENT, THE CONTRACTOR, AT ITS= SOLE OPTION, MAYT?+T9PAQ%W4C T'I'S{?IZG C>` ?1?'VTTCN??' ?I-4-4i#3-DViL' R. 3. Obligations of Buyer. '3.1. Buyer is purchasing the Lot from Developer on which Contractor is to build the home. Buyer holds harmless a5d indemnifies Contractor from any costs of liabilities arising from Buyer's contract with Developer. /3.2. Buyer acknowledges responsibility for and assumes all risk of encountering subsurface conditions of the land, which may arise before commencement, during, or after completion of construction by Contractor. 3.2.1. Buyer acknowledges the right to retain engineering services, at Buyer's expense, to investigate the Property for suitability for construction. Whether or not such services are engaged, Buyer shall be responsible for any and aLl costs arising from conditions of the land, including but not limited to: additional excavation and blasting, additional reinforced foundation work and suitable fill material. Buyer shall hold Contractor harmless of aforementioned costs. 3.3. Buyer shall review the Schedule "A", plans and specifications submitted by Contractor and,shall give prompt written notice to the Contractor of any fault or defect in the said plans and specifications. 4.r Bayer shalt have furnished to the Contractor rea.-conablc evidence satisfactory to the Contractor, prior to starting work under this Agreement, that sufficient funds are available and committed to pay the Contract Price. jJ /, v INCIP?-CA c r r (. Lc t?Tr:II` s ?)GE f r-1 SAS CP 0190 IV tG 5 T T- Iq rew rr:R6 tL• C /21C PL.L'S' A FtR C`v`Cr:lie% 3.5. It shall be the responsibility of the Buyer to approve the Contractor's placement of the Contract Work on the Property including locating the lot comers, elevations and other data necessary for this purpose. if the Bayer fails to provide the Contractor with directions to locate the Contract Work on the Propety prior to the time that the Contractor commences the Contract Worc the Contractor may place the nL oy, Contract Work on the Property, which must be expressly approved by Buyer. In such event, Contractor shall be released, indemmniEmd. and held harmless by the Buyer for any liability under the Agreement or otherwise for any claim, demand or cause of action whatsoever arising out of the location of the Contract Work on the Property, so long as Contractor locates the contract work in accordance with this paragraph. f 13.4. The Buyer shall be responsible for assuring that all public utilities and/or municipal services required during completion of the Contract Work as well as for use of the Property for residential purposes have been extended to the Property right- of-way line, such extension to be provided at Contractor's cost. 4. Obligations of the Contractor. 4. 1, The Contractor will provide all construction supervision, inspection, labor, materials, tools, equipment, and subcontracted items necessary for the execution and completion of the Contract Work. U. The Contractor will pay all sales, use, gross receipts and similar taxes related to the Contract Work to be provided by the Contractor, which taxes have been legally enacted at the time of execution of this Agreement. 4,3. The Contractor warrants to the Buyer that all materials and equipment incorporated into the Contract Work will be new unless otherwise specified, and that all Contract Work will be of good quality, in conformance with the contract documents. 4.4. The Contractor shall at all times keep the premises reasonably free from the accumulation of waste materials or rubbish caused by the operations of the Contractor. At the completion of the Contract Work, the Contractor shall remove all tools, construction equipment, machinery and surplus materials, and shall leave the work area "broom" clean or its equivalent. 13.4. The Buyer hereby authorizes, directs and appoints the Contractor, in the limited capacity, to act as the Buyer's agent and attorney-in-fact in the Buyer's name and at the Buyer's expense solely to procure all applicable permits; and approvals. The Buyer shall cooperate with the Contractor to the extent necessary to acquire all necessary permits and approvals including but not limited to, executing all required forms and applications, expcditiously providing the Contractor with all information required to complete the forms and applications. 5. Payment of Contract Price, Progress Payments. 5.1. As compensation for the completion of the Contract Work, the $t.yer aar-es to pay the Contractor, in current funds, the Contract Price ofT ?N tsat?h ?w? ./?VW Tc;z u^J v A"Q-4 &!A (subject to the provisions of paragraph 2 of this Contract and in this p- agraph 5). :y: . 1 .............. ,.,, ray. ,, is 5.2, The Contract Price shall be paid by the Brayer to the Contractor according to the followip g Draw Schedule upon written applications for payment submitted by the Contractor to the Brayer, after inspection by Ratyer and/or Buyer's Professional Engineer that the work by Contractor has been completed to Buyer's satisfaction, which shall not be.unreasonable: 0% of the Contract Price upon the execution of this Agreement; CZ0 % of the Contract Price upon the completion of the foundation; /,S' %,/ of the Contract Price when the roof is completed, when framing and sheathing are completed and when all windows are set in place; %? of the Contract Price when the installation of electrical and plumbing k %'- systems, in rough form, are completed; f h C t P i h h i o t on ract r ce w e en t e nterior drywall is sanded and ready for 4?0/0 painting; of the Contract Price upon substantial completion of the building as defined in the Agreement or at the time of occupancy of the Contract Work by the Buyer. This Draw Schedule may be modified in writing by the Buyer and the Contractor to conform to the Schedule of Advances required by the Buyer's construction mortgage lender. 5.3. The Contract Price includes estimates or allowances for certain items of work as more specifically set forth on Schedule "A" attached hereto and made a part hereof. THE BUYER UNDERSTANDS AND AGREES THAT THE CONTRACT PRICE IS SUBJECT TO DECREASE OR INCREASE BASED UPON THE ACTUAL COST OF SUCH WORK PLUS A 10% FEE FOR OVERHEAD AND THAT NO SUCH CHANGE SHALL INVALIDATE THIS AGREEMENT. The Contract Price shall be subject to change if the Buyer's lot conditions require additional foundation work in excess of the plans and specifications, including Engineering, design, and inspection costs of same. 5.4. A Change Order is a written order to the Contractor signed by the Buyer or his authorized agent and issued after the execution of this Agreement, authorizing a change in the Contract Work and/or an adjustment in the Contract Price, or the Contract Time. 5.5. The Buyer, without invalidating the Ag =ment, may order changes in tht: Contract Work consisting of additions, deletions, or modifications. The Contract Price and the Contract Time shD, where appropriate, be adjusted accordingly. All such changes in the Contract Work shall be authorized by written Change Order signed by the Buyer and the Contractor's representative. No change order work shall be commenced until a chance order signed by Brayer is received by Contractor. Buyer shall make payment in advance for all Change Order work. 4 V.. U55-,: aft>I , ?, ro•aru. u, ..uy-Y-ui -r.u..n n?? ?. , oyc o/ Ic 5.5. The Contract Price, Contract Work and the Contract Time may be changed only by Change Order or as otherwise specified n, this Agreement. 5.7. The cost or credit to the Buyer from a change in the Contract Work shall be determined by mutual agreement. 5.8. Final payment constituting the unpaid balance of the Contract Price as adjusted by Change Order shall be due and payable when the Contract Work is delivered to the Buyer, upon substantial completion, or prior to the Buyer occupying the home, whichever event first occurs. If there should remain minor items to be completed, the Contractor and the Buyer shall jointly list such items after a joint "walk-through" inspection of the Contract Work (hereinafter referred to as "Punch List"). Completion of such items by the Contractor shall not extend Substantial Completion of the Contract Work nor delay payment of the balance of the Contract Price. The Buyer shall not occupy the Contract Work until the Contract Price has been paid in full. 5.9. The making of final payment shall constitute a waiver of all claims by the Buyer except those arising from (1) unsettled liens, (2) faulty or defective Contract Work appearing within one (1) year after substantial completion, (3) failure of the Contract Work to comply with the requirements of the contract documents, or (4) completion of the Punch List. Acceptance of final payment shall constitute a waiver of all claims by the Contractor except those previously made in writing and still unsettled. Occupancy of the home by the Buyer shall constitute acceptance of same by the Buyer, and the Contractor, except as provided above, shall thereafter be under no obligation whatsoever to the Buyer relative to the construction of said home. 6. Time of Performance; Substantial Completion. 6.1 The Contract Work to be performed under the Agreement shall be commenced on or about fifteen (15) days after the date the Buyer has fulfilled all obligations required by Paragraph 3 of the Agreement, and except as otherwise provided or permitted by the Agreement shall be substantially completed not later than 150 days after commencement of excavation for the foundation; Substantial Completion shall be defined as Buyer being issued a Certificate of Occupancy and all Contract Work, pursuant to Schedule "A" being completed to Buyer's satisfaction, which shall not be unreasonable. 6.2. The date of Substantial Completion of the Contract Work is the date when constructicu is Substantially Completed in accordance with paragraph 6.1. Warranti es called for by the Agreement shall commence the Date of Substantial Completion. 53. If the Contractor is delayed a: aLy time in the progress of the Contract Work by any act, failure or neglect of the Puyer or by changes ordered in the Contract ni tray: eSSOCidLeS; n 1rae45[e; Aug-4-01 4:05PM; -Y Page 9/12 Work or by labor disputes, fire, unusual delay in transportation, adverse weather conditions not reasonably anticipated, unavoidable casualties, by any action or inaction of a subcontractor or any ecutractor retained directly by Buyer, or any other cause beyond the Contractor's control, or a delay authorized by the Buyer, then the Date for Substantial Completion shall be extended for the period of such delay. 6.4. Issuance of occupancy permits by the appropriate governmental agency shall be deemed by Buyer and Contractor as conclusive proof of compliance with all codes and ordinances then in effect in the location of the Property. Buyer's acceptance of the said occupancy permits shall constitute a complete waiver and release of any claim based upon alleged failure to comply with any such codes and ordinances. 7. Insurance. 7, 1. Indemnity. The Contractor agrees to indemnify and hold harmless the Buyer from all claims for bodily injury and property damage (other than the Contract Work itself and other property insured under Paragraph 7.2) that may arise from the Contractor's operations under this Agreement subject to the limitations of Paragraph 8 below. 7.2. Contractor's Liability Insurance. The Contractor shall purchase and maintain such insurance as will protect it from claims under Workmen's Compensation acts and other employee benefit acts, from claims for damages because of bodily injury, including death, and from claims for damages to property which may arise out of or result from performance of the Contract Work. This insurance shall be written for not less than any limits of liability required by law and shall include contractual liability insurance as applicable to the Contractor's obligations under this Agreement. 73. Buyer's Liability Insurance. The Buyer shall be responsible for purchasing and maintaining liability insurance and, may maintain such insurance as will protect against claims which may arise from performance of the Agreement and circumstances arising from Paragraph 8 below. 7.4. Buyer's Property Tnsurance. The Buyer shall purchase and maintain property insurance upon the entire Contract Work to the full insurable value thereof. This insurance shall include the interests of the Buyer, the Contractor, the Subcontractors and Sub-subcontractors in the Contract Work and shall insure against the perils of fire, extended coverage, vandalisut and malicious mischief. Any insured loss is to be adjusted with the Buyer and made payable to the Bayer as trustee for the insured's as their interests may appear, subject to the re:,u+:rcments of any mortgagee clause. The Buyer shall provide a copy of all policies to the Contractor prior to the commencement of the Contract Work, The Buyer and Contractor waive all rights against each other for damages caused by fire or other peril; to the extent covered by insurance ,sovided under this paragraph. r1L by; eb5U0 LCO, 1, , o?c iv/ is S. Buyer's Access to Property During Construction. .. 8.1. Miscellaneous Provisions. Completion of the Contract Work within the Contract Time is expressly conditioned upon the Contractor being provided with free and uninterrupted access to the Property as well as the free and uninterrupted opportunity to perform the Contract Work. The Buyer specifically covenants and agrees to not interfere with or obstrrtct the Contractor's performance of the Contract Work under the Agreement. The Buyer shall have the right to periodic and reasonable inspections of the Contract Work but shall direct all questions and communications concerning the Contract Work to the Contractor's Project Manager and shall at no time communicate with or interfere with the Contractor's employees and subcontractors while on the premises or otherwise. 8.2. If Buyer is to personally perform or independently subcontract work on the Contract Work, all such work shall be expressly approved by and scheduled with Contractor's Project Manager. 8.3. In order to obtain Contractor's approval to personally pet-form or subcontract work under 8.2, Buyer, Buyer's agents, subcontractors or invitees shall obtain and furnish proof of valid liability insurance specifically naming Contractor as an additional insured and providing for coverage indemnity and defense of Contractor in the event Buyer, Buyer's agents, subcontractors or invitees are injured or suffer property damage while on the Property. 9. Exclusion of Warranties. 9.1. The Buyer hereby acknowledges that Contractor has neither made nor is making hereby any warranties other than those expressly contained in this Agreement. THE BUYER HEREBY ACKNOWLEDGES AND AGREES THAT ANY WARRANTIES OF HABITABILITY AND/OR FITNESS FOR INTENDED USE WHICH MIGHT OTHERWISE BE IMPLIED BY LAW ARE AGREED TO BE SPECIFICALLY EXCLUDED FROM THIS AGREEMENT, THE CONTRACTOR MAKES AND THERE. EXISTS NO OTHER WARRANTIES OR REPRESENTATIONS, WRITTEN OR IMPLIED, CONCERTING THE CONTRACT WORT{ OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT. Specifically, the Contractor disclaims any warranty or representation concern ins (a) chips and cracks of nonstructural. cause appearing in concrete floors and masonry walls, (b) shrinking and twisting of lumber caused by drying of lumbers, (c) movement of the structure caused by natural settling after completion of construction, and (d) moisture in the structure basement. 7 Ill Oy. now........ .?.•vv-....., -i....., rnye II/IG lt?. LlrtsiL•atiort of,'?zyntx9les. With regard to any claims by the Buyer resulting from faulty or defective work as set forth herein or with regard to failure of the Contract Work to comply with the requirements of the contract documents, the remedies of the Buyer in such cases shall be limited to repair or replacement of the defective or non-conforming work by the Contractor at the Contractor's expense, or, only if repair is not feasible to actual damages, including consequential damages such as loss of use, reduction in market value or similar losses. In the event Contractor is not able to or is denied aces by Buyer to conduct repair or replacement, Buyers are limited to Contractor's actual cost of repair or replacement plus reasonable Contractor's "mark-up." 11. Default. If the Buyer shall default hereunder prior to the beginning of Contract Work, Contractor shall retain the money paid by Buyer as liquidated damages; and this Contract shall thereupon terminate. If the Buyer fails to make a Progress Payment to which Contractor is entitled pursuant to paragraph 5.2, the Contractor may, upon seven (7) days' written notice to the Buyer, terminate the Contract and recover from the Buyer payment for all Contract Work completed and for any proven loss sustained upon any materials, equipment, tools, and construction equipment and machinery, including reasonable profit and damages and reasonable attorneys' fees and costs. If the Contractor shall default hereunder, Buyer shall be entitled to recover reasonable Attorney's fees and costs. 12. Transfer Tax on Improvements. In the event the Pennsylvania Department of Revenue (herein the "Department') imposes transfer tax on the value of improvements constructed on the Property pursuant to the Construction Agreement, the tax so assessed shall be paid equally by Contractor and Owner within the time required by the Department. In the event the Department assesses any interest and penalties on the foregoing transfer tax assessment, Contractor shall hold Owner harmless from any such interest and penalties with regard to any assessment by the Department pursuant to 72 P.S., paragraph 8101(c). Owner agrees to cooperate with Contractor in defense of such a tax assessment should Contractor elect to contest the assessment. 13. General Provisions. 13.1. All rights and liabilities herein given to, or imposed upon, the respective patties hereto shall extend to and bind several and respective heirs, executor, administrators, successors and assigns of said parties; and if there be more than one Buyer, they shall all be bound jointly and severally by the term covenants and agreements herein, and the word "Buyer" or "Buyers" shall be deemed and taken to ............... .._y . ... ........., ....y.. . ?, mean each and every person or party mentioned as an owner herein, be the same one or more; and if there be more than one Contractor, they shall be bound jointly and severally by the terms, covenants and agreements herein, and the word "Contractor" or "Contractors" shall be deemed and taken to mean each and every person or party mentioned as a contractor herein be the same one or more. 13.2_ Neither the Bayer nor the Contractor shall assign his interest in this Agreement without the written consent of the other except as to the assignment of proceeds. 133. This Agreement shall be governed by the law in effect at the location of the Property. 13.4. The parties hereto hereby warrant that they have read and are fully familiar with the terms and conditions of this Agreement and agree to be legally bound hereby. The parties further acknowledge that this is a negotiated agreement and that they have each had the opportunity to consult with legal counsel regarding the aforesaid terms and conditions. 115. Time is of the essence as to all provisions and requirements of this agreement. CONTRACTOR: HAUBERT HOMES, INC. ,+.. ?[ l *Authorized Signature Buyer ?g6?4. . *Division Manager Buyer DATE *NOTE: Both signatures required by Contractor to validate Sales Contract. ni ?y: essccaaies; flA BERT flo is _Cusfom Building for Genemfiorns n 1fuco4b18; Aug-4-U1 4:U2PM; -r Page 2112 15 Central Blvd., Camp.Hill, PA 17011 (717) 761-7951. a FAX (717) 751-4125 SCHEDULE A HAUBERT HOMES, INC. DIVLSION: CAMP HILL OFFICE DATE AUGUST 3, 2001 JOB NAVE: DANIEL D. MLCURDY, JR. PHONE: (H) 10 BYERSAVE MECNANICSB(IBG, PA 17055 DEVELOPMENT.- BEACON HILL, LOT 11115 2700 +/- SQUARE FOOT 2 STORY HOME- ELEVATION AS 1182, 785 PER PLAN WITH 3 CAR GARAGE AND 2 GARAGE DOOR OPENERS LOT #115 BF 4CON HLL $ 43,900 ADDENDUM TO RESIDENTL4L CQNSTRUCTIONAGREF,M,ENT *OASFIREPLACEINP'IMII.YR(?0747 $ 3,800 ? '"PARTIAL EXPOSED BASEMENT WITH 2-3026 TWIN WINDOWSAND SIDWG TO GRADE AT SIDESAND REAR AND EXTRA CONCRETE WAIL ON SINGLE GAR GARAGE $ 4,2007/ *12' X 16' TREATED WOOD DECK WITH A 6'X 26' DECK ACROSS REAR OF ITT FLOOR AND 2 SETS OF STEPS TO GRADE $ 4,340 *MICR0WAVE0 VER RANGE IN KITCHZV $ 550 *XITC:HEN CABINETS AS PER PLAN- BASE CABINETS TO BE RAISED I V2- OFF OF FLOOR INCLUDED ;LAUNDRY' ROOM WHE C'ABINYa AS PFR PLAN AND LA UNDRY CHL17E FROM 2ND FLOOR $ 980 *DOVRLE VAA7177F-S IN BATHS AS PER PLANS - VANITM TO BE 6"HIGHER T7L4NREGVLAR VANITY 5 1,700 *WHIRLPOOL TUB AND SEPARATE CARAMIC SHOWER STALL WI7YI SEAT ANOGLASS ENCLOSUREASPERPLAN INMASTERBATH S 3,100 *12'x 16' TREATED WOOD DECK SFT ON I.VL BEAM (7'O CARRY WEIGHT OF HOT TUB) OFF OF MASTER BEDROOM $ 1,300 'GAS NEAT WMI CENTRAL AIR CON'DITrONING INCLUDED *10' PIIGII CONCRETE BASEMENT WALL. - 10" Tf17CK S 3,800 *TRIPLE PATIO DOOR FROM MASTER BEDROOM TO DECK $ 1.100 *APPRO;ML4TELY 450 SQUARE FOOT FINISHED IN BASFMF,V7 FOR RF.CRF47TONR00M PLAYAREA, AND TVROO:b1 5 8,960 *FIh7S11ED BATH IN BASF.MF.N7 WIT71A 3' X 3' FIBERGLAS'S SJIOWE:X S'7ALL. COAAfODE ANO LAYATOMY S 2.400 *BASEMFNT FIXISPIED ARE4 TO IL4 GE SEPARATE ZO,VE FOR HEAT A;VD A1R CONDITIONJING $ 1,500 *STEEP ROOF PITCH (12/17) AS PER PL4N S 4,100 *ADD GASI LV'F TO DECK -4R A FOR GRILL 5 110 *PREPAR= FOR HOOKUP , OR Y[il TF.R C0.7s7NTIOA%$R S 125 . ?......._. _? _y -. ..? -....?i .? . nyc .?i is *ADD HUMIDIFLER TO FUMACE +ADD ELECTRONIC ALR CLEANER T O FURNACE *ADD WATERLINE TO REFRIGERATOR FOR ICEMAKER +ALL DEACON HILL .SITE COSTS INCL I rDING ALL. PERMITS *ALL EXCAVATIONANDEARTHMOPING *SEED AND SI 2 ALLOWANCE OF $1,400 - *SEWER AND WATERLINES FROMCURB TO HOUSE *SIDEWALK AT FRONT OF' LOTAT STRII,'ET *LIGHTJ>\'G ALLOWANCE OF $1,700 WHOLESALE OR 75% OF'F PROGRESS LIGHTING BOOK LIST PRICE TOTAL HOUSE PRICE M- rCLUDING LOT LOT PRICE T'OT.4L PRICE OF HOUSE AND LOT D DYER DUYF_R MUBERTHOA SSALESREP. Dli'ISIONAPPROYAL DATE DATE 9 -p $ 300 $ 800 $ 75 LVCLUDED INCLUDED INCLUDED INCLUDED) LVCLLDED INCLUDED 3227,225 343,900 $271.125 6YI-13 /0/ DATE ,? S--13 /17 DATE AU B R1 HOMES.- Custom Building for Generations 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 ® FAX X717) 761-4125 CHANGE ORDER #1 HA UBERT HOMES, INC. DIVISION : CAMP HILL OFFICE DATE OCTOBER 3, 2001 JOB NAME: DANIEL D. McCURDY, JR. PHONE. (H) 10 BYERS AVE MECHANICSBURG, PA 17055 DEVELOPMENT: BEACON HILL, LOT #115 HOUSE PER SCHED VIE A - ORIGINAL CONTRACT S227,225 CENTRAL DAC S 1,700 INTERCOjLf (ESTIVIATE) S 1,300 RECESSED LIGHTS (8) S 520 KITCHEN B ULKHEAD FOR RECESSED LIGHTS S 400 SE111Y FLOORING IN STORAGE AREA S 200 INSULATE GARAGE S 342 TREX OR EO_ UAL FOR DECKING S 2,440 ESTIMATE FOR SPECIAL CLOSET SHELVING S 800 WIRE FOR CEILING FAN @AfBR # 1, MBR # 2, AND F.AMILYROOM ? S80 EACH S 240 THUMB LATCHAND DEAD BOLT AT FRONT DOOR S 125 AMERICAST SINK AND :LIOEN FA UCET TO MATCH S 3 25 UPGRADE TO RANGE #JGBP30CEA (BISQUE) S 65 UPGRADE DISWASHER TO GSD512ODBB (BLACK) S 30 ULTIMA VINYL IN KITCHEN, NOOKAND LAUNDRY S 208 ADD GLASS DOORS OFF OF FOYER (ESTIMATE) S 880 ADD FORMICA ON WALLS IN KITCHEN S 250 ADD CEILING LIGHTS.AT BR =3 AND BR 44 S 180 TOTAL OF CHANGE ORDER #I S 10,005 NEW TOTAL PRICE OF HOUSE ONLY S237,230 BUYER DATE / PLEASE SIGNAND RETURN BY OCTOBER 10, 2001 (°& Z" flAUBiRl OAIS- Cusiom Building for Generolions 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 a FAX (717) 761-4125 Once construction has begun, payment is due upon rece' change is made. Haubert Homes Representative Owner:hO? Owner: Date: y O? '11 fits Inc. ., Building for Generations 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951® FAX (717) 761-4125 CHANGE ORDER #1 HAUBERT HOMES, INC. DIVISION: CAMP HILL OFFICE JOB NAME: DANIEL D. McCURDY, JR. 10 BYERS AVE MECHANICSBURG, PA 17055 DEVELOPMENT: BEACONHILL, LOT #115 DATE DECEMBER 4, 2001 PHONE: (H) 25"DEEP DRYWALL BULKHEAD FOR RECESSED LIGHTS INKITCHEN' (LIGHTS NOT INCLUDED) $400 DOOR TO ATTICIN'HALL CLOSET NIC CENTER LIGHTS IN BEDROOM 3 AND 4 N IC DEADBOLTS ONALL EXTERIOR DOORS (7X$60) 5410 FL USH FIREPLACE HEARTH NIC IST FLOOR MASTER BEDROOM BATH TO HAVE CERAMIC FLOOR NIC KITCHEN SINK TO HAVE EXTRA HOLE FOR FILTERED WATER SPIGOT NIC MEET WITH CLOSET SHELVING CONTRACTOR FOR MASTER BEDROOM #2 CLOSET - PRICE OF SHEL VING TO BE DETERMINED AFTER LA YO UT CHANGE IN BASEMENT ROOM TO 4 RECESSED LIGHTS FROM THE ORIGINAL PLAN $60 LABOR AND MATERL4L TO WIRE FOR 6 RECESSED LIGHTS LN GREAT ROOM (LIGHTS NOT INCL UDED) 5210 ADD REAR OUTSIDE FLOOD LIGHTS (2 DOUBLE SETS) I AT CORNER OF GARAGE AND I AT REAR GABLE, SWITCHED AT THE IST FLOOR MASTER BEDROOM, 2'"D FLOOR MASTER BEDROOM AND KITCHEN AREA 5220 ADD SIGNAMARK LEHIGH PRIMED DOORS A T FAMIL Y ROOM $1,783 TOTAL OF CHANGE ORDER #2 $3,093 NEW TOTAL PRICE OF HO USE ONLY 5240,313 _ j1-6-0 DYER ? DATE PLEASE SIGNANDRET 'BY DECEMBER 14,2001 .J JBiRT 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951a FAX (717) 761-4125 AIS Change Order No. 3 Page 1 of 1 Wing for Generolions By Mutual Agreement Between Haubert Homes, Inc. (Camp Hill Office) Contractor And Daniel McCurdy, Jr. Lot #: 115 Development: Beacon Hill The following changes, alterations, additions, or substitutions are to be made in work or materials called for in the plans and specifications, which are part of the Building Contract signed by the above parties. DATE: 12/11/01 # Changes Price 1 Slider door to be equipped with auxiliary lock in place $0.00 of deadbolts - white 2 Build recessed area with bulkhead in place of cabinet over $0.00 refrigerator for television 3 Credit phone and TV jacks - by buyer ($120.00) 4 Phone and TV service lines from street to terminate inside $0.00 house by panel box 5 Discuss downspout layout with buyer $0.00 6 Wire for one recessed light at master bath $60.00 7 Add second fan/light at master bath $110.00 8 Add four interior garage outlets $120.00 9 Add one exterior outlet $40.00 10 Reverse master bedroom #1 closet pocket door $0.00 11 Add five basement outlets $150.00 R h bi 12 un ose bs on separate line from water filter lines 13 Exterior water meter pit with lever shut off open entrance to house $0.00 14 Bury downspouts into two pits per discussion with superintendent $160.00 15 Buyers alarm (basic alarms), TV and phone contractor, (Barclay Electric) and water treatment contractor (Filson) to be scheduled during construction $0.00 CO3%?9L Gzo,oo Total Contract to Date -a' T (3 'L) ?' Sf Nc,,,te 70142 Y0, L/ - t ?? 3 Custom Building for Generations 5 Central Blvd., Camp Hill, (717) 761-7951,2 FAX (717) -r _f. AUBfRT OA S-= Cusfom Building for Generofions 15 Central Blvd., Camp $ill, PA 17011 (717) 761-7951 1 FAX (717) 761-4125 Change Order No. 4 Page 1 of I By Mutual Agreement Between Haubert Homes, Inc. (Camp Hill Office) Contractor And Daniel McCurdy Jr. Lot #: 115 Development: Beacon Hill The following changes, alterations, additions, or substitutions are to be made in work or materials called for in the plans and specifications, which are part of the Building Contract signed by the above parties. DATE: 12/18/01 # Changes Price 1 Kitchen diagonal corner cabinet only(CSB36) to be Premier series - Rose Hall Pickle 575.00 2 Kitchen sink to be American Standard single bowl 7172-222 / linen $0.00 * faucet to match; holes for filtered water tap and soap dispenser (by buyer) 3 Add large wood cutting board 9000.250 to kitchen sink $52.00 4 Bury downspouts ($80.00 each) 443e Per discussion with Superintendent front left and back left N111 together into pit, back right into pit S,e e i l e C ZeToiwL Total Contract to Date $284,970.00 f/,u;z #o zglj07 ec?45?A uc (.c Once construction has begun, payment is due upon receip fore cha is made. Haubert Homes Representative Owner: -------) Date: z tv Owner: '5r AUBfRT I0AfSIM<:--. CuArn Building For Generofiom 15 Central Blvd., Camp Hil1, PA 17011 (717) 761-7951 at FAX (71.7) 761-4125 Change Order No. 5 Page 1 of 1 Authority For Change in Sales Contract By Mutual Agreement Between Haubert Homes. Inc. (Camp Hilt Offrcel Contractor And Daniel McCurdy Jr. Lot #: 115 Development: Beacon Hill The following changes, alterations, additions, or substitutions are to be made in work or materials called for in the plans and specifications, which are part of the Building Contract signed by the above parties. DATE: 12/27/2001 # Changes Price 1 Garage walkout door to be style 210 (no glass) Co ,ls_ $0.00 Total Contract to Date Go f 9 Once construction has begun, payment is due upon receip be cl 46 rs made. Haubert Homes Representative Owner:. Owner: Date: z le7 v t. HAURKI 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 a FAX (717) 761-4125 HOAIS Change Order No. 6 Inc. Page I of 1 Custom Building for Generations By Mutual Agreement Between Haubert Homes, Inc. (Camp Hill Office) Contractor And Daniel McCurdy Jr. Lot #: 115 Development: Beacon Hill The following changes, alterations, additions, or substitutions are to be made in work or materials called for in the plans and specifications, which are part of the Building Contract signed by the above parties. DATE: 01/03/2002 # Changes Price Overage on lighting allowance $923.55 c0#( iolill /023.3 aw:ou< C 070,00 .., ", ,?.? T0f?'L 993,5- : Total Contract to Date 5,893.55 $2 Once construction has begun, payment is due upon receipt before change is made. Flaubert Homes Represennnaatrrative?/ Z? - , Owner: •Owner: Date: 83 ?? AUB RT OAISIM<=. Custom Building for Generations 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 a FAX ('M) 761-4125 Change Order No. 7 Page 1 of 1 Authority For Change in Sales Contract By Mutual Agreement Between Haubert Homes. Inc. (Camp Hill Office) Contractor And Daniel McCurdy Jr. Lot #: 115 Development: Beacon Hill The following changes, alterations, additions, or substitutions are to be made in work or materials called for in the plans and specifications, which are part of the Building Contract signed by the above parties. DATE: 01/04/2002 # Changes Price I Add Tyvek housewrap (or equal) to house (except stone area $700.00 L40 *7 7,7W Z 70D. 00 Yl?PVCUy C.:;n?Cref 4#.<6 ?rAL yl? 99 3, SS X se Pa,+?noe'2? Xse %OhL. r .1y21673, 3 900. Total Contract to Date $286,593.55 s I Please sign and return Change Order by January 18, 2002. 1 Now that construction has begun, payment must accompany Ns q a*e Order. I Haubert Homes Representative Owner: Owner: Date: ?/D/ G 1 1 A I In rnT MURKI HOMES= fusfom Building for Generafions Change Order No. 8 Page 1 of 1 Authority For Change in Sales Contract By Mutual Agreement Between IIaubert Homes, Inc. (Camp Hill Office) Contractor And Daniel McCurdy Jr. Lot #: 115 Development: Beacon Hill The following changes, alterations, additions, or substitutions are to be made in work or materials called for in the plans and specifications, which are part of the Building Contract signed by the above parties. DATE: 02/13/2002 # Changes Price 1 Move basement wall to enlarge storage room $230.00 2 Add pull-down stairs for attic access $300.00 3 Add pull-chain light fixture by furnace unit in attic $40.00 Total Contract to Date $287,163.55 Please sign and return Change Order by February 27, 2002. Now that construction has begun, payment must accompany this Change Order. Haubert Homes Representative Owner: L Owner: /117 Date: ?-2G _!-Gb? 15 Central Blvd., Camp Hill, PA 17011 (717) 761-79512, FAX (717) 761-4125 flAUbtKI floAls? (Building for Generations 15 Central Blvd., Camp Hill, PA 17011 (717) 761-79512, FAX (717) 761-4125 Change Order No. 9 Page 1 of 1 Authority For Change in Sales Contract By Mutual Agreement Between Haubert Homes. Inc. (Camp Hill Office) Contractor And Daniel McCurdy Jr. Lot #: 115 Development: Beacon Hill The following changes, alterations, additions, or substitutions are to be made in work or materials called for in the plans and specifications, which are part of the Building Contract signed by the above parties. DATE: 02/27/2002 # Changes Price 1 2 Credit intercom/security allowance -customer paying direct Credit central vac allowance - customer paying direct ($1,300.00) ($1,700.00) Total Contract to Date $284,163.55 I Please sign and return Change Order by March 13. 2002. 1 Haubert Homes Representative Owner: , / `?? Date: -??-?L I 1 A 1 11% 1R 1MT HAURKI InC. Custom Building for Generations 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 a FAX (717) 761-4125 Change Order No. 10 Page 1 of 1 Authority For Change in Sales Contract By Mutual Agreement Between Haubert Homes. Inc. (Camp Hill Office) Contractor And Daniel McCurdy Jr. Lot #: 115 Development: Beacon Hill The following changes, alterations, additions, or substitutions are to be made in work or materials called for in the plans and specifications, which are part of the Building Contract signed by the above parties. DATE: 03/04/2002 # Changes Price I Add concrete slab on grade - 172 s.f. at basement walkout $1,032.00 Total Contract to Date $285,195.55 Please sign and return Change Order by arch 18, 2002. r Now that construction has begun, payment must accompany this Change Order. Haubert Homes Representative Owner: Date: 3 7T? D flAUBIRT HOMES= Buildinq for Change Order No. 11 Page 1 of 1 Authority For Change in Sales Contract By Mutual Agreement Between Haubert Homes, Inc. (Camp Hill Office) Contractor And Daniel McCurdy Jr. Lot #: 115 Development: Beacon Hill The following changes, alterations, additions, or substitutions are to be made in work or materials called for in the plans and specifications, which are part of the Building Contract signed by the above parties. DATE: 04/24/2002 # Changes Price 1 Extra shelving and melamine shelving units $1,900.00 2 Pave approx. 25 s.f of area by garage walkout door $50.00 3 Add 2B stones from patio under deck past corner of steps $150.00 Total Contract to Date $287,295.55 Please sign and return Change Order by May 3, 2002. Now that construction has begun, navment must accomoanv this Chan¢e Order. 1 Haubert Homes Representative Owner: Date: 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 it FAX (717) 761-4125 CERTIFICATE OF SERVICE I, Donald M. Lewis III, Esquire, attorney for plaintiffs, hereby certify that I have served the foregoing paper upon counsel of record this date by depositing true and correct copies of the same in the United States mail, first-class postage prepaid, addressed as follows: Haubert Homes, Inc. c/o Jennifer A. Yankanich, Esquire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Kimberly M. Colonna, Esquire McNees Wallace & Nurick LLC 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 KEEFER WOOD ALLEN & RAHAL, LLP D ' al . Lewis III Dated: December 6, 2005 DANIEL D. McCURDY, 7R. and TRACY L. McCURDY, Plaintiffs VS. HAUBERT HOMES, INC. and TREX COMPANY, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5280 CIVIL TERM CIVIL ACTION - LAW AND NOW, comes Defendant, Haubert Homes, Inc. ("Haubert Homes"}, by and through its counsel, Mette, Evans & Woodside and hereby files this Answer with New Matter to Plaintiffs' Complaint, in support of which it avers as follows: 1. Admitted upon information and belief. 2. Admitted. Denied. The document identified in Paragraph 3 of Plaintiffs' Complaint is a written instrument and as such, speaks for itself. To the extent the averments set forth in paragraph 3 of Plaintiffs' Complaint mischaracterize, elaborate and/or misrepresent the contents of the referenced document or are inconsistent in any way with the contents of the writing, same are denied. 4. Admitted in part and denied in part. It is admitted only that closing occurred and Plaintiffs took possession of the property in May 2002. After due investigation, Haubert Homes is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment that Plaintiffs "moved in" as set forth in paragraph 4 of Plaintiffs' Complaint and therefore denies same with strict proof thereof demanded at the time of trial, if relevant. 5. Denied. The averments set forth in paragraph 5 are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. 6. Denied. The averments set forth in paragraph 6 are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. 7. Denied. The averments set forth in paragraph 7 are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. COUNTI Haubert Homes' responses to paragraphs 1 through 7 are incorporated herein by reference as if set forth in full. 9. Denied. The document referenced in Paragraph 9, including subparts a through d, of Plaintiffs' Complaint is a written instrument and as such, speaks for itself. To the extent the averments set forth in paragraph 9, including subparts a through d, of Plaintiffs' Complaint mischaracterize, elaborate and/or misrepresent the contents of the referenced document or are inconsistent in any way with the contents of the writing, same are denied. 10. Denied. The averments set forth in paragraph 10, including subparts a through d, are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. 11. Denied. The averments set forth in paragraph 11, including subparts a through k, are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. 12. Denied. The averments set forth in paragraph 12, including subparts a through d, are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. 13. Denied. The averments set forth in paragraph 13, including subparts a and b, are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. 14. Denied. The averments set forth in paragraph 14 are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. WHEREFORE, Defendant Haubert Homes, Inc. respectfully requests that this Honorable Court dismiss Plaintiffs' Complaint and enter judgment in favor of Defendant, together with such other and further relief as this Court deems just and appropriate. COUNT II 15. Haubert Homes' responses to paragraphs 1 through 14 are incorporated herein by reference as if set forth in frill. 16. Denied. The averments of paragraph 16, including subparts a through d, are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. By way of further response, the document referenced in paragraph 16 of Plaintiffs' Complaint is a written instrument and as such, speaks for itself. To the extent the averments set forth in paragraph 16 of Plaintiffs' Complaint mischaracterize, elaborate and/or misrepresent the contents of the referenced document or are inconsistent in any way with the contents of the writing, same are denied. 17. Denied. The averments set forth in paragraph 17 are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. By way of further response, Defendant incorporates herein its responses to paragraphs 11 and 12 of Plaintiffs' Complaint as though same were fully set forth. 18. Denied. The averments set forth in paragraph 18, are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. By way of further response, Defendant incorporates herein its response to paragraph 13 of Plaintiffs' Complaint as though same was fully set forth. 19. Denied. The averments set forth in paragraph 19 are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. WHEREFORE, Defendant Haubert Homes, Inc. respectfully requests that this Honorable Court dismiss Plaintiffs' Complaint and enter judgment in favor of Defendant, together with such other and further relief as this Court deems just and appropriate. COUNT III 20. Haubert Homes' responses to paragraphs 1 through 19 are incorporated herein by reference as if set forth in full. 21. Denied. The averments set forth in paragraph 21 are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. 22, Denied. The averments set forth in paragraph 22 are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. 23. Denied. The averments set forth in paragraph 23 are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. 24. Denied. The averments set forth in paragraph 24 are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. 25. Denied. The averments set forth in paragraph 25, including subparts a through e, are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. 26. Denied. The averments set forth in paragraph 26 are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. By way of further response, Defendant incorporates herein its response to paragraph 13 as though same was fully set forth. 27. Denied. The averments set forth in paragraph 27 are conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, said averments are denied. WHEREFORE, Defendant Haubert Homes, Inc. respectfully requests that this Honorable Court dismiss Plaintiffs' Complaint and enter judgment in favor of Defendant Haubert Homes, Inc. together with such other and further relief as this Court deems just and appropriate. NEW MATTER 28. The foregoing responses to the Complaint are incorporated herein by reference and re-alleged as a defense. 29. The Complaint fails to state a claim upon which relief may be granted. 30. Defendant acted appropriately, lawfully and in good faith at all times. 31. Defendant did not breach any duties owed to the Plaintiffs. 32. Plaintiffs' causes of action may be barred in whole or in part by the Doctrine of Waiver and/or Estoppel. Plaintiffs have waived any claims they have against the Defendant. 33. Plaintiffs' action against Defendant is barred by the doctrine of unclean hands. 34. If the Plaintiffs sustained the damages alleged in the Complaint, which potential finding is hereby expressly denied, then such claims are prohibited and/or barred and/or reduced pursuant to and by virtue of the doctrine of contributory or comparative negligence, as the case may be, and/or the doctrine of assumption of the risk, such as may be determined during discovery and trial of this action. 35. If Plaintiffs have suffered any damages, which potential finding is hereby expressly denied, then it is believed that there was an intervening cause or causes leading to said damages and, as such, any action on the part of the Defendant was not the proximate and/or competent producing cause of Plaintiffs' damages. 36. Plaintiffs' claims may be barred in whole or in part by any and all applicable Statutes of Limitation. 37. Plaintiffs' claims are barred and/or limited by Plaintiffs' failure to mitigate their alleged damages. 38. Plaintiffs' claims are barred and/or limited by the operation of the doctrine of payment and acceptance of Defendant's work. 39. Plaintiffs' claims are barred and/or limited by the terms of the applicable contracts between the parties. 40. Plaintiffs' claims are barred and/or limited as Defendant neither gave nor breached any express or implied warranties. 41. If it is established at the time of trial that plaintiffs are entitled to recover any damages as alleged in their Complaint, which damages are strictly denied, then said damages were not legally caused by any acts, actions or omissions on the part of Defendant, but were caused by the acts, actions or omissions of entities or individuals over which the Defendant had no control or right to control or legal duty to control. 42. Any acts or omissions of Defendant which potential finding is hereby expressly denied, were not a proximate cause of any losses or damages allegedly sustained by Plaintiffs. 43. Plaintiffs have failed to allege any claims and/or supporting facts which would entitle them to an award of treble damages, compensatory damages, attorneys' fees or costs. 44. Plaintiffs' causes of action may be barred in whole or in part by the Doctrine of Accord and Satisfaction. 45. Plaintiffs' claims are barred by the Doctrine of Laches. 46. Plaintiffs' claims for recoverable damages are contrary to the law of the Commonwealth of Pennsylvania. WHEREFORE, Defendant Haubert Homes, Inc. respectfully requests that this Honorable Court dismiss Plaintiffs' Complaint and enter judgment in favor of Defendant Haubert Homes, Inc. together with such other and further relief as this Court deems just and appropriate. Respectfully submitted, METTE, EVANS & WOODSIDE By: Sup. 340rNorth Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendant, Haubert Homes, Inc. Date: June 30, 2006 VERIFICATION I, JENNIFER A. YANKANICH, ESQUIRE, counsel for Haubert Homes, Inc., hereby verify that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. I base my knowledge, information, and belief solely upon the information provided by my client, Haubert Homes, Inc. I have been authorized to make this verification on Defendant's behalf. Defendant's Verification will be substituted with the Court upon receipt of same. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904, relating to unworn falsification to authorities. DATE: June 30, 2006 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing Answer with New Matter upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Donald M. Lewis, III, Esquire Keefer Wood Allen & Rahal, LLP 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorneys for Plaintiff Kimberly M. Colonna, Esquire McNees Wallace & Nurick, LLC P.O. Box 1166 Harrisburg, PA 17108 Attorneys for Defendant, Trex Company, Inc. METTE, EVANS & WOODSIDE By. Jenri A. Y ' canich, uire S . .I.D. to. 8420 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Haubert Homes, Inc. DATE: June 30, 2006 451815vi r_, t, -;, ? 4_, - . -1,n ,"? _ _, 7 -?: DANIEL D. MCCURDY, JR. and TRACY L. MCCURDY, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION V. HAUBERT HOMES, INC. AND TREX Jury Trial Demanded COMPANY, INC. No. 05-5280 Civil Defendants PLAINTIFFS' REPLY TO NEW MATTER ASSERTED BY DEFENDANT HAUBERT HOMES. INC. NOW COME plaintiffs, by their counsel, Keefer Wood Allen & Rahal, LLP, to reply to the new matter asserted by defendant Haubert Homes, Inc., in response to plaintiffs' complaint, averring as follows: 28. In response to the incorporated averments of defendant's answer, plaintiffs incorporate here by reference the. averments of paragraphs 1 through 27 of their complaint, as if fully restated. 29. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. 30. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. 31. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. 32. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. 33. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. 34. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. 35. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. 36. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. 37. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. 38. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. 39. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. 40. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. 41. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. 42. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. 43. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. -2- 44. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. 45. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. 46. Denied. The averments of this paragraph constitute a legal conclusion with which plaintiffs disagree. WHEREFORE, Plaintiffs Daniel D. McCurdy, Jr., and Tracy L. McCurdy hereby demand judgment in their favor, and against Haubert Homes, Inc., in an amount that exceeds the limit for mandatory arbitration in Cumberland County, plus treble damages, costs of suit, including reasonable attorneys' fees, and interest. Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Dated: July 17, 2006 By D ewis III 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 717-255-8038 Attorneys for plaintiffs -3- VERIFICATION The undersigned, Daniel D. McCurdy, Jr., and Tracy L. McCurdy, hereby verify and state that: 1. They are the plaintiffs herein; 2. The facts set forth in the foregoing reply to new matter are true and correct to the best of their knowledge, information, and belief; and They are aware that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unworn falsification to authorities. Daniel D. McCurd -&ir Tracy L. McCurdy Dated: July 1/ 2006 CERTIFICATE OF SERVICE I, Donald M. Lewis III, Esquire, attorney for plaintiffs, hereby certify that I have this date served the foregoing paper upon counsel of record by depositing true and correct copies of the same in the United States mail, first-class postage prepaid, addressed as follows: Jennifer A. Yankanich, Esquire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Kimberly M. Colonna, Esquire McNees Wallace & Nurick LLC 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 KEEFER WOOD ALLEN & RAHAL, LLP By D ewis III Dated: July 1' , 2006 PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the following case: [ 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.) [X ] Civil Action - Law [ ] Appeal from arbitration [ ] (other) DANIEL D. MCCURDY, JR. and TRACY L. MCCURDY, The trial list will be called on 5/27/08 Plaintiffs and vs. HAUBERT HOMES, INC. and TREX COMPANY, INC. Trials commence on 6/23/08 Pretrials will be held on 6/4/08 (Briefs are due 5 days before pretrials.) Defendants No. 05-5280 Civil Term Indicate the attorney who will try case for the party who files this praecipe: Donald M. Lewis III, Esquire Keefer Wood Allen & Rahal LLP 210 Walnut Street P. O. Box 11963, Harrisburg PA 17108-1963 Indicate trial counsel for other parties if known: Jennifer A. Yankanich Esquire Mette Evans & Woodside 3401 North Front Street, P.O. Box 5950, Harrisburg, PA 17110-0950 for Haubert Homes Inc. This case is ready for trial. Signed: Print N kme?Donald M. Lewis III Date: May 1, 2008 Attorney for: Plaintiffs vO? d _ t t I A #20 DANIEL D. MCCURDY, JR. and IN THE COURT OF COMMON PLEAS OF TRACY L. MCCURDY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs C) c=i v. CIVIL ACTION - LAW C °D _V VT HAUBERT HOMES, INC. and TREX COMPANY, INC., '-? Defendants NO. 05-5280 CIVIL TERM ci,7<t ci. PRETRIAL CONFERENCE 3C C' ?? --1 A pretrial conference was held in the chambersn of Judge Oler in the above-captioned case on June 4, 2008. Present on behalf of the Plaintiffs was Donald M. Lewis, III, Esquire. Present on behalf of Defendant Halbert Homes, Inc., was Ronald L. Finck, Esquire. No counsel appeared on behalf of Defendant, the Trex Company. This action is for breach of contract, breach of express and implied warranties, and violation of the Unfair Trade Practices of Consumer Protection Law arising out of the allegedly poor construction of Plaintiff's home by Defendant Halbert Homes, Inc. By separate order of Court and pursuant to an agreement of Plaintiffs and Defendant Halbert Homes, Inc., Defendant Trex Company, Inc., will be dismissed from the case. This will be a jury trial in which each Defendant will have four peremptory challenges for a total of eight. The estimated duration of trial is two days. To the extent that any deposition testimony containing objections being pursued by counsel is to be shown or read to the jury, counsel are requested to submit to the Court at least fire days prior to commencement of trial a copy of the affected transcripts with the areas of objection being pursued highlighted and with brief memoranda in support of their respective positions It on the objections. One issue in this case which may arise involves the admissibility of expert testimony by Don Haubert, president of Defendant Haubert Homes, Inc., the objection to his testimony as an expert being based upon a failure to timely disclose that status. Counsel have indicated that they may be able to resolve this issue pursuant to an agreement as to expert testimony on the part of one of Plaintiffs' witnesses; to the extent that they are not able to resolve the issue, it is requested that a motion in limine be filed for disposition of the issue by the trial court at least five days prior to the commencement of the trial. With respect to settlement negotiations, it appears that the parties are engaging in some such negotiations and that there is a possibility of settlement in the case. By the Court, Donald M. Lewis, III, Esquir, 210 Walnut Street P.O. Box 11963 Harrisburg, PA 11963 For the Plaintiffs Ronald L. Finck, Esquire 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 For Defendant Haubert Homes, Inc. Kimberly M. Colonna, Esquire P.O. Box 1166 Harrisburg, PA 17108 For Defendant Trex Company, Inc. Court Admin Prothonotary pcb DANIEL D. MCCURDY, JR. and TRACY L. MCCURDY, Plaintiffs V. HAUBERT HOMES, INC. and TREX COMPANY, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-5280 CIVIL TERM ORDER OF COURT AND NOW, this 4th day of June, 2008, pursuant to an agreement reached by counsel for the Plaintiffs, Daniel D. McCurdy and Tracy L. McCurdy, and counsel for Defendant, Haubert Homes, Inc., Defendant Trex Company, Inc., is hereby dismissed from this case. By the Court, 1J: Wesley er, Jr., J. Donald M. Lewis, III, Esquire 210 Walnut Street s P.O. Box 11963 Harrisburg, PA 11963 For the Plaintiffs Ronald L. Finck, Esquire 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 For Defendant Haubert Homes, Inc. Kimberly M. Colonna, Esquire m P.O. Box 1166 i -am rr; c._ C= Harr sburg, PA 17108 For Defendant Trex Company, Inc. cn Court Admin 0 Prothonotary ?.°C7 rv orn pcb rn A r DANIEL D. MCCURDY, JR. and IN THE COURT OF COMMON PLEAS TRACY L. MCCURDY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION V. HAUBERT HOMES, INC. : No. 05-5280 Civil TO THE PROTHONOTARY, Curtis R. Long: Please mark the docket ? o reflect that the above-referenced action has been settled and discontinued as against Haubert Homes, Inc., with prejudice.' Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Dated: July 10, 2008 By f121 wis III Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 717-255-8038 Attorneys for plaintiffs '/ Trex Company, Inc. + as dismissed by order of Court dated June 4, 2008. ? Y I, Donald M. Lewis III, have served the foregoing copy of the same in the United ire, one of the attorneys for plaintiffs, hereby certify that I upon counsel of record this date by depositing a true and correct mail, first-class postage prepaid, addressed as follows: iald L. Finck, Esquire te, Evans & Woodside 1 North Front Street 0. Box 5950 arrisburg, PA 17110-0950 KEEFER WOOD ALLEN & RAHAL, LLP By Lewis III Dated: July 10, 2008 t7 Y ^a o O ? « r r - rTi Kr ?11 co