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HomeMy WebLinkAbout06-1247 RONALD DONOVAN and CHERYL F. DONOVAN, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs No: 2006 - /J.1.J7 CIVIL TERM CIVIL ACTION - LA W vs. A'BELLA STONE, L.L.p., JURY TRIAL DEMANDED Defendant NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with a 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 LA WYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 25 South Bedford Street Carlisle, P A 170 I 3 (717) 249-3166 SNELBAKER, BRENNEMAN & SPARE, P.c. RY~ Atto ys for Plaintiffs LAW OFFICES SNELBAKER & BRENNEMAN. P.C. Date: March 6, 2006 RONALD DONOVAN and CHERYL F. DONOVAN, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. No: 2006 - l;)lf1 CIVIL TERM CIVIL ACTION - LA W A'BELLA STONE, L.L.P., JURY TRIAL DEMANDED Defendant COMPLAINT AND NOW, come the Plaintiffs, Ronald Donovan and Cheryl F. Donovan, by their attorneys, Snelbaker & Brenneman, P.c., and aver the following causes of action: I. The Plaintiffs are RONALD DONOVAN and CHERYL F. DONOVAN, husband and wife, adult individuals, who reside at 305 Bulls Head Road, North Newton Township, I (Newville, 17241), Cumberland County, Pennsylvania. 2. The Defendant is A'BELLA STONE, L.L.P., a limited liability partnership, having a place of business at 103 Brim Boulevard, Chambersburg, Franklin County, Pennsylvania. 3. Plaintiffs are the owners of a dwelling house located at 305 Bulls Head Road, North Newton Township, Cumberland County, Pennsylvania. 4. Defendant is in the business of manufacturing, marketing and installing residential granite stone kitchen countertops and conducts business in Cumberland County, Pennsylvania. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 5. Commencing in 2004, Plaintiffs embarked on a project to renovate the kitchen at their residence, including the replacement of the top of existing cabinetry in the kitchen. 6. On or about October 21, 2004, Plaintiffs solicited Defendant to provide a granite top for their kitchen cabinetry. Defendant required Plaintiffs to select granite material in slab form located at its supplier's warehouse in the Baltimore, Maryland area. 7. On or about August 22, 2005, Plaintiffs visited the supplier's facility in Maryland and selected slab granite material. 8. On or about August 22, 2005, the parties negotiated the following transaction: a. Defendant agreed to manufacture and install the required granite kitchen cabinet top from the slab material selected by Plaintiffs. b. Said top to be installed in sections of stone of uniform color, shade, pattern and design. c. Said top to be manufactured to fit the existing kitchen cabinet based upon template measurements to be made by Defendant. d. Plaintiffs would be given the opportunity to inspect the stone material before installation. e. Plaintiffs were to remove the then existing cabinet top. f. Defendant's work would be performed in a good and workmanlike manner. g. Plaintiffs agreed to pay the swn of$3,948.00 for Defendant's materials and work. 9. On or about August 22, 2005, Plaintiffs paid to Defendant the sum of $2,481.50 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. on account of the total price aforesaid and agreed to pay the balance at time of installation of the top. 2 10. On or about September 6, 2005, Defendant's representatives visited Plaintiffs' residence and made measurements of the proposed cabinet top, at which time Plaintiffs understood that the top would be composed of three (3) adjoining pieces of granite. Defendant did not make a template of the existing counter and abutting structures. II. Plaintiffs removed the then existing countertop and otherwise prepared the site for installation of the new countertop. 12. Defendant never invited nor advised Plaintiffs to inspect the materials at its place of business as originally promised. 13. Defendant fabricated the countertop in three (3) contiguous pieces of stone. 14. On or about September 16, 2005, Defendant delivered the countertop pieces and proceeded to install two of the three pieces, one being the section containing the stove top ("# I ") and the other being the adjoining center section containing the sink ("#2"). Plaintiffs rejected the I top because piece # I contained a defect on the face edge. Defendant agreed to eliminate the defect and removed both pieces and departed. 15. On or about October 4, 2005, Defendant again delivered the countertop pieces and proceeded to install two of the three pieces, being # I and #2 as described in paragraph 14 above. Plaintiffs rejected the top because the defective piece aforesaid (#1) had been trimmed in such fashion as to no longer fit the intended place of installation. Defendant agreed to remedy the problem and removed both pieces and departed. 16. On the occasions averred in paragraphs 14 and 15, Defendant did not bring the LAW OFFICES SNELBAKER & BRENNEMAN, P,c. third piece into Plaintiffs' residence and did not exhibit it with the other two pieces. Plaintiffs did not see the third piece on either occasion. 3 17. On October 6, 2005, Plaintiffs noted weather predictions for heavy rain on October 7, 2005, the date previously established by Defendant for delivery and installation of the countertop, and contacted Defendant's place of business out of concern for water damage to the recently installed new Pergo flooring in the kitchen. Defendant rejected Plaintiffs' request to defer delivery until after the passage of the rain. 18. On October 7, 2005, during an all-day heavy rain, Defendant again delivered various pieces of granite countertop, said pieces having been transported on an open bed truck unprotected from drenching rain. 19. Because the pieces of granite were soaked by the rain, their true colors, shades. patterns and designs were obscured. 20. Upon delivery of the pieces of granite, Plaintiffs were informed for the first and only time that piece # 1 was replaced and was made from another piece of stone and not simply a redimensioning of the original piece. 21. Defendant's representatives installed the granite pieces while still wet, and advised Plaintiffs that the true color, shade and overall appearance would not be ascertainable for at least 24 to 36 hours until the stone would be dry. 22. The granite pieces were so wet that Defendant's workmen borrowed Plaintiffs' butane torch in an effort to dry the places of joinder of the stone segments for the installation of epoxy or other filler/adhesive material. 23. Defendant installed a metal sink in piece #2 with brackets affixed to the underside LAW OFFICES SNELBAKER & BRENNEMAN, P.C. of said piece, said brackets being attached to the wet stone by an adhesive. Defendant's workmen did not attempt to dry the stone with Plaintiffs' torch or by any other means. 4 24. Upon completion of the installation, Defendant's representatives presented to Plaintiffs Defendant's bill for the balance due in the amount of$1 ,466.50 and demanded payment in cash (currency), which Plaintiffs paid. 25. During the nighttime hours of the night of Friday, October 7, 2005 or early morning of Saturday, October 8, 2005, the adhesive attaching the sink support brackets failed, causing the sink to fall from the stone top. The metal sink had not been connected to the plumbing system. As a result of the falling metal sink, a lever valve on an existing water pipe was knocked open, causing water under pressure for several hours to flood a substantial portion of the first floor and basement of Plaintiffs' house. 26. On or about Sunday, October 9,2005, and only after the stone had dried, Plaintiffs for the first time noticed that none of the three pieces matched as to color, shade, ,I P"ff' ,.d "'"i", wi<h <he ffpllffme" piff' mIT,d i, ","",,,ph 19 ,bo" (riff' ff1) boi" <he most different in color, shade, pattern and design. 27. Plaintiffs further determined that a section of the top (piece #1) did not abut an adjoining vertical cabinet, and the remaining two sections did not abut the adjoining kitchen wall along the back or long side of the countertop, in both instances leaving unsightly gaps between cabinet and wall. 28. On Monday, October 10,2005, Plaintiffs made prompt complaint of the foregoing conditions as averred in paragraphs 26 and 27 to Defendant, and on the same day, Defendant rebuffed Plaintiffs' concerns and rejected their complaints. LAW OFFICES 29. Subsequent to the foregoing events, Plaintiffs discovered that the joints between SNELBAKER & BRENNEMAN. P.c. the three pieces of stone were not level, causing extreme lippage, said joints having been fillcd and obscured by epoxy or other adhesive, 5 30. The countertop was never used by the Plaintiffs because the house, including the kitchen, was under renovation and not occupied, and further because the countertop was wholly unsatisfactory and unacceptable. 31. On or about December 30, 2005, the joint epoxy or other adhesive failed, resulting in the chipping of the stone material resulting in permanent damage at the joints and Icreating an open void between adjoining pieces. I 32. Upon Plaintiffs' subsequent complaint and expression of dissatisfaction and upon I demand for removal ofthe countertop, Defendant contended that the unevenness or lippage of the adjoining stone segments "typically occurs with a new home or addition, who's [sic] I foundation has settled over time. . .". 33. Plaintiffs' house, including the kitchen, was constructed during 1979 and 1980, I thereby obviating the foregoing "settlement" explanation between installation on October 7, II [2005 and the discovery of the condition within the period ending December 30, 2005. I 34. Plaintiffs have demanded that Defendant remove the granite countertop and I refund to them the purchase price ($3,948.00), which Defendant has refused to do. COUNT I - BREACH OF CONTRACT 35. The foregoing averments in Paragraphs I through 34 are incorporated herein by reference thereto as though set forth in full. 36. The countertop does not comply with the parties' contract in that: LAW OFFICES SNELBAKER & BRENNEMAN, P.c. a. The countertop does not fit the existing cabinetry and adjoining structures i.e. walls and cabinet. 6 b. The top of said countertop is not level and contains unacceptable lippage between the several pieces of granite. c. The several segments are not properly joined with epoxy or other adhesive/filler. d. The metal sink has not been attached securely to the countertop. e. The component pieces of granite are not uniform in color, shade, pattern and design. I I I I I ! the parties' agreement. I i I 38. 1$3,948.00 I , I 39. Plaintiffs have demanded Defendant to remove the countertop and refund to them II the sum of $3,948.00 which Defendant has failed and refused to do. I I , f. Defendant's work was not performed in a good and workmanlike manner. 37. Defendant has failed to manufacture and install a countertop in accordance with Plaintiffs have sustained damages in the amount of the purchase price to wit: WHEREFORE, Plaintiffs demand judgment against Defendant for the sum of $3,948.00 with interest and the costs of this action. COUNT II - BREACH OF EXPRESS WARRANTY 40. The foregoing averments in paragraphs I through 34 are incorporate herein by reference thereto as though set forth in full. 41. Defendant has represented to Plaintiffs that it has a "workmanship guarantee" LAW OFFICES SNELBAKER & BRENNEMAN, P.C. against "workmanship defects". 7 42. Defendant has breached its "workmanship guarantee" in that a. It failed to properly match adjoining segments of the granite countertop with respect to color, shade, pattern and design. b. It failed to fit properly the countertop to existing cabinetry and adjoining structures, i.e. walls and cabinet. c. It failed to install a level countertop, by installing adjoining segments of granite with unacceptable lippage. d. It failed to install properly the metal sink. e. It failed to install properly epoxy or other adhesive/filler in the joints between contiguous pieces of granite. 43. Because of Defendant's breaches as stated above, the countertop is unsatisfactory, unacceptable and, therefore, unusable. I I 44. Plaintiffs have sustained damages in the amount of the purchase price, to wit: 1$3,948.00. 45. Plaintiffs have demanded Defendant to remove the countertop and refund to them the sum of$3,948.00, which Defendant has failed and refused to do. WHEREFORE, Plaintiffs demand judgment against Defendant for the sum of $3,948.00 with interest and the costs of this action. COUNT III - BREACH OF IMPLIED WARRANTY 46. The foregoing averments in paragraphs I through 34 are incorporated herein by LAW OFFICES SNELBAKER & BRENNEMAN, P.c. reference thereto as though set forth in full. 47. Implicit in the parties' contract is the warranty that Defendant would perform its work in a good and workmanlike manner and in accordance with industry standards. 8 48. Defendant breached such warranty in that: a. It failed to properly match adjoining segments of the granite countertop with respect to color, shade, pattern and design. b. It failed to fit properly the countertop to existing cabinetry and adjoining structures, i.e. walls and cabinet. c. It failed to install a level countertop, by installing adjoining segments of granite with unacceptable lippage. d. It failed to install properly the metal sink. e. It failed to install properly epoxy or other adhesive/filler in the joints between contiguous pieces of granite. 49. Because of Defendant's breaches as stated above, the countertop is unsatisfactory, unacceptable and, therefore, unusable. 50. Plaintiffs have sustained damages in the amount of the purchase price, to wit: 51. Plaintiffs have demanded Defendant to remove the countertop and refund to them the sum 01'$3,948.00, which Defendant has failed and refused to do. WHEREFORE, Plaintiffs demand judgment against Defendant for the sum 01'$3,948.00 with interest and the costs of this action. COUNT IV - PRIVATE ACTION UNDER UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 52. The foregoing averments in paragraphs I through 34 are incorporated herein by reference thereto. 9 53. Plaintiffs purchased the granite countertop from Defendant for family and household purposes. 54. Defendant violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law (73 P.S. 9201-1 et seq.) in that: a. Defendant intentionally and fraudulently substituted unsatisfactory granite material without Plaintiffs' knowledge or consent when it remanufactured one of the three pieces as averred in paragraph 20 hereinabove. b. Defendant intentionally and fraudulently permitted the granite pieces to be soaked by rain as averred in paragraphs 17 and 18 hereinabove, thereby obscuring the color, shade, pattern and design of the pieces of stone so as to deceive Plaintiffs into I Ii I installed without knowing that the pieces did not match. ! believing that they had received matching pieces of granite. 55. Plaintiffs were in fact deceived by such obscuring in allowing the pieces to be 56. Plaintiffs were in fact deceived by such obscuring to the extent of making payment immediately upon installation to Defendant in cash (currency) as demanded by Defendant's representative. 57. As a result of Defendant's conduct, Plaintiffs suffered an ascertainable loss of money, to wit: $3,948.00 as the purchase price of the countertop, plus the costs and expense of pursuing this action, including, but not limited to, fees to their attorneys. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 10 WHEREFORE, pursuant to section 9.2 of the above cited law (73 P.S. 9201-9.2), Plaintiffs demand judgment against Defendant for: a. Treble actual damages (3 times $3,948.00) in the amount of $11 ,844.00, b. Plaintiffs' reasonable attorneys fees, and c. The expenses and costs of this action. The amounts claimed in this Complaint do not exceed the jurisdictional amount requiring arbitration referral pursuant to the rules of this Court. SNELBAKER & BRENNEMAN, P.C. By ~~ lchard C. Snelbaker, Esquire Attorney J.D. No. 06355 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Phone: (717) 697-8528 Attorneys for Plaintiffs. Dme: March 6, 2006 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. II LAW OFFICES SNELBAKER & BRENNEMAN. P.C. VERIFICATION I, RONALD DONOVAN, being one ofthe Plaintiffs in the foregoing Complaint, do ereby verify that the facts set forth therein within my personal knowledge are true and correct, nd as to any facts not within my personal knowledge, I believe them to be true and correct ased upon information received. I understand that any false statements herein are subject to the I penalties of 18 Pa C.S. 94909 relating to unsworn falsification to authorities. f2~dJ~l D~~~ . Ronald Donovan Dme: February 28, 2006 LAW OFFICES SNELBAKER & BRENNEMAN, P.c. VERIFICATION I, CHERYL F. DONOVAN, being one of the Plaintiffs in the foregoing Complaint, do ereby verify that the facts set forth therein within my personal knowledge are true and correct, and as to any facts not within my personal knowledge, I believe them to be true and correct based upon information received. I understand that any false statements herein are subject to the penalties of 18 Pa c.s. 94909 relating to unsworn falsification to authorities. f2~ ;;:))~ heryl F. Donovan ate: February 28, 2006 r"_" , .-'\ . .\ \-> ~ /L;) ~ 1- V( " If\ (. , --- - li\. ~ tv Q \.r( -t:. 0- -() --u ~ r ::D ~ ----------- LAW OFFICES SNElBAKER & BRENNEMAN, P,C. RONALD DONOVAN and CHERYL F. DONOVAN, Plaintiffs vs. A'BELLA STONE, L.L.P., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : No: 2006 - 1247 : CIVIL ACTION - LA W CIVIL TERM : JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE ACTION TO: Prothonotary of Cumberland County Please cause the record in the above-captioned action to be marked as discontinued, Dated: April c1~) 2006 By 'diard C. Snelbaker, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055-0318 (717) 697-8528 Attorneys for Plaintiffs :'i c' ~ .... SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2006-01247 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DONOVAN RONALD ET AL VS A'BELLA STONE LLP R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: A'BELLA STONE LLP but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of FRANKLIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE Sheriff's Costs: Docketing Out of County Surcharge Dep Franklin Co Postage 18.00 9.00 10.00 37.05 .78 74.83 04/19/2006 SNELBAKER BRENNEMAN ~~~~ R. Thomas Kline Sheriff of Cumberland County ~ ~ \ ...... 't' -z::. ...... On April 19th , 2006 , this office was in receipt of the attached return from FRANKLIN Sworn and subscribed to before me this /7t' day of fk; ,)oOr,. A.D. Prothonotary t' /'i _YJ .. In The Court of Common Pleas of Cumberland County, Pennsylvania Ronald Donovan et al VS. A'Bella Stone LLP No. 06-1247 civil Now, March 8. 2006. , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Franklin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. . r~~/~~ Sberiff of Cumberland County, PA Affidavit of Service Now, 3 /I fJA Ii.. , 20..frL, at /.ft' o'clock fJ M. served the ----- within i11 e-..... !, V> .. Cv7 ~, /.) ~~r .i/ upon be-I, J/ (<, ,Sa ~~ - /Ja._f\~'-U1t.e.1' of' Ilhe/ / /: ,~, @.. ALP I . at /~:JJSY'LM i3Lrd.) C.hCLh-rhe.rsiw_hj"" ~. by handing to De..Y1 n IS &l:e. <, a Uue cw..d cdt.'e.." ,-"",; and made !mown to h ~ copy of the original (' Lrl~/" ',.... 7 the contents thereof. So answers, () r\1/11."f pit": Le 0.(' -f~ I, ~~orn and subscribed before me this ~ day 0 ~:i- , COSTS SERVICE MILEAGE AFFIDAVIT $ ,20"~ $ 87,C) ~-