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HomeMy WebLinkAbout06-2532Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff STRICKLAND BROTHERS IN THE COURT OF COMMON PLEAS CONSTRUCTION, LLC, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. CI I fex- CRAIG SEIG, Defendant : CIVIL ACTION - LAW NOTICE TO PLEAD TO: Craig Seig, Defendant c/o John H. Pietrzak, Esquire REAGER & ADLER 2331 Market Street Camp Hill, PA 17011-4642 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 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 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 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Date: 5p k W. Allshouse, Es 're ttomey ID # 78014 833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Sherman Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. © 6 - ?, S--3 .2 ct,,, ( -{cn+ CIVIL ACTION - LAW COMPLAINT AND NOW, comes the Plaintiff, Strickland Brothers Construction, LLC, by and through its attorney, Mark W. Allshouse, Esquire and respectfully files the following Complaint and in support thereof avers as follows: 1. Plaintiff, Strickland Brothers Construction, LLC, is a Pennsylvania limited liability company having a business address of 623 Creek Road, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendant, Craig Seig, is an adult individual having a current address of 116 Winchester Garden Apartments, Carlisle, Cumberland County, Pennsylvania 17013. 3. On or about September 26, 2005, Plaintiff agreed to construct a residential home together with a garage on a private lot owned by Defendant located along Longs Gap Road, North Middleton Township, Cumberland County, Pennsylvania, and Defendant agreed to pay timely therefore pursuant to a construction loan obtained for the purpose of constructing the home through Commerce Bank (hereinafter "Agreement'). A true and correct copy of the Construction Agreement and loan documents evidencing said agreement are attached hereto and made a part hereof jointly as Exhibit "A". 4. Under the terms of the Agreement, Plaintiff was to construct a ranch home approximately two thousand one hundred (2100) square foot in size, together with a four hundred thirty-two (432) square foot garage with a total construction cost of Two Hundred Fifty-two Thousand Dollars ($252,000.00). 5. In addition, Defendant orally requested to be allowed to use his own excavator to excavate the property for the pouring of the foundation by Plaintiff. 6. As a result of delays by Defendant in completing the excavation work, Plaintiff was not able to pour the foundation walls and footers until November 3, 2005, nearly three (3) weeks behind schedule. 7. Thereafter, on or about January 26, 2006, Plaintiff received direction from Defendant's counsel terminating the construction contract and directing Plaintiff to perform no further work and to remove all tools and materials from the job site, citing delay as the reason for terminating the Agreement. COUNTI BREACH OF CONTRACT 8. Paragraphs 1 through 7 are hereby incorporated by reference as though full set forth herein. 9. Prior to Defendant's unilateral termination of the Agreement, Plaintiff performed all work required under the Agreement in a good and timely manner, with the exception of the Defendant's delay in excavation. 10. Defendant's unilateral termination of the Agreement constitutes default in the terms of the Agreement. z 11. Prior to Defendant's termination of the Agreement, Plaintiff incurred Sixty-eight Thousand Six and 76/100 Dollars ($68,006.76) in materials and labor in construction of the residence. 12. Prior to termination of the Agreement, Plaintiff received the first draw from Commerce Bank in the amount of Thirty-seven Thousand Five Hundred Dollars ($37,500.00). 13. As a result of Defendant's breach of the Agreement, Plaintiff continues to have out-of-pocket expenses in the amount of Thirty Thousand Five Hundred Six and 76/100 Dollars ($30,506.76) in outstanding costs and materials. 14. In addition, Plaintiff would have made approximately Thirty-five Thousand Dollars ($35,000) in profit had Defendant not breached the contract. 15. Plaintiffs total damages with costs and lost profits are Sixty-five Thousand Five Hundred Six and 76/100 Dollars ($65,506.76). WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant in the amount of $65,506.76 together with interest and other such relief as the court deems fair and just. COUNT II UNJUST ENRICHMENT 16. Paragraphs 1 through 15 are hereby incorporated by reference as though full set forth herein. 17. Plaintiff provided materials and labor to Defendant in good faith, and in reliance upon Defendant's promise to pay for those goods and services. 18. Plaintiff provided $30,506.76 in materials and labor in constructing the Defendant's home for which Defendant has refused to pay. 3 19. Defendant has unjustly retained the materials and labor for his personal use and benefit. 20. All materials and labor were of industry standard in quality and performed in a good and workmanlike manner. 21. Defendant has been unjustly enriched by the materials and labor received from Plaintiff for which he has not paid in the amount of $30.506.76. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant in the amount of ($30,506.76) together with interest and other such relief as the court deems fair and just. Respectfully submitted, Date:jp Marl W. Alishouse, Es 're Attokrney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff Exhibit "A" 04(25/2006 11:49 7172495463 STRICKLAND BROS CNST PAGE 04 STMCKLANDBROTHR.RSCONS'rRUCT1ON,! X Strickland Brothers Construction, X LC New Home Construction to be built on P-Nate lot on Longs Gap Road, North Middleton Township for Craig Sieg. Approx. 2100 sq. foot ranch w pith 432 sq. foot garage. 48' wide by 58' deep. 3 bedrooms/2 full baths. Design gpecifications and standards 9 foot poured concrete foundation walls TJI Truss Joist silent floor system 2x6 exterior construction with %z" plywood sheeting R-21 insulated rating on house walls Electric will be according to municipal cede. Aker tubs and showers to be selected by I;omebuyer. If ceramic tile tub surround is desired by home buyer, it will be included in floor covering allowance. Craig is going to rough-in all plumbing, IIVAC, and electric according to township codes and restrictions. 04/25/2006 11:49 7172495463 STRICKLAND EROS CNST PAGE 05 SMCKLAND SROt MRS CONS RUMON, LI.C Homeowner to choose plumbing fixtures, MW maintenance free vinyl double-hung windows Therma-tru steel entry doors Maintenance-free vinyl siding Elk 30-year architectural shingles Fridgidaire (with 10 year warranty) heat y ump with central air conditioning Electric hot water heater Seamless gutters and downspouts Total cost of construction: $252,000.00 Homebuyer will be responsible for maintuning all necessary insurance during.phase of construction. E omebuyer will be responsible for municipal sewer and water bills as well as electric utility costs during phase of construction. Thank you for choosing Strickland Broth -rs Construction, LLC. 04/25/2006 11:49 7172495463 STRICKLAND BROS CNST PAGE 06 SEP-23-2008 01036 PM ANDRHWS&JOHNSO.N 7172430041 P.02 aCr' d-"Ab 17,:35 P.W?m ADYANC88CtlBDp16 ~4W,wCrlt?NIzYfA jAwOAas4"Nrx NNrilsnuaIrme SrAGWARBIrIAIMTg&l1!8'd88i XUCM A"COA(!'Li6M AWANC"OI'PZ?NI18?'AYRitINLM71C08'AlAD1'?YJOWIVdiRAPA' J1AL 4=WAblCM,,R LA M FOIAOR97 MANNJM- ANVAIW" #Il09M11'!16NCOAV4tl`Pff MOMPROOM 02MO,l,BOTYUA AIA AOFA W OMIXBTAU" 0AMllGl BV WARM A rbllA NOW munwONWA wDAYR "AA% CAt M CWtBm J 37;SKIV A WOW" f3OM80 sa s01RS0 SI] OR40 rQT4M aA! CVA 0fi=. mr," CONMVC7W JW iSMON Us3 waft roR ow". BL in CMA Raw C rrm* A. 370ts CDAf MUi,n MORI CEA1 p4anow loan AVNM 'Oet?4 ML PO RMOM A flmt-oft TOTAL P,03 JRN-26-2006 16:35 GUARANT Prinoipel.. Lo r« Q WOO References the shaded area are for Lender's Borr0Wef: Craig E, Sell (SSN: 209-46-23481 116 Winchester Garden Apts Carlisle, PA 17013 P.02/04 ,? COMPLETION AND PERT )MANCE maw r. a only and do not limit the applicability of this document to any particular loan or item. ng has been omitted due to text length limitations. Lender: COMMERCE BANKIHARRISBURG N.A. RESIDENTIAL MORTGAGE 100 SENATE AVENUE CAMP HILL. PA 17011 (717) 975.51830 Guarantor: Strickland Brothers Construction, LLC 690 Creek Road Carlisle, PA 17013 THIS GUARANTY OF COMPLETION AND PERFORMANCE I"Guaranty") Is made as of September 26, 2005, by Strickland Brothers Construction LLC ('Guarantor") to and for the benefit of COMMERCE BANKIHARRISBURG N.A. ("Lender"). THE LOAN. Borrower proposes to borrow from Lender the principal amount of Two Hundred Fifty Thousand & 001100 Dollars (5250,000.00 pursuant to the terms and conditions of the Construction Loan Agreement. As a condition and inducement to making the Loan, Borrower hill requested that Guarantor. duly execute and deliver this Guaranty guaranteeing the lien-free completion of the construction of the Project ano the performance of other covenants, which are all considered by Lender to be material regarding Lender's decision to make the Loan. GUARANTY. Guarantor hereby unconditionally and absolutely warrants and guarantees to Lender that: (a) construction of the Project snail as commenced and shall be substantially completed within the time limits set forth in the Construction Loan Agreement; (b) the Project snail oe constructed and completed in accordance with the Loan Documents and the Plans and Specifications, without substantial deviation therefrom unless approved by Lender in writing; (c) except for Lender's security agreements, the Project will be constructed and completed tree and Clear of all liens and encumbrances, including without limitation all mechanics' liens, materialmen's liens, and equitable liens: and (d) as costs c constructing the Project will be paid when due, and no stop notices shell be served on Lender. OBLIGATIONS OF GUARANTOR UPON EVENT OF DEFAULT, Should an Event of Default (as defined in any Construction Loan Agreement occur or it the Project shall not be constructed and completed as provided above, Guarantor shall: (a) diligently proceed to cure such defaut and procure completion of the Project at Guarantor's sole cost and expense; fb) fully pay and discharge all claims for labor performed anc material and services furnished in connection with the construction of the Project; and Ic) pay such amounts as may be necessary to release and discharge all claims of stop notices, mechanics' liens, materialmen's liens, and equitable liens, if any, that may come into existence connection with the construction of the Project. NATURE OF GUARANTY. This Guaranty is an original and independent obligation of Guarantor, separate and distinct from Borrower s ooligations to Lender under the Loan Documents. The obligations of Guarantor 10 Lender under this Guaranty are direct and primary, regardless o! The validity or enforceability of the Loan Documents. This Guaranty is for the benefit of Lentler, and is not for the benefit of any third par:, This Guaranty shall continue until (A) the Project has been completed, free and clear of all liens and encumbrances as provided above, anc _ all obligations of Guarantor to Lender under this Guaranty have been performed in full. GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, without notice or demand and without lessening Guarantor_ Ilabinty under this Guaranty, from time to time: la) to make or approve changes to the Plans and Specifications; to) to make modifications :- The Construction Loan Agreement and the other Loan Documents; (a) to make one or more additional secured or unsecured loans to Borrower lpl to repeatedly alter, compromise, renew, extend, accelerate. or otherwise change the time for payment or other terms of the Loan or anv oar' of the Loan, including increases and decreases of the rate of interest an the Loan; extensions may be repeated and may be for longer than line original loan term; (a) to take and hold security for the payment of the Loan or this Guaranty, and exchange, enforce, waive, and release an, such security, with Or without the substitution of new collateral; (1) to release, substitute, agree not to sue, or deal with any one or more - Borrower's sureties, endorsers, or other guarantors on any terms or in any manner Lender may choose; (g) to determine now, when, and wn2i application of payments and credits shall be made on the Loan; (h) to apply such security and direct the order or manner of sale merge' including without limitation, any nonjudicial sale permitted by the terms of the controlling security agreement or dead of trust, as Lender ..- Lender's discretion may determine; fit Sell the Loan Lender may sell, transfer or grant participations In all or any part of the Loan, and tn¢ Guaranty may be transferred in whole or in part to the purchaser.; and (j) to assign or transfer this Guaranty in whale or in part. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that: (a) no representations o agreements of any kind have been made to Guarantor which would limit or quality in any way the terms of this Guaranty; (b) this Guaranty executed at Borrower's request and not at the request of Lender to induce Lender to disburse the Loan to Borrower pursuant to the terms of the Loan Documents and that Lender would not make and disburse the Loan to Borrower pursuant to the Loan Documents were it not for m= execution and delivery of this Guaranty; (c) Guarantor has not and will not, without the prior written consent of Lender, sell, lease, assign. encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of Guarantor's assets, or any interest therein; (d) neither :n? execution nor the delivery of this Guaranty nor compliance with the terms hereof will conflict with or result in the breach of any law or statute will constitute a breach or default under any agreement or instrument to which Guarantor may be a party, or will result in the creation c imposition of any charge or lien upon any property or assets of Guarantor; (e) Lender has made no representation to Guarantor as te•me creditworthiness of Borrower; It) the most recent financial statements of Guarantor heretofore delivered to Lender are true and correct ?n a material respects and fairly present the financial condition of Guarantor as of the respective dates thereof, and no material adverse change pas nccurred in the financial condition of Guarantor sines the data of the most recent financial statements; and (g) Guarantor has establenec soequate moans of obtaining from Borrower on a continuing basis information regarding Borrower's financial condition. Guarantor agrees to KaeF adequately informed from such means at any facts, events, or circumstances which might in any way affect Guarantor's risks under "n.. Guaranty. and Guarantor further agrees that. absent a request for information, Lender shall have no obligation to disclose to Guarantor am information or documents acquired by Lender in the course of its relationship with Borrower. GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender: (A) to mesa an, presentment, protest, demand, or notice of any kind, including notice of any nonpayment of the Loan or of any nonpayment related to an, security agreement, or notice of any action or nonaction on the part of Borrower, Lender, any surety, endorser, or other guarantor in connecTicr with me Loan or in connection with tha creation of now Or additional loans or obligations; (6) to resort for payment or to proceed directly _r _, once against any person, including Borrower or any other guarantor; (G) 10 proceed directly againut Or exheuet any collateral hold ey ?anae Irom Borrower, any other guarantor, or any other person (DI to give notice of the terms, time, and place of any public or private sale Personal property security held by Lender from Borrower or to comply with any other applicable provisions of the Uniform Commercial Code. _ to pursue any other remedy within Lender's power; or ..M to commit any act or omission of any kind, or at any time, with respect TO any maac' 7RN-26-2006 16:36 p.03i04 GUARAN, OF COMPLETION AND PERFOI MCE Page 2 Loan No: 33332132 (Continued) - whatsoever. Guarantor also waives any and all rights or defenses arising by reason of: (A) any "one action" or 'anti-deficiency" law or any other law wrt or may prevent Lender from bringing any action, including a claim for deficiency, against Guarantor, before after s completion of any foreclosure action, either judicially or by exercise of a power of sale; (8) any election of remedies by Lander which destroys or otherwise adversely affects Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement, incluomg without limitation, any loss of rights Guarantor may Suffer by reason of any law limiting, qualifying, or discharging any Loan indebtedness; IC; any disability or other defense of Borrower, of any other guarantor, or of any other person, or by reason of the cessation of Borrower's liability from any cause whatsoever, other than payment in full in legal tender. of any Loan indebtedness; (D) any failure or invalidity of, or any dialect in, the Construction Loan Agreement or any other Loan Document; (E) any right to claim discharge of any Loan indebtedness on the oasis o' unjustified impairment of any collateral for any Loan indebtedness; or (F) any statute of limitations, it at any time any action or suit brought oy Lender against Guarantor is commenced there is outstanding Loan indebtedness of Borrower to Lender which is not barred by any applicable statute of limitations. If payment is made by Borrower, whether voluntarily of otherwise, or by any third party. on any Loan and tnereatter Lender is forced to remit the amount of that payment to Borrower's Trustee in bankruptcy or to any similar person under any federal or state bankruptcy law or law for the relief of debtors, the Loan shall be considered unpaid for the purpose of enforcement of this Guaranty. Guarantor further waives and agrees not to assert or claim at any Time any deductions to the amount guaranteed under this Guaranty for dm, claim of setoff, counterclaim, counter demand, recoupment, or similar right, whether such claim, demand, or right may be asserted Dv Ire Borrower, the Guarantor. or both, GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the waivers set forth above s made with Guarantor's full knowledge of Guarantor's significance and consequences and that, under the circumstances, the waivers are reasonable and not contrary to public policy or law. If any such waiver is determined to be contrary to any applicable law or public policy, sucr waiver shell be effective only To the extent permitted by law. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in as Guarantor's accounts with Lenaur (wnether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts Guarantor may open in the future, However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff woulo oe prohibited by law. Guarantor authorizes Lender, to the extant permitted by applicable law, to hold these funds if there is a default, and Lender may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty. RIGHTS AND REMEDIES. If Guarantor shall fail to perform promptly as provided in this Guaranty, Lender shall have the following rights ano remedies: Perform Welk. Lender, at its option, but without any obligation To do so, may proceed to perform on behalf of Guarantor any and all work on the Project and to pay any costs incurred in connection with the work. Guarantor, upon Lender's demand, shall promptly pay to Lender au such sums expended together with interest thereon at the interest rate set forth in the Note. Cure Defaults. Lender, at its option, but without any obligation to do so, may cure any defaults, including without limitation, paying ano unpaid bills and liens, including without limitation those for construction, labor, and materials. Guarantor, upon Lender's demand, shah promptly pay to Lender all such sums expended together with interest thereon at the interest rate set forth in the Note. Specific Performance. From time to time and without first requiring performance on the part of Borrower and withowl being requirec t: exhaust any security held by Lender for the Loan, to require Guarantorspecifically to perform Guarantor's obligations under this Guaranty. by action at law or in equity or both, and further, to collect in any such action, compensation for all loss, cost, damage, injury and expense sustained or incurred by Lender as a direct or indirect consequence of Borrower's or Guarantor's failure to perform, with interest thereon a: the interest rate set forth in the Note, Other Rights and Remedies, In addition, Lender shall have and may exercise any or all of the rights and remedies it may have available a: law, in equity, or otherwise. SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Loan, whether now existing or hereafter created, snai be superior to any claim mat Guarantor may now have or hereafter acquire against Borrower, whether or not Borrower becomes Insofyaw. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever, to any claim tna: Lender may now or hereafter have against Borrower. In the event of insolvency and consequent liquidation of the assets of Borrower, tnrougr bankruptcy, by an assignment for the benefit of creditors, by voluntary liquidation, or otherwise, the assets of Borrower applicable to :rte payment of the claims of both Lender and Guarantor shall be paid To Lender and shall be first applied by Lander to the Loan. Guarantor does hereby assign to Lender all claims which it may have of acquire against Borrower or against any assignee or trustee in bankruptcy of Borrower provided however, that such assignment shall be effective only for the purpose of assuring to Lender full payrnant in legal tender of the Loan. Lender so requests, any notes or credit agreements now or hereafter evidencing any debts or Obligations of Borrower to Guarantor snap De marked with a legend that the same are subject to this Guaranty and shall be delivered to Lender, Guarantor agrees, and Lender is nereb, authorized, in the name of Guarantor, from time to time to file financing statements and continuation statements and to execute documents arc to take such other actions as Lender deems necessary or appropriate to perfect, preserve and enforce its rights under this Guaranty. MISCELLANEOUS PROVISIONS, The following miscellaneous provisions are a part of this Guaranty: Amendments, What is written in this Guaranty is Guarantor's entire agreement with Lender concerning the matters covered ey tms Guaranty. To be effective, any change or amendment to this Guaranty must be in writing and must be signed by whoever will be bound Ur obligated by the change or amendment Anorneys' Fees; Expenses, Guarantor agrees to-pay all of Lender's costs and expenses, including Lender's attorneys' fees and Lender( legal expenses, incurred in connection with the enforcement of this Guaranty. Lender may hire or pay someone else to help enforce tn,s Guaranty. anti Guarantor shall pay the costs and expenses of such enforcement. Costs and expenses include Lender's attorneys' fees anc legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. Guarantor also $no,: pay all court costs, in addition to an other sums provided by law. This Guaranty also secures all of these amounts. Caption Headings. Caption headings in this Guaranty are for convenience purposes only and are not to be used to interpret or define Ina provisions of this Guaranty, Governing Law. This Guaranty, will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the Commonwealth of Pennsylvania without regard to its Conflicts of law provisions. This Guaranty has been accepted by Lender in the Commonwealth of Pannsylvanle. No Waiver by Lender. Guarantor under. Js Lender will not give up any of Lender's rights er this Guaranty unless Lender does so writing. The tact That Lender delays or omits to exercise any right will not mean that Lander fins given up that right. If Lender does agree JHN-Gb-20LIb 1b S'/ P. 04104 , r GUARA ) OF COMPLETION AND PERK ANCE Loan No: 33332132 (Continued) Page 3 in writing to give up one of Lender's rights, that does not mean Guarantor will not have to comply with the other provisions of this Guaranty. Guarantor also understands that if Lender does consent to a request, that does not mean that Guarantor will not have. to get Lender's consent again if the situation happens again. Guarantor further understands that just because Lander consents to one or more o: Guarantor's requests, that does not mean Lender will be required to consent to any of Guarantor's future requests. Guarantor waives presentment, demand for payment, protest, and notice of dishonor. Notices. Unless otherwise provided by applicable law, any notice required to be given under this Guaranty shall be given in writing, anc shall De effective when actually delivered, when actually received by telefoeslmile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mar postage prepaid, directed to the addresses shown near the beginning of this Guaranty. Any person may change his or her address to, notices under this Guaranty by giving formal written notice to the other person or persons, &pacifying that the purpose of the notice is to Change the person's address. For notice purposes, Guarantor agrees to keep Lender informed at all times of Guarantor's current address Unless otherwise provided by applicable law, if there is more than one Guarantor, any notice given by Lander to any Guarantor is deameo to be notice given to all Guarantors. It will be Guarantor's responsibility to tell the others of the notice from Lender. Interpretation. In all cases where there is more than one Guarantor, then all words used in this Guaranty in the singular shall be deemed s nave been used in the plural where the context and construction so require; and where there is more than one Guarantor named in tats Guaranty or when this Guaranty is executed by more than one , the words "Guarantor" shell mean all and any one or more of them Reference to the phrase "Guarantor" includes the heirs, successors, assigns, and transferees of each of them. Severibility. If a court finds that any provision of this Guaranty is not valid or should not be enforced, that fact by itself will not mean wa•'. The rest of this Guaranty will not be valid or enforced. Therefore, a court will enforce the rest of the provisions of this Guaranty even , provision of this Guaranty may be found to be invalid or unenforceable. Successor Interests. The terms or this Guaranty shall be binding upon Guarantor, and upon Guarantor's heirs, Personal reprasentanvas. successors, and assigns, and shall be enforceable by Lender and its successors and assigns. DEFINITIONS. The following words shall have the following meanings when used in this Guaranty; Borrower, The word "Borrower" means Craig E. Seig and includes all co-signers and eo makers signing the Note and all their successor= and assigns. Guarantor. The word "Guarantor" means everyone signing this Guaranty, including without limitation Strickland Brothers Construcno,• LLC. and in each case, any signer's successors. and assigns. Guaranty, The word "Guaranty" means the guaranty from guarantor, endorser, surety, or accommodation party to Lander, Incwmnc without limitation a guaranty of all or part of the Note. Lender. The word "Lender" means COMMERCE BANK/HARRISBURG N.A., its successors and assigns. The words "successors assigns" mean any person or company that acquires any interest in the Note. Loan. The word "Loan" means the loan made to Borrower under the Construction Loan Agreement and the Loan Documents as deeoh Dec below. Note. The word "Note" means the note or credit agreement dated September 26, 2005, in the principal amount of $250,000.00 cro- Craig E. Salg to Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of and substitutions far the note or credit agreement. Plans and Specifications. The words "Plans and Specifications" mean the plans and specifications for the Project which have Date- submitted to and initialed by Lender, ingather with such changes and additions as may be approved by Lender in writing. Project. The word "Project" means the construction, renovation, of other work on the improvaTnenis as set forth in the Plans an- Specifications. EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS GUARANTY TO LENDER, NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY IS DATED SEPTEMBER 26, 2006. THIS GUARANTY IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS GUARANTY IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW, GUARANTOR: STRICKLA ED), 0 RS O STRUCTION, LLC By (Seal) Guars tor r I k nd Brothers Construction, LLC LENDER: COM7ANKIHARRISRUIRG 7?n??/y N.A. o / h L( a (Seal) Authorizeq Signer -rE1npX0rwnlr ia,.w.ttw CUpr",."., rnrrraiM lrwr:.., ua. \Ipf. id+). ,, Ilgnl, llw".mar r,.ry,\M.vMpfrrpWlM\Gfrr\Ar[rl)IC r1l.nlrp MU TOTAL O.Ga 05103/2006 10:25 7175827476 MARK W ALLSHDUSE ESQ PAGE 03/03 Mark W. A1lahouse, EsTm A#m1Vy m # 78014 4833 Spdog Road Sher OM Aale, PA 17090 (717)5324006 Attomay for Ptakdff STRICKLAND BROTHERS : IN THE COURT OF COMMON PLEAS CONSTRUCTION, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. CRAIG SEIG, Defendant : CM ACTION - LAW We, M. Jdfi cy Strickland and Matthew G. Strickland, members of Strickland Brothers Construction, LLC, being authorized to do so, verify that the statements in the foregoing doamleat are true and correct to the best of our knowledge, information and belief under penalties of 18 Pa.C.S.A. Section 4904, relating W unswom falsification to authorities. Date: S 3-0& STRICKLAND BROTHERS CONSTRUCTION, LLC M. Date: 3;;? cv BY: Matthew G. Strickland, member Lei .. J o t cn F Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff a I M%-,AtLAly U t3KU 111EKS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 06-2532 Civil Term : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that a copy of the Complaint was served upon the Defendant, Craig Seig through Acceptance of Service signed by John H. Pietrzak, Esquire, attorney for Defendant on May 8, 2006. The Acceptance of Service is attached hereto and made a part hereof. Date: -5l10, PZkW. Allshous Esquire ID # 780 4 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiffs • ? a STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06 - 4 302+ C, t V 11 Term CIVIL ACTION - LAW ACCEPTANCE OF SERVICE I, John H. Pietrzak, Esquire, accept service of the Complaint on behalf of Craig Seig regarding the above-referenced action. Date: 40. Y b C)'00 Jo H. Pietrzak, Esquire AGER & ADLER 331 Market Street Camp Hill, PA 17011-4642 (717) 763-1383 C) rv v C, STRICKLAND BROTHERS : IN THE COURT OF COMMON PLEAS CONSTRUCTION, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CRAIG SEIG, Defendant CIVIL ACTION - LA NO. 06-2532 CIVIL NOTICE TO PLEAD To: Strickland Brothers Construction, LLC: YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN SPONSE TO. THE ENCLOSED NEW MATTER AND COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT Y BE ENTERED AGAINST YOU. Respectfully sub itted, REAGER & AD ER, P.C. Date: May 31, 2006 Attorney I.D. No 79538 Thomas O. Williams, Esquire Attorney I.D. No 67987 2331 Market Street Camp Hill, PA 17011-4642 Telephone: (717) 763-1383 Attorneys for REAGER & ADLER, P.C. BY: JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: JpietrzaW ReaeerAdlerPC.com BY: THOMAS O. WILLIAMS Attorney I.D. No. 67987 Email: TwilliamsCr)ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff IN THE COURT OF CUMBERLAND CC CIVIL ACTION - LA' v. CRAIG SEIG, Defendant NO. 06-2532 CIVIL Jury Trial Demanded DEFENDANT'S ANSWER WITH 1. Admitted. 2. Admitted. 3. Admitted in part; Denied in part. It is admitted that portions of the construction of Defendant's home. It is denied that entire construction. It is further denied that Plaintiff's Exhibit "A" constitutes an agreement between Plaintiff and Defendant or that document to Defendant. The document attached to Plaintiff's LION PLEAS PENNSYLVANIA to perform some to perform the to its complaint ever presented this as Exhibit "A" is a 1 writing that speaks for itself. By way of further answer, the reference its New Matter and Counterclaim, which follows. 4. Denied. It is denied that Plaintiff was to construct the Defendant agreed to pay Plaintiff $252,000.00. 5. Denied as stated. Excavation was never a part of the 6. Admitted in part; Denied in part. It is admitted that the footers until November 3, 2005. Plaintiff has not identified any indicating that Plaintiff would be entitled to begin pouring footers Plaintiff did not begin to pour the foundation walls until November of manpower. By way of further answer, the Defendant incorporates Matter and Counterclaim, which follows. 7. Admitted in part; denied in part. It is admitted that letter of termination to Plaintiff on or about January 26, 2006. The document that speaks for itself and has been attached hereto as a part Counterclaim, see paragraph 36. COUNT I - BREACH OF CONTRACT 8. No response necessary. 9. Denied as stated. It is denied that Defendant had any Plaintiff. It is denied that Defendant unilaterally terminated the performed all work in a good and timely manner. By way of further incorporates herein by reference its New Matter and Counterclaim, incorporates herein by ntire home or that aintiff's work. intiff did not begin to pour cument or agreement re November 3, 2005. 2005, due to its own lack erein by reference its New ?ndant's counsel sent a nmation letter is a f Defendant's agreement with or that Plaintiff the Defendant follows. 2 10. This paragraph contains a conclusion of law to which 0 response is required. To the extent that an answer is required, it is denied that Defendant contract as Plaintiff had abandoned the work site. It is further denied constituted default. 11. After reasonable investigation, the Defendant is information sufficient to form a belief as to the truth of the averments proof is demanded at trial. By way of further answer, the Defendant reference its New Matter and Counterclaim, which follows. 12. Admitted in part; Denied in part. It is denied that terminated the Defendant's actions knowledge or this paragraph. Strict herein by was any written agreement between Plaintiff and Defendant. It is admitted that Plaintiff received [the first draw from Commerce Bank in the amount of $37,500.00. 13. After reasonable investigation, the Defendant is information sufficient to form a belief as to the truth of the averments proof is demanded at trial. To the extent that further answer is Defendant breached the agreement. It is further denied that or any amount. By way of further answer, the Defendant New Matter and Counterclaim, which follows. 14. After reasonable investigation, the Defendant is information sufficient to form a belief as to the truth of the averments proof is demanded at trial. To the extent that further answer is would have made approximately $35,000.00 profit for its limited knowledge or paragraph. Strict it is denied that owes Plaintiff $30,506.76 by reference its knowledge or paragraph. Strict it is denied that Plaintiff : of work. By way of 3 further answer, the Defendant incorporates herein by reference its which follows. 15. After reasonable investigation, the Defendant is information sufficient to form a belief as to the truth of the averments proof is demanded at trial. By way of further answer, it is denied that $65,506.76 or any amount. COUNT II - UNJUST ENRICHMENT 16. No response required. 17. This paragraph contains a legal conclusion to which no the extent that this paragraph contains factual averments, such 18. After reasonable investigation, the Defendant is information sufficient to form a belief as to the truth of the averments proof is demanded at trial. By way of further answer, the Defendant reference its New Matter and Counterclaim, which follows. 19. This paragraph contains a legal conclusion to which no 20. Denied. It is denied that Plaintiff performed its work manner or that its work conformed to industry standard. 21. This paragraph contains a legal conclusion to which no the extent that a response is required, it is denied that the Defendant work performed by the Plaintiff. It is further denied that Defendant performed by the Plaintiff. Matter and Counterclaim, knowledge or this paragraph. Strict owes Plaintiff response is required. To is are denied. knowledge or f this paragraph. Strict ;orporates herein by response is required. a timely or workmanlike response is required. To s unjustly enriched by the not paid for the work 4 NEW MATTER 22. Defendant incorporates herein by reference the 21 above as if set forth fully herein. 23. The Plaintiff's claim is barred by the doctrines 24. The Plaintiffs claim is barred by the doctrine of 25. The Plaintiff s claim is barred by the doctrines of 26. The Plaintiff s complaint fails to state a cause granted. COUNTERCLAIM COUNT I - BREACH OF CO 27. Defendant incorporates herein by reference the 26 above as if set forth fully herein. 28. Defendant never entered into any written agreement 29. The document contained in Plaintiff s exhibit "A" a Plaintiff calls a "Construction Agreement" is not a written agreement Defendant. Plaintiff never presented this document to Defendant. 30. Plaintiff did present a different written estimate to not agree to have Plaintiff perform all of the work shown on the estim copy of the estimate that Plaintiff presented to Defendant is attached 1 31. Defendant and Plaintiff entered into an oral agreement perform only the following work: footers, foundation, backfill, deckir and roof shingles, for the estimated price of $90,000.00. ;s of paragraphs 1 through r and estoppel. and satisfaction. cation and/or payment. for which relief can be of paragraphs 1 through the Plaintiff. to its complaint that een the Plaintiff and but Defendant did A true and correct as Exhibit "A". Plaintiff agreed to framing, masonry, roof 5 32, Plaintiff agreed to have the house under roof by thel end of December 2005 and that the house would be completed by the end of March 33. Plaintiff set the roof trusses on January 20, 2006. The roof truss system collapsed on January 21, 2006, due to Plaintiff's deficient and/or defective 34. The Defendant rejected all work and materials used in connection with the roof truss system due to the deficient and/or defective work by Plaintiff. 35. Plaintiff abandoned the worksite on or around January 44, 2006, removing all of its materials and equipment. Plaintiff left the damaged, collapsed trus?es in place. 36. On or about January 26, 2006, Defendant issued a letterl of termination to Plaintiff, for reasons including untimely performance of work, deficient and/or defective work and abandonment of the work site. A true and correct copy of the January ?6, 2006 letter is attached hereto as Exhibit "B". 37. At the time Plaintiff abandoned the Project, Plaintiff hao completed the following work: footers, footer drains, foundation walls, sub floor, floor joists, e?terior walls and sheeting. 38. Plaintiff has been paid $37,500.00 from the first payme#t draw issued by Commerce Bank. 39. Under the oral agreement between Plaintiff and Defendant, Plaintiff had a duty to perform and complete its work in a timely and workmanlike manner. 40. Plaintiff breached this duty by failing to complete and p?rform its work in a timely and workmanlike manner and by abandoning the work site. 41. Plaintiff has failed to pay its subcontractors for work the project. materials expended on 6 42. As a result of Plaintiff's breach of the oral agreement, damages in the amount of $15,495.32 for payment of outstanding subcontractors, which Plaintiff failed to pay. 43. As a result of Plaintiff's breach of the oral agreement, costs in the amount of $2,164.50 to have another contractor perform failed to perform. 44. As a result of Plaintiff's breach of the oral agreement, costs in the amount of $12,153.75 to have another contractor pour the 45. As a result of Plaintiffs breach of the oral agreement, damages in the amount of $16,284.00 to have another contractor provide the materials and labor to set new trusses. 46. As a result of Plaintiff s breach of the oral agreement, damages in the amount of $30,291.00 to have other contractors including materials and labor for roof shingles, siding and masonry 47. Defendant has incurred further damages in the amount Plaintiff s deficient or defective work. 48. As a result of Plaintiff s breach of the oral agreement, completed by the end of March 2006, resulting in Plaintiff losing the 49. Defendant will incur damages with a present value in having to close at a higher interest rate. 50. Plaintiff further owes the Defendant a credit in the incurred to Plaintiff's has incurred work that Plaintiff has incurred foundation. has incurred the damaged trusses and has incurred Plaintiff s work, $5,285.28 to correct house was not financing rate. of $10,000.00 due to of $6,217.00 from the first payment draw issued by Commerce Bank to Plaintiff. 51. As of the date of filing, the home is not finished and D fondant continues to uncover deficient or defective work performed by the Plaintiff. Defen t reserves the right to amend its counterclaim to include any amount for defective work disc vered after the date of filing. WHEREFORE, Defendant/Counterclaim Plaintiff, Craig Seig, respectfully requests this Honorable Court to enter judgment in its favor and against the Plainti , Strickland Brothers Construction, LLC, on Count One of its Counterclaim, in an amount" excess of $35,000.00, plus interest, or to have such amounts set-off against any amounts ow d to Plaintiff. COUNT II - VIOLATION OF THE UNFAIR TRADE PRACTI?ES AND CONSUMER PROTECTION LAW 52. Defendant incorporates herein by reference the averme#ts of paragraphs 1 through 51 above as if set forth fully herein. 53. Plaintiff provided an estimate, which has been attache to Defendant's Counterclaim as Exhibit "A", under which Plaintiff agreed to perform certain work on Defendant's home in a workmanlike manner. 54. Plaintiff's work was of a nature or quality inferior to or below the standard of that Plaintiff agreed to in the estimate provided to Defendant. 55. Plaintiff s failure to perform its work in a workmanlike manner is a violation of the Unfair Trade Practices and Consumer Protection Law, 73 Pa.C.S+ § 201-2(4)(xvi). 56. Defendant has suffered damages in excess of $35,000 cue to Plaintiffs violation of the Unfair Trade Practices and Consumer Protection Law. 8 WHEREFORE, Defendant/Counterclaim Plaintiff, Craig Seig, Honorable Court to enter judgment in its favor and against the Construction, LLC, on Count Two of its Counterclaim, in an amount Defendant's actual damages, which are in excess of $35,000.00, plus attorney's fees. Date: May 31, 2005 Respectfully REAGER & requests this Strickland Brothers to three times interest and P.C. John. Pietrzak, Esquire Attey I.D. No. 79538 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 1 011-464 Telephone: (717)1763-1383 Attorneys for De ndant 9 ST(uCKLAND BROTBERS CONsT_xuc ION, LLC Strickland Brothers Construction, LLC- New Home Construction cost to be built on on Longs Clap Road. House Plan 0512 "The Brownstone" 2046 square foot ranch with the addition of squ gained by adding 2' to the left and right sides of to be the same size as finished house. 611 sq. ft Design gecifications and.standards 9 foot poured concrete foundation walls TH Truss Joist.silent floor system 2x6 exterior construction t lot . footage to be ruse. Foundation vo car) garage. Electric will be according to municipal code. 350 Aker tubs and showers to be selected by homebu Strickland Brothers Construction uses Pex-tubing supplies and a Manabloc system. Two exterior hy standard for this plan. . Moen plumbing fixtures are standard Anderson maintenance free vinyl windows Therma-tru steel entry doors plumbing its are i SnUCKLAND BROTHERS CONSTRUCTION, LLC Maintenance-free vinyl siding (choice of beade or dutch lap: color to be picked by homebuyer) Full face of house to be stone (choice of colors d styles to be picked by homebuyer) Shutters and shutter boxes supplied by Stri,ckl Brothers Construction on front of house only (shutter col rs to be picked by homebuyer) Elk 30-year architectural shingles Fridgidaire (with 10 year warranty) propane fire buried propane tank Electric hot water heater Central air conditioning Bilco entry steps and doors leading to basement Seamless gutters and downspouts $1200.00 light fixture allowance $12500.00 floor covering allowance $16500.00 kitchen/bath cabinets and kitchenfbai Appliance package includes a ceramic smooth side by side refrigerator with icemaker, micro` range, and a 3-cycle dishwasher Vinyl front porch posts Cost of construction: S253,000.ob furnace with top allowance electric range, above the Thank you for choosing Strickland Brothers STRICKLAND BROTHERS CONSTRUCTION, LLC Homebuyer will be responsible for maintaining insurances during the phase of construction. applicable Homebuyer will be responsible to assume PPL/North 'dgeton Authority charges during the phase of construction. Strickland B others Constriction, LLC will set up all utilities and will notify homebuyer when the time is right to switch into their name. Homebuyer will be responsible for reimbursement of " water line to be installed by Strickland Brothers Construction for futur Municipal water Homebuyer will be responsible to apply for credit with Aero Energy or Shipley Energy for Propane tank. VERIFICATION I, Craig E. Seig verify that the averments of the foregoing to my personal knowledge, information and belief. I understand that made subject to the penalties of 18 Pa. C.S. §4904, relating to ties. Date: 5 &?J 10V By: 0, Craig E.' Seig are true and correct statements herein are falsification to authori- CERTIFICATE OF SERVICE AND NOW, this 31" day of May, 2006, I hereby verify that I correct copy of the foregoing document to be placed in the U.S. Mail, postage prepaid and addressed as follows: Mark W. Allshouse, Esq. 4833 Spring Road Shermans Dale, PA 17090 caused a true and Overnight Delivery, N G -) `.> , r n :. . i : __ ., ?? C=. ^n 'i Ill T . '? ? { ?? i ... .: _t,. _. N 4 rr? ? `< c- C'? Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Sherman Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2532 Civil Term CIVIL ACTION - LAW AND NOW, comes the Plaintiff, Strickland Brothers Construction, LLC, by and through its attorney, Mark W. Allshouse, Esquire and respectfully files the following Reply to Defendant's New Matter and Counterclaim: NEW MATTER 22. Paragraph 22 is a paragraph of incorporation to which no response is necessary. In the event a response is deemed necessary, it is denied. 23. The averment in paragraph 23 is a conclusion of law to which no response is necessary. 24. The averment in paragraph 24 is a conclusion of law to which no response is necessary. 25. The averment in paragraph 25 is a conclusion of law to which no response is necessary. 26. The averment in paragraph 26 is a conclusion of law to which no response is necessary. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant, together with costs of suit and attorney's fees. COUNTERCLAIM COUNT I - BREACH OF CONTRACT 27. Paragraph 27 is a paragraph of incorporation to which no response is necessary. In the event a response is deemed necessary, it is denied. 28. Denied. To the contrary, the written Agreement attached as Exhibit "A" To Plaintiff s Complaint is the written Agreement between Plaintiff and Defendant and was the Agreement forwarded to Commerce Bank by Defendant, executed by Defendant at Defendant's settlement and was used by Commerce Bank and Defendant to secure Defendant's construction loan. 29. Denied. Plaintiff s response to paragraph 28 is hereby incorporated by reference as though fully set forth at length. 30. Admitted. It is admitted that a different document was presented. By way of further response, Plaintiffs response to Defendant's Counterclaim, paragraph 28 is hereby incorporated by reference as though fully set forth at length. 31. Denied. To the contrary, Plaintiff and Defendant entered into a written Agreement attached as Exhibit "A" to Plaintiff s Complaint. By way of further response, Plaintiffs response to paragraph 28 of Defendant's Counterclaim is hereby incorporated by reference as though fully set forth at length. 32. Denied. To the contrary, Plaintiff agreed to work diligently to attempt to have the house under roof as soon as possible. By way of further response, as a result of delays caused by Defendant and/or his agents as set forth in Plaintiff's Complaint, that was not possible. By way of further response, strict proof of Defendant's averments contained in paragraph 32 is demanded at the time of trial if deemed relevant. 33. Denied. To the contrary, the collapse of the trusses was not a result of any negligence or deficiency created by Plaintiff, but was a result of 45 mile per hour winds. Strict proof of the averment of paragraph 33 is demanded at the time of trial if deemed relevant. 34. Denied as stated. While it is admitted that Defendant rejected the work and materials used in connection with the roof trusses, it is denied that any work performed by Plaintiff was deficient and/or defective. By way of further response, Plaintiffs response to paragraph 33 of Defendant's Counterclaim is hereby incorporated by reference as though frilly set forth at length. 35. Denied. To the contrary, Plaintiff requested Defendant to contact his insurance agent with regard to the truss system in order to address the collapse as a result of the weather conditions. By way of further response, Defendant failed or refused to contact such agent, and Plaintiff was unwilling to remove the trusses until such time as the damage could be properly documented. By way of further response, Plaintiff was thereafter advised to leave the job by Defendant's counsel. By way of further response, at no time did Plaintiff "abandon" the job. 36. Denied. To the contrary, the pleading received by Plaintiff contains no Exhibit "B". By way of further response, Plaintiff specifically denies any averments with regard to untimely performance, deficient or defective work contained within that correspondence. 37. Denied as stated. To the contrary, Plaintiff never abandoned the project. By way of further response, Plaintiff's answer to paragraph 35 of Defendant's Counterclaim is hereby incorporated by reference as though fully set forth at length. 38. Admitted. 39. Denied. To the contrary, no oral agreement existed between Plaintiff and Defendant, as the agreement was set forth in writing. By way of further response, Plaintiff's answer to paragraph 28 of Defendant's Counterclaim is hereby incorporated by reference as though fully set forth at length. 40. Denied. The averments of paragraph 40 are conclusions of law to which no response is required. 41. Denied. To the contrary, Plaintiff paid all subcontractors with the exception of excavator, who was hired by Defendant and who directly billed Defendant and was not a subcontractor to Plaintiff. 42. Denied. To the contrary, no oral agreement existed between Plaintiff and Defendant, as the agreement was set forth in writing. By way of further response, Plaintiff's answer to paragraph 28 of Defendant's Counterclaim is hereby incorporated by reference as though fully set forth at length. By way of further response, Defendant incurred no additional damage, as the cost to continue construction of the home, after terminating Plaintiff, does not constitute damages. Strict proof thereof is demanded at the time of trial. 43. Denied. To the contrary, no oral agreement existed between Plaintiff and Defendant, as the agreement was set forth in writing. By way of further response, Plaintiff's answer to paragraph 28 of Defendant's Counterclaim is hereby incorporated by reference as though fully set forth at length. By way of further response, the foundation was backfilled between 12/19/05 and 12/21/05 by an excavator chosen by Defendant. By way of further response, if part of the foundation needed to be backfilled, after termination with Plaintiff, that cost does not constitute damage against Plaintiff. 44. Denied. To the contrary, no oral agreement existed between Plaintiff and Defendant, as the agreement was set forth in writing. By way of further response, to the contrary, the foundation had been poured at the time of termination by Peifer Construction as shown on invoice number 104159 dated 12/6/05. 45. Denied. To the contrary, no oral agreement existed between Plaintiff and Defendant, as the agreement was set forth in writing. By way of further response, after reasonable investigation, Plaintiff is without knowledge or belief as to the truth or accuracy of the averments contained in paragraph 45 of Defendant's Counterclaim. Strict proof thereof is demanded at the time of trial, if deemed necessary. By way of further response, it is believed, and therefore, averred that Defendant's insurance company paid for the new trusses and labor involved to remove and replace them, and therefore, Defendant is not entitled to those damages. 46. Denied. To the contrary, no oral agreement existed between Plaintiff and Defendant, as the agreement was set forth in writing. By way of further response, the cost for constructing the home, whether done by Plaintiff or any other contractor, does not constitute damages, but is contemplated as part of Defendant's construction loan. Strict proof thereof is demanded at the time of trial. 47. Denied. Plaintiff is without belief or knowledge as to the truth of the averments of paragraph 47. Strict proof thereof is demanded at the time of trial. 48. Denied. To the contrary, no oral agreement existed between Plaintiff and Defendant, as the agreement was set forth in writing. By way of further response, is without belief or knowledge as to the truth of the averments of paragraph 48. Strict proof thereof is demanded at the time of trial. 49. Denied. Plaintiff is without belief or knowledge as to the truth of the averments of paragraph 49. Strict proof thereof is demanded at the time of trial. 50. Denied. To the contrary, Defendant has failed to make payment to Plaintiff for all amounts owed for work performed and materials provided. 51. Denied. Plaintiff is without belief or knowledge as to the truth of the averments of paragraph 49. Strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that any work performed by Plaintiff was deficient or defective. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant, thereby dismissing Count I of Defendant's Counterclaim. COUNT H - UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 52. Paragraph 52 is a paragraph of incorporation to which no response is necessary. In the event a response is deemed necessary, it is denied. 53. Denied. To the contrary, Exhibit "A" is the contract between Plaintiff and Defendant. By way of further response, Plaintiffs answer to paragraph 28 of Defendant's Counterclaim is hereby incorporated by reference as if set forth at length. 54. Denied. To the contrary, Plaintiff's work was of a good and workmanlike manner. 55. Denied. The averment of paragraph 55 is a conclusion of law to which no response is necessary. 56. Denied. The averment of paragraph 55 is a conclusion of law to which no response is necessary. By way of further response, after reasonable investigation, Plaintiff is without belief or knowledge as to the truth or accuracy of the amount of damages claimed by Defendant in paragraph 56 of its Counterclaim. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant, thereby dismissing Count H of Defendant's Counterclaim. Respectfully submitted, Date: (e?$? 05 t Marc W. Allshouse, Esq re Attorney ID # 78014 4833 Spring Road Sherman Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff 06/00/2006 11:21 7175027476 Mark W. Al*otvm, bquue A*nwy W # 78014 4833 SVft Road Sdenm m DaK PA 17090 (717)5824006 Aftmey for FWAff MARK W ALLSHMISE ESQ PAGE 01/01 SnUCKLAND BROTHERS : IN TIM COURT OF COMMON PLEAS CONSTRUCTION, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Pladntiff V. : NO. 06-2532 CPM TERM CRAIG SEIG, Defw,daut : CIM ACTION - LAW We, M. Jeff w Strickland mid Matthew G. Strickland, members of Strickland Brotbers Construction, LLC, being authorized to do so, vca* that the statements m the foregoing dacmmerrt are true and correct 8o the beat of our knowledge, information end belief under pwalties of 18 Pa.C.S.A. Soution 4904, relating t0 tmswom falsification to mdwrides. Data: 4($? Flo Date: (o 171 ap STRICKLAND BROTTIERS CONSTRUCTION, LLC Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Sherman Dale, PA 17090 (717)582.4006 Attorney for Plaintiff STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2532 Civil Term CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, as follows: John H. Pietrzak, Esquire REAGER & ADLER 2331 Market Street Camp Hill, PA 17011-4642 Date: /'05Gr/ k W. Allshouse, squire ttomey ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff N (? ? C> , ?.? G. <? .-1 (? T m ?„'r•, r 41 ;?{-?) "11 ` C _ Jl.?l a ?" n', 0.11 A REAGER & ADLER, P.C. BY: JOHN H. PIETRZAE, ESQUIRE Attorney I.D. No. 79538 Email: JJpietrzak(aReagerAdlerPC com BY: THOMAS O. WILLIAMS Attorney I.D. No. 67987 Email: Twilliams@ReagerAdlerPC com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Defendant Craie SeiQ STRICKLAND BROTHERS IN THE COURT OF COMMON PLEAS CONSTRUCTION, LLC, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CRAIG SEIG, Defendant TO THE PROTHONOTARY: CIVIL ACTION - LAW NO. 06-2532 CIVIL TERM : Jury Trial Demanded PRAECIPE Kindly attach the omitted Exhibit "B" to Defendant's Answer with New Matter and Counterclaim to Plaintiff's Complaint, previously submitted by letter dated June 8, 2006. Date: June 16, 2006 Respectfully submitted, REAGER & ADLER, P.C. ZtJtorne H. Pi etrzak, Esquire y I.D. No. 79538 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011-464 Telephone: (717) 763-1383 x CERTIFICATE OF SERVICE AND NOW, this 16th day of June, 2006, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. Mail, postage prepaid and addressed as follows: Mark W. Allshouse, Esq. 4833 Spring Road Shermans Dale, PA 17090 JJIHgN H. PIETRZAK, ES UIRE y.• P•? s ; l T . t -77 PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ? for JURY trial at the next term of civil court. x? for trial without a jury. -------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) Strickland Brothers Construction, LLC, (Plaintiff) VS. Craig Seig, VS. (Defendant) 0 Civil Action - Law ? Appeal from arbitration (other) The trial list will be called on and Trials commence on Pretrials will be held on (Briefs are due S days before pretrials No. 06-2532 , Civil Term Indicate the attorney who will try case for the party who files this praecipe: Mark W. Allshouse, Esquire, counsel for Plaintiff Indicate trial counsel for other parties if known: John H. Pietrzak, Esquire, counsel for Defendant This case is ready for trial. Signed: Print Na Mark W. Allshous , Esquire Date: U? Attorney for: Plaintiff Attorneys for parties unavailable as follows: Mark W. Allshouse: 2-18-2008 through 2-22-200A + John H. Pietrzak: 1-24-08, 1-31-08, 2-27-08, 3-3 through 3-17-08, 3-21-08, 3-31-08, 4-1-08 through 4-18-08 c? C= 0 r,-Cl ?J p ? U W ? W r ?Tj F m .I z r7l i 00 __ STRICKLAND BROTHERS CONSTRUCTION, LLC, PLAINTIFF V. CRAIG SEIG, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2532 CIVIL ORDER OF COURT AND NOW, this 23rd day of January, 2008, the Non-Jury Trial in the above referenced case has been assigned to this Court. Prior to setting an actual trial date, IT IS HEREBY ORDERED AND DIRECTED that the parties in this case file a pre-trial memorandum with the Court on or before February 13, 2008, in the following format: 1. A concise statement of factual issues to be decided at trial. II. A list of witnesses the party intends to call at trial along with a concise statement of their anticipated testimony. III. A list of all exhibits each party anticipates presenting at trial. IV. A statement of any legal issues each party anticipates being raised at trial along with copies of any cases which may be relevant to resolution of the stated issue. V. An estimate of the anticipated time needed for the party to present its case. Upon receipt and review of these memorandums, the Court will set a trial date for this case. By the Court, '\N\ It M. L. Ebert, Jr., J ?Ijl ill ?e f v ? ( it-`: LI A Mark W. Allshouse, Esquire Attorney for Plaintiff John H. Pietrzak, Esquire Attorney for Defendant Court Administrator -,&4S 1 3/a? bas QoF les ir+??LL 3/O$ /0A STRICKLAND BROTHERS CONSTRUCTION, LLC, PLAINTIFF V. CRAIG SEIG, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2532 CIVIL ? WESTFILED INSURANCE COMPANY IN THE COURT OF COMMON PLEAS OF AS SUBROGEE OF CRAIG SEIG CUMBERLAND COUNTY, PENNSYLVANIA P.O. BOX 5001 WESTFIELD CENTER, OH 44251-5001 PLAINTIFF V. STRICKLAND BROTHERS CONSTRUCTION, LLC., 621 CREEK ROAD CARLISLE, PA 17013 DEFENDANT NO. 08-0423 CIVIL ORDER OF COURT AND NOW, this 12th day of February, 2008, the Court having been advised that another suit has been filed by Westfield Insurance Company which may need to be consolidated with the above captioned matter, IT IS HEREBY ORDERED AND DIRECTED that this Court's previous order of January 23, 2008, requiring that the parties file pre-trial memorandum with the Court on or before February 13, 2008, is RESCINDED. IT IS FURTHER ORDERED AND DIRECTED that a status conference on this case to include counsel representing Westfield Insurance Company will be held on Tuesday, April 29, 2008 at 3:30 p.m. in chambers of Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, ,*? -t?_ ?AA M. L. Ebert, Jr., 60 :8 WV € f 83J 8001 KdVIC & 3?.0'c;'d 3,41 JO 3-01A-40- 0911 /Mark W. Allshouse, Esquire Attorney for Plaintiff /John H. Pietrzak, Esquire Attorney for Defendant Zaul M. Schofield, Jr., Esquire Attorney for Westfield Insurance Company Court Administrator . MS 11140( Gort,ex ''n`? Ll f4 alp a/og bas STRICKLAND BROTHERS CONSTRUCTION, LLC, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CRAIG SEIG, DEFENDANT : NO. 06-2532 CIVIL WESTFILED INSURANCE COMPANY IN THE COURT OF COMMON PLEAS OF AS SUBROGEE OF CRAIG SEIG CUMBERLAND COUNTY, PENNSYLVANIA P.O. BOX 5001 WESTFIELD CENTER, OH 44251-5001 PLAINTIFF V. STRICKLAND BROTHERS CONSTRUCTION, LLC., 621 CREEK ROAD CARLISLE, PA 17013 DEFENDANT NO. 08-0423 CIVIL ORDER OF COURT AND NOW, this 29th day of April, 2008, after status conference with counsel and it appearing that all parties agree to consolidation of these cases for trial, IT IS HEREBY ORDERED AND DIRECTED that: A. All Discovery in these cases will be completed on or before July 30, 2008; B. Pre-Trial Motions in this matter shall be filed and the Motions set down for argument on or before August 14, 2008; Argument of any Pre-Trial Motions will be held at Argument Court on September 3, 2008; C. All parties will file a Pre-Trial Memorandum with the Court on or before September 25, 2008, in the following format: 1. A concise statement of factual issues to be decided at trial. II. A list of witnesses the party intends to call at trial along with a concise statement of their anticipated testimony. III. A list of all exhibits each party anticipates presenting at trial. CI I%j QV ?dv 09Z l r. IV. A statement of any legal issues each party anticipates being raised at trial along with copies of any cases which may be relevant to resolution of the stated issue. V. An estimate of the anticipated time needed for the party to present its case. D. Trial of this matter will be held at 9:00 a.m. on Friday, October 3, 2008, in Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. Zmark W. Allshouse, Esquire Attorney for Plaintiff -/ John H. Pietrzak, Esquire Attorney for Defendant Paul M. Schofield, Jr., Esquire Attorney for Westfield Insurance Company Court Administrator bo-S 41 bas M. L. r-UUR, Jr., 2 By the Court, STRICKLAND BROTHERS CONSTRUCTION, LLC, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CRAIG SEIG, DEFENDANT NO. 06-2532 CIVIL WESTFILED INSURANCE COMPANY IN THE COURT OF COMMON PLEAS OF AS SUBROGEE OF CRAIG SEIG CUMBERLAND COUNTY, PENNSYLVANIA P.O. BOX 5001 WESTFIELD CENTER, OH 44251-5001 PLAINTIFF V. STRICKLAND BROTHERS CONSTRUCTION, LLC., 621 CREEK ROAD CARLISLE, PA 17013 DEFENDANT NO. 08-0423 CIVIL ORDER OF COURT AND NOW, this 6th day of October, 2008, after the first day of testimony in the Non-Jury Trial in this matter, it appears that possibly 2 more days will be needed, IT IS HEREBY ORDERED AND DIRECTED that the continuation of the Non-Jury Trial will be held on Wednesday, February 18, 2009, at 9:00 a.m. and Friday, February 20, 2009, at 9:00 a.m. in Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, ark W. Allshouse, Esquire Attorney for Plaintiff Ahn H. Pietrzak, Esquire Attorney for Defendant aul M. Schofield, Jr., Esquire Attorney for Westfield Insurance Company Court Administrator - bAs id101o$ bas _??l "4A - M. L. Ebert, Jr., J. mo S :91 HV 9- 190 0001 1? 1? t uL t f ` ; ?d Z-Hi d ; STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff NO. 06-2532 CIVIL TERM CRAIG SEIG, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. Defendant WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff CIVIL ACTION - LAW IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-0423 CIVIL TERM CIVIL ACTION - LAW IN RE: NON-JURY TRIAL ORDER OF COURT ca --? AND NOW, this Ist day of April, 2010, after nonjury trial in the above captioned matter, v. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant the verdict of the Court is as follows: 1. On Strickland Brothers Construction, LLC's claim of breach of contract by Seig (Plaintiff's Complaint, Count I) the Court finds in favor of Seig and against Strickland Brothers Construction, LLC. 2. On Strickland Brothers Construction, LLC's claim of unjust enrichment (Plaintiff's Complaint, Count II) the Court finds in favor of Strickland Brothers Construction, LLC and against Seig and awards the amount of $12,907.77. 3. On Seig's claim of breach of contract by Strickland Brothers Construction, LLC, (Defendant's Counterclaim, Count I) the Court finds in favor of Seig and against Strickland Brothers Construction, LLC, and awards damages in the amount of $500.00. 4. On Seig's claim of the violation 73 Pa.C.S.A. §201-2(4)(xvi) of the Unfair Trade Practices and Consumer Protection Law, (Defendant's Counterclaim Count II), the Court finds in favor of Strickland Brothers Construction, LLC, and against Seig. 5. On Westfield's claims of (1) breach of contract, (Westfield's Complaint, Count I), (2) breach of warranty, (Westfield's Complaint, Count II), and (3) negligence (Westfield's Complaint, Count III), the Court finds in favor of Westfield and against Strickland Brothers Construction, LLC, and awards damages in the amount of $18,569.61. By the Court, 11kk\ Q4\ M. L. Ebert, Jr., J. Mark W. Allshouse, Esq. Attorney for Strickland Brothers Construction, LLC Paul M. Schofield, Jr., Esq. Paul F. D'Emilio, Esq. Attorneys for Westfield Insurance Company as Subrogee of Craig Seig ,John Pietrzak, Esquire Attorney for Craig Seig ?l (2 t SS 6F , A/I/to ,*-?l 2 STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2532 CIVIL TERM CIVIL ACTION - LAW IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-0423 CIVIL TERM : CIVIL ACTION - LAW IN RE: NON-JURY TRIAL OPINION and ORDER OF COURT Ebert, J., April 1, 2010 - FINDINGS OF FACTS Strickland Brothers Construction, LLC (hereinafter SBC) is a corporation organized and existing under the laws of Pennsylvania, doing business in Pennsylvania, with its principle place of business at 623 Creek Road, Carlisle, PA 17013. Morris Jeffrey Strickland (hereinafter J. Strickland) is a fifty percent owner of SBC.1 Matthew Gordon Strickland (hereinafter M. Strickland) is the other fifty percent owner.2 Craig Seig (hereinafter Seig) owns Lot No. 6, Longs Gap Road, Carlisle, PA.3 Westfield Insurance Company (hereinafter Westfield), subrogee t Notes of Testimony, Oct. 3, 2008, p. 5 (hereinafter N.T. Day 1 at _). 2 N.T. Day 1 at 5. s Notes of Testimony, Feb 18, 2009, p. 8 (hereinafter N.T. Day 2 at ?. 3 of Seig, is a corporation authorized to do business in Pennsylvania, having an office at P.O. Box 5001, Westfield, OH 44251-5001. On September 11, 2005, Seig met J. Strickland and reviewed the plans and proposals for construction of a residential home on Lot No. 6 along Longs Gap Road in North Middleton Township. They discussed what each party's scope of work would be.4 SBC's scope of work generally included pouring the foundation, laying the deck, framing of the interior and exterior walls, finishing the exterior with siding and constructing the roof.5 Construction of the roof in this case consisted of installing pre-engineered roof trusses supplied by PB Truss Inc., laying 4 x 8 sheets of oriented strand board (O.S.B.) over the roof trusses, laying tar paper over the OSB, and then installing 30 year architectural shingles.6 Seig's scope of work included the excavation, all interior work, and the installation of exterior doors and windows. During the meeting Seig was advised that both J. Strickland and M. Strickland would be taking vacation during November of 2005.8 On September 26, 2005, settlement on the construction loan from Commerce Bank to Craig Seig was completed.9 Additionally, even though Seig has maintained that he was serving as the general contractor of this project, he allowed Plaintiff's Exhibit No. I to be presented to the bank in order to give the impression to the bank that he had hired a general contractor. Seig's motive for doing this is clear. It was necessary because banks were reluctant to grant construction loans directly to property owners who had not hired legitimate recognized 4 Stip. of Facts at 1, N.T. Day 1 at 8, N.T. Day 2 at 9. s N.T. Day 2 at 11. 6 Plaintiff's Exhibits 1, 3. 7 N.T. Day 2 at 10. s Stip. of Facts at 1. 9 Stip. of Facts at 1. 4 contractors.10 This explains why Seig went through with the closing utilizing Plaintiff's Exhibit No. 1 even though he felt that he was between a "rock and a hard place."11 At settlement, J. Strickland stated that the house would be under roof by Christmas of 2005 and completed within six months.12 The Court finds that the December 25 date was a reasonable estimate, but one which could be easily impacted by factors such as weather and completion of excavation. There is no signed document that specified when the house would be under roof. 13 The Construction Loan Agreement between Seig and Commerce Bank set April 26, 2006, as the time limit for the completion of the project. 14 April 26, 2006, was six months plus an additional thirty-day grace period from the date of settlement.15 The end loan interest rate was locked in until April 26, 2006.16 SBC maintains that they never agreed to finish the home in six months and that they normally recommend a twelve month term for construction.17 The Court does not find this credible. Clearly, when J. Strickland went to the construction loan closing, he signed a "Guarantee of Completion and Performance" which said that the project would be "substantially completed within the time limits set forth in the construction loan agreement." The construction loan agreement signed by Seig at the same closing clearly indicates at page 4 "borrower (emphasis added) agrees to complete the project for purposes of final payment to the general contractor on or before April 26, 2006, regardless of the reason for any delay."18 10 N.T. Day 1 at 7. 11 N.T. Day 2 at 12. 12 N.T. Day 1 at 169. 13 N.T. Day 1 at 176. 14 N.T. Day 1 at 165. 15 N.T. Day 1 at 165. 16 N.T. Day 1 at 169. 17 Plaintiff's Ex. 15. 18 Def. Ex. 4, N.T. Day 1 at 163-164. 5 SBC was to be paid for their work from the draw schedule established by the Construction Loan Agreement.19 The previously agreed upon breakdown of the scope of work was not reflected in any contract signed by both parties .20 SBC has consistently maintained that the document presented to the Court as Plaintiff's Exhibit No. 1 constitutes a "construction agreement" which was in essence the contract between SBC and Seig to construct the home in question. The Court having examined the document and the context in which it was utilized finds that this was not a written construction contract. In reality, SBC provided this document to Seig in order to establish for the bank the general specifications of the house being built and the cost of construction.21 Plaintiff's Exhibit No. 1 lists the construction cost as $253,000.00. Commerce Bank provided a construction loan for $250,000.00 and Seig provided the additional $3,000.00 as evidenced in Defendant's Exhibit No. 8, the "Advance Schedule," to cover the total construction cost of $253,000.00 reflected in Plaintiff's Exhibit No. 1. SBC had scheduled Peifer Construction (hereinafter PC) to pour the footers for the foundation on October 11, 2005. Seig was responsible for excavation of the hole in which the foundation footers and concrete basement walls were to be built. However, Seig's excavator, Mike Neidig (hereinafter Neidig), did not even start excavation until October 17, 2005, and completed the excavation on October 19, 2005.22 Consequently, since the hole was not even dug by the time PC's footer crew arrived on October 11, 2005, to begin pouring the footers, PC rescheduled this work for their next available date which was not until November 16, 2005. The footers were completed on November 19, 2005. On November 29, 2005, PC began to pour the concrete basement walls which were completed on December 1, 2005. Consequently, the Court finds that at least one month of construction time was lost as a result of Seig not having the t9 N.T. Day 2 at 12. 20 N.T. Day 2 at 12, N.T. Day 2 at 16. " N.T. Day 2 at 14 -15. 22 Stip. of Facts at 1, N.T. Day 2 at 80, N.T. Day 2 at 20. 6 basement excavation completed prior to PC's first scheduled date for the pouring of the footers which was October 11, 2005. A question arose as to who was responsible to backfill the foundation. Seig states that SBC told him they would backfill the foundation free of charge. Later, after the basement walls were finished, he says M. Strickland told him that SBC's excavator was unable to do the job. Seig immediately arranged for and paid Neidig to backfill the foundation.23 Backfilling was completed on December 19, 2005.24 This Court finds that Seig was responsible for "excavation." In this type of construction, excavation includes not only digging the hole but backfilling the foundation. However, this dispute is of little moment in this case. SBC always charged Seig for anything done in the construction of this home. There is no evidence whatsoever that SBC would have gratuitously done the backfilling of this foundation for free. Accordingly, whether Seig paid to backfill the foundation or would have been charged by SBC for backfilling, the money still would have come out of the account created by the Commerce Bank construction loan. The Court does find that in the construction industry, it is customary to allow the concrete basement walls to cure before backfilling and framing begins. Again backfilling was completed on December 19, 2005, and that was the date that SBC had the lumber for the framing delivered to the site and set the steel I-beam and lolly columns necessary to support the deck. Thus the period of time between December 1 and December 19, 2005, was not a period of unexplained delay which can be attributed to SBC.25 Snowfall prevented SBC from pouring the concrete floor in the basement. 26 Instead SBC proceeded with the construction of the deck and the exterior and interior walls.27 The Court 23 N.T. Day 2 at 11, 24 - 26. 24 N.T. Day 2 at 25. 25 Plaintiff's Ex. 3, 4, and 15, N.T. Day 1 at 22. 26 N.T. Day 2 at 27-28. 7 finds that SBC proceeded with constructing the deck and the walls so that the roof could be completed thereby making the rough framing watertight and allowing all the inside work to proceed. Pouring the final concrete basement floor was definitely something that could have been completed at a later date and did not in any way delay construction of this home. In essence, Seig's shoveling and melting of the snow between Christmas and New Year 2005 was totally unnecessary. On January 20, 2006, the walls were complete and ready for SBC set the roof trusses.28 This Court finds that SBC provided insufficient temporary bracing for the roof truss system, and did not meet industry standards regarding the type of bracing that was required for these trusses.29 Per industry standards, a complete temporary bracing system for the roof truss system should have secured the first truss with adequate ground bracing. As additional trusses are set longitudinal and diagonal bracing are required.30 This Court finds that SBC failed to provide sufficient ground bracing of the sheathed gable end trusses and clearly insufficient longitudinal and diagonal bracing for this roof truss system. Given the size of the gable end trusses, and the fact that they were delivered to the home site with the external plywood sheeting already installed, they presented a very large solid surface (similar to a giant sail) which would be especially vulnerable to high winds.3 i As a direct result of this insufficient bracing by SBC, the roof truss system collapsed on January 21, 2006, during a period of wind gusts which may have reached 32-45 miles per hour. 32 Had the bracing on the truss system been correctly installed, the trusses would have been able to 27 N.T. Day 2 at 28. 28 Stip. of Facts at 1. 29 N.T. Day 2 at 170. 30 N.T. Day 2 at 170-171. 31 Def. Ex, 26, N.T. Day 2 at 178. 32 Def. Ex. 23 8 withstand such wind force. 33 Clearly, SBC as an experienced construction firm should have anticipated that bad weather in the winter often comes with higher winds requiring more than minimal bracing. The sheathed front gable end truss toppled inward, the sheathed rear truss and the sheathed left end truss toppled out away from the home. 34 The trusses between both gable ends collapsed in a similar orientation as the gable ends. 35 The collapse caused damage to both the roof trusses and some framed walls, 36 The Court finds that the trusses shown in Defendant's Exhibit No. 11 were damaged such that they were not suitable for reuse.37 Accordingly, an entire new set of trusses was ordered and installed by Fulmer Construction Services. R. J. Potteiger Construction Services Inc. removed the first set of damaged trusses. 38 Westfield was the insurance company Seig selected to insure the construction project as required by Commerce Bank as a condition of their granting Seig the construction loan.39 All told, Westfield paid Craig Seig $18,569.61 as settlement for the claim associated with the collapsed damaged trusses. Additionally, Craig Seig had a $500.00 deductible on this policy for a total damage claim of $19,069.61,40 After collapse of the trusses, uncertainty reigned with regard to completion of the project. According to J. Strickland, SBC contacted Seig and advised him to call his insurance company in order to determine how to proceed. SBC did tell Seig that they would reset the trusses that weren't damaged, order new ones to replace the damaged trusses and proceed with the project. 33 Def. Ex. 26, N. T. Day 2 at 181. 34 Def. Ex. 26. 32 Def. Ex. 26. 36 Def. Ex. 11, N. T. Day 2 at 46. 37 Def. Ex. 11, N.T. Day 2 at 187-188. 38 Def. Ex. 16, N.T. Day 2 at 46. 39 Def. Ex. 4, N.T. Day 2 at 148-149. 40 Def. Ex. 15 9 SBC indicated that they could "fix it" and that it would take about a week.41 Seig never returned any of SBC's calls after January 21, 2006. Having viewed the damage to his home, Seig naturally lost confidence in the construction ability of SBC. On January 26, 2006, Seig's attorney sent SBC a letter terminating the construction contract with SBC. Seig claimed untimely performance and defective workmanship. Seig requested an accounting of the first $37,000.00 draw made on the construction loan, and advised SBC if they wanted payment beyond the initial $37,000.00 draw they would be required to provide documentation of all materials and manpower used.42 The Court finds that Seig did legitimately terminate the construction contract based on SBC's defective workmanship in setting and bracing the roof trusses. Seig has not proven his claim of untimely performance. Westfield, as the insurer, paid for all materials, to include a new set of trusses and the labor to remove the old trusses and set new trusses.43 Again, the total payment was $19,069.61 which included Seig's $500.00 deductible. SBC was not invited back on site and did not perform any work after the January 26, 2006, notice of termination.44 Interestingly, an examination of the invoices relating to the damaged trusses provides the Court with some insight on how long it took to repair the damage. The new trusses from PBS Truss, Inc. were scheduled for delivery to the site on February 2, 2006. Fulmer Construction Services' invoice which includes the labor for resetting the trusses is dated 2/16/06. R.J. Potteiger Construction Services provided "roof materials" for Seig's home by invoice dated February 7, 2006. While R.J. Potteiger Construction Services final invoice for removal of the first set of damaged roof trusses is not dated until April 6, 2006, it is apparent to this Court that having the damaged roof trusses 41 N.T. Day 2 at 41. 42 Def. Ex. 14 43 N.T. Day 2 at 157-158. 44 Stip. of Facts, Para. #12. 10 on the home site would not have in any way delayed the project. Accordingly, the Court finds that the roof on Seig's home was completed on or about February 16, 2006, approximately 27 days from the collapse of the first set of trusses.45 After terminating SBC from the project, Seig proceeded finishing the house on his own. As he has maintained throughout the course of this proceeding, he did in fact become the general contractor of this construction project. Seig testified that he had no agreement with Commerce Bank which allowed them to control who would be the builder after he terminated SBC.46 Seig indicated that he along with this father, brother-in-law and a friend of his father's did a lot of the work.47 Additionally, Seig hired other subcontractors to complete the home and they were paid from the Commerce Bank draw schedule.48 Seig maintains that he did not complete the house by March 26, 2006.49 Gethen Wilson, mortgage originator with Commerce Bank, attempted to explain the March 26 date as the date the house was to be completed. She stated April 26, 2006 was simply a date which represented an additional 30 day grace period which she always included in construction agreements. Be that as it may, this Court finds that the only stated "completion date" contained in the construction loan agreement was April 26, 2006.50 Based on this, Seig, as general contractor, had a period of three months from January 26, 2006, to April 26, 2006, to complete his home. All of this has significance for only one purpose, that being Craig Seig's claim that he is owed damages in excess of $70,000.00 as a result of additional interest payments he will have to pay as a result of Commerce Bank increasing his locked in mortgage rate from 5.375% to 45 Def. Ex. 16. 46 N.T. Day 2 at 73. 47 N.T. Day 2 at 70. 48 N.T. Day 2 at 73-74. 49 N.T. Day 2 at 20. 5" plaintiff's Ex. 2, N.T. Day 1 at 165. 11 6.375% by their letter dated May 12, 2006.51 Two points are of interest here. First, Commerce Bank obviously didn't consider the completion date to be March 26, 2006, or they would have advised Seig of the new interest rate much earlier. Second, Seig specifically testified that after the roof truss system collapsed, he talked with Commerce Bank the next morning and "the bank told me to terminate the Strickland Brothers."52 The Court notes that unlike the negotiations that preceded approval for the construction loan, Commerce Bank no longer required Seig to have a separate general contractor to complete his home. Clearly Commerce Bank's interest in completing Seig's home was nil. Their motive for this attitude is obvious. They were the ones who would benefit from the increased interest rate if completion of the home was delayed. The Court finds that SBC will not be held responsible for the final delay, and accordingly SBC will not be required to pay damages for the extra interest the Defendant claims he now has to pay. Seig's own delay in completing the excavation caused at least one month delay in the construction. This delay dictated that the roof truss system would have to be installed in January. Accordingly, subtracting one month from the final completion date would have brought the project's completion within the final April 26, 2006, deadline. This Court finds that this home could have been completed by April 26, 2006, even given the truss collapse and that the final delay is not attributable to SBC. SBC received the first construction draw from Commerce Bank in the amount of $37,500.00.53 SBC used $31,282.77 to pay its subcontractors and retained the remaining $6,217.23.54 SBC also claimed $540.00 for the rental of a trash pump to Seig which he utilized in pumping out his basement. SBC owned the pump and allowed Seig to use it. It wasn't until after Seig terminated SBC, that SBC decided to charge Seig for the pump rental. Accordingly, " Def. Ex. 5. 5' N.T. Day 2 at 43. 53 Stip. of Facts at 12. 54 Stip. of Facts at 2 12 the Court finds that Seig never agreed to pay for the rental of the pump nor was payment for use of this pump ever anticipated by either party. Accordingly, the $540.00 claim for the pump rental is denied. At issue then is the legitimate amount of money owed to SBC for its framing of the home prior to the roof truss collapse. Clearly from the record, SBC was not keeping a daily log of its man hours expended on this project. J. Strickland admits that he did not keep a daily log and only created the compilation of hours after being terminated and told by Seig's attorney to provide such an accounting. SBC claims that they spent 505 man hours on the project. In examining Plaintiff's Exhibit No. 4, this amount of hours includes 50 hours for setting the trusses which eventually collapsed. Obviously, given SBC's defective workmanship in setting the trusses they cannot claim reimbursement for these hours. Accordingly, SBC's total claim for hours is 455 hours. Seig on the other hand utilizing a construction program on his computer calculated that given the amount of work done, SBC would have only expended 348 hours. SBC claims labor costs at $45 an hour based on the rate they normally charge other people for odd jobs that are done on an hourly basis. 55 Seig maintains that the labor costs should be $33 an hour because SBC is a nonunion firm and he claims that only union builders would get $45 an hour. Seig's approach is not persuasive. In essence he admits "builders" do get $45 an hour and since there was no agreed upon hourly rate, the Court finds that SBC's use of the rate they normally charge people for hourly projects is reasonable. Accordingly, the Court will compute the labor costs at $45 an hour. ss N.T. Day 1 at 41. 13 Again, SBC admits that its written logs of the hours found in Plaintiff's Exhibit No. 4 "weren't meant to be the gospel truth of every day. ,56 In examining Plaintiff's Exhibit No. 4, the Court finds that SBC's claim of 60 man hours to set the I-beams and lolly columns and laying out the sill plate is exaggerated. The Court finds that this work should have been completed in no more than 30 man hours. The remainder of the time allocated to lay the floor joists, sheet the deck, frame the exterior and interior walls, and sheet the outside walls does appear reasonable. Thus subtracting the time spent on setting the trusses (50 hours), and the over estimated time for setting the I-beams and laying the sill plates (30 hours) reduces SBC's claimed labor hours to 525. In essence, this is within 77 hours of Seig's own estimate. Again, basically considering a 5 man crew which generally worked 10 hour days brings the 2 estimates to within a difference of only 1 '/z days. The Court does find from its examination of the photographs and video tapes of the project (Defendant's Exhibits 11, 12, 17) that SBC did frame the home in a workmanlike manner. Thus the value of the labor expended by SBC up to the setting of the trusses is 425 hours at $45 an hour for a total of $19,125.00. It is interesting to note that SBC's attorney in his proposed settlement letter dated February 1, 2006, requested $23,265.00 for "design and framing labor." Equally important is the fact that the fax from Seig's attorney to Seig dated February 2, 2006, indicates "the amount requested is probably pretty close to what you thought SBC was owed. ,57 (emphasis added) DISCUSSION This case presents the not uncommon scenario of a property owner with some construction experience choosing to serve as his own general contractor in the construction of his personal home. Having made the decision to serve as his own general contractor, he needed to ss N.T. Day 1 at 35. 57 Plaintiff's Ex. 15. 14 find another contractor to do what in the trade is referred to as the "rough framing." This basically consists of laying the foundation, putting on the floor deck, framing the outside and inside walls, and putting on the roof. Seig then wanted to control the completion of the inside work such as dry walling, plumbing, heating, painting, flooring, and carpeting etc. In seeking such a contractor he found that most contractors did not want to perform just rough framing and preferred to build the entire home themselves.58 SBC maintains that it was the "General Contractor," and that it was simply going to utilize the subcontractors named by Seig to perform the tasks necessary to finish the house. This appears unlikely in that nothing in the record suggests that SBC even talked to any of the subcontractors for electric, plumbing, HVAC, insulation, etc. Without such bids and agreements, it would be impossible for SBC to know the final cost of the project. However, resolution of the issue as to who really was the "General Contractor" is not necessary to resolve this case given the fact that SBC was legitimately terminated as Seig's contractor even before the "rough framing" was complete. In any regard, the various causes of action to be decided by the Court in this case are as follows: I. SBC's claim of breach of contract by Seig (Plaintiff's Complaint, Count I). 2. SBC's claim of unjust enrichment (Plaintiff's Complaint, Count II). 3. Seig's claim of breach of contract (Defendant's Counterclaim, Count I). 4. Seig's claim of violation § 201-2(4)(xvi) of The Unfair Practices and Consumer Protection Law (UPCPL) (Defendant's Counterclaim, Count II). 5. Westfield's claim of breach of contract (Westfield's Complaint, Count I). 6. Westfield's claim of breach of warranty (Westfield's Complaint, Count II). 58 N.T. Day 2 at 8, 9. 15 7. Westfield's claim of negligence (Westfield's Complaint, Count III). Based on these causes of action, each party claims damages against the other. The Court will now discuss the causes of action seriatim. L Breach of Contract All parties have claimed in essence that the other breached the construction contract. "A breach of contract claim in Pennsylvania requires three elements: (1) the existence of a contract (2) a breach of a duty imposed by the contract and (3) resulting damages." J.F. Walker Co., Inc. v. Excalibur Oil Group, Inc., 792 A.2d 1269, 1272 (Pa. Super. 2002), citing Williams v. Nationwide Mut. Ins. Co., 750 A.2d 881, 884 (Pa. Super. 2000). Contrary to SBC's pleadings, the Court agrees with Defendant Seig that there never was a written construction contract agreed to by the parties. This, however, is not fatal to a breach of contract claim. "In cases involving contracts wholly or partially composed of oral communications, the precise content of which are not of record, Courts must look to the surrounding circumstance and course of dealing between the parties in order to ascertain their intent". Refuge Mgmt. Sys. v. Consol. Rec.. cam., 671 A.21) 1140 (Pa. Super. 1996). An agreement is a valid and binding contract if the parties have manifested intent to be bound by the agreement's terms, the terms are sufficiently definite, and there is consideration. Johnston the Florist, Inc. v. TEDCO Connt Com , 657 A.2d 511 (Pa. Super. 1995). There is no doubt that there was an oral contract between SBC and Craig Seig that at a minimum SBC would construct the rough frame of a ranch home pursuant to house plan No. 9812 entitled "The Brownstone" on Seig's property on Longs Gap Road. This would include building the basement walls, the floor deck, the outside and inside stud walls and the roof, complete with shingles. Here SBC had completed the foundation for the house and was 16 performing the framing. Seig was adequately satisfied with SBC's performance such that he did not object to SBC taking the initial draw of $37,500.00. This Court finds that SBC did breach this contract to frame the home. SBC had a duty imposed by the contract to install in a workmanlike manner a safe and secure roof truss system. SBC breached this duty by not installing sufficient temporary bracing during installation of the roof trusses. As a direct result of this breach, the roof truss system collapsed during a period of wind gusts. This collapse caused damage to Seig's property. The damage consisted of the broken roof trusses and some additional, relatively minor damage to the framed walls of the home. Damages for defective performance of a building contract are determined by the reasonable cost of correcting the defects. Fetzer v. Vishneski, 582 A.2d 23 (Pa.Super. 1990). Here the damage cost $19,069.61 to repair and equals the sum paid by Westfield on the insurance claim ($18,569.61) plus Seig's $500.00 deductible. In regard to Seig's additional claims of SBC's supposedly deficient work, we find for SBC. Basically, Seig claims that SBC improperly framed the rough openings for certain windows and doors, improperly framed the tub space in the small bathroom, and failed to align the knockout holes in the floor truss joists. Additionally, Seig complained about the way the sill plate was attached to the steel I-beam and some additional concrete work that was needed to complete the front porch. In examining Defendant's Exhibit Number 22, Seig claims these various "deficiencies" resulted in damages amounting to $8,824.54. In a bench trial it is the duty of the trial Judge to judge credibility of witnesses and to weigh their testimony. Weir by Gasper v. Estate of Ciao, 556 A.2d 819 (Pa. 1989). In any case, the finder of fact is entitled to weigh the evidence presented and assess its credibility. The finder of fact is free to believe all, part or none of the evidence presented. Smith v. Smith, 904 A.2d 15 (Pa.Super. 2006). Here, the Court finds that the defects claimed by Seig are typical minor problems that a contractor would routinely 17 correct. This Court finds as fact that the additional damages claimed by Seig are not supported by the evidence and in any regard, did not require $8,824.54 worth of repairs. See, Pittsburgh Const. Co. v. Griffith, 834 A.2d 572 (Pa.Super. 2003). Accordingly, this claim is denied. Although SBC made statements to Seig at settlement that the house would be under roof by Christmas of 2005, SBC is not responsible for the delay in the construction and failure to meet that date. Seig was responsible for scheduling the excavation. Seig was aware when hiring SBC, that J. and M. Strickland would both be taking vacation during November. The delay of the excavation by Seig resulted in the rescheduling and a subsequent delay in the pouring of the footers and walls. That delay coupled with the agreed upon vacation of J. and M. Strickland, caused the delay in the construction of the house and meant that it could not be under roof by Christmas of 2005 as previously planned. The failure to meet the April 26, 2006 date set by the Construction Loan Agreement that resulted in a higher end loan rate must be born by Seig. R Unfair Trade Practices and Consumer Protection Law Seig has filed a counterclaim against SBC for violation of the Unfair Trade Practices and Consumer Protection Law. Specifically Seig maintains that SBC violated §201-2(4)(xvi) of the UTPCPL. That section reads as follows: (xvi) Making repairs, improvements or replacements on tangible real or personal property, of a nature or quality inferior to or below the standard of that agreed to in writing; (emphasis added) 73 Pa.C.S.A. §201-2(4)(xvi). Interestingly, in his answer to SBC's complaint, Seig basically maintains that there never was any written agreement with SBC. However, for the purposes of satisfying the writing requirement for his UTPCPL violation counterclaim, he maintains that Plaintiff's Exhibit #1 is the writing in which SBC agreed to construct the home in a manner which would not be inferior to or below the standard normally expected in such work. 18 As previously stated the work that SBC did on Seig's home up to the point of setting the roof truss system was satisfactory and done in a good and workmanlike manner. As discussed in other portions of this opinion, SBC was under a duty and did warrant that it would construct Seig's home in a reasonable workmanlike manner which would be fit for habitation as a residential dwelling. However with regard to this counterclaim, under the UTPCPL, the "standard" must be agreed to in writing. Goldstein v. Bison Bede Ltd., 2009 WL 2710235 (E.D. Pa. 2009). See also, Com. v. Burns, 663 A.2d 308 at 311 (Pa.Cmwlth. 1995). An examination of Plaintiff's Exhibit #1 does have a section designated "Deli specifications and standards." Close examination of this portion of the exhibit however says absolutely nothing about the roof truss system. The only thing mentioned which even applies to the roof is that SBC would utilize "Elk 30-year architectural shingles." This Court finds that to prove a violation of §201-2(4)(xvi) of the UTPCPL utilizing Plaintiff's Exhibit #1 as the "writing," would require, for example that SBC used 2 x 4 lumber in the exterior construction, rather than the standard stated in the document which called for 2 x 6 lumber for exterior construction. In any regard, the Court finds there was no "standard" agreed to in writing, and accordingly, Defendant Seig cannot recover for this counterclaim under the UTPCPL. III. Breach of Warranty Westfield, who insured this construction project and is the subrogee of Seig, maintains that SBC breached their warranty that they would construct the roof truss system in a workmanlike, merchantable manner, and that the truss system would be fit for the purpose of supporting the finished roof. In Pennsylvania, the Courts have recognized that a builder, when contracting with a landowner to construct a residential home on the owner's land, impliedly warrants that the structure will be erected in workmanlike manner. Groff v. Pete Kingsley Bldg„ 19 Inc., 543 A.2d 128 (Pa. Super. 1988), In re Gordon Urmson Builder & Sons, Inc., 295 B.R. 546 (US Bkrtcy. W.D. Pa. 2003). The Court finds that SBC, at a minimum, impliedly warranted that their construction work, including construction of the roof truss system, would be done in a workmanlike manner and fit for the purpose for which it was intended. SBC, as a home construction company, knew the particular purpose for which the roof truss system was intended. Seig, as the buyer, relied on the skill and judgment of SBC to construct the roof truss system, in a manner such that it would support the home's roof and not fall down. SBC breached this warranty. The temporary bracing was clearly insufficient and did not meet with industry standards. Due to this insufficient bracing, the roof truss system collapsed. Without question this truss system was not constructed in a workmanlike manner. The breach of this warranty resulted in a loss to Westfield in the amount of $18,569.61. Ii. Negligence Westfield has filed a claim for negligence. "The prima facie elements of a negligence cause of action are: (1) a duty or obligation recognized by law; (2) a breach of the duty; (3) causal connection between the actor's breach of the duty and the resulting injury; and (4) actual loss or damage suffered by complainant." Cooper v. Frankford Health Care System Inc., 960 A.2d 134 (Pa. Super. 2008). This Court finds that SBC acted negligently in that they failed to properly install a safe roof truss system for Seig. SBC had both a duty and an obligation during the construction phase to properly brace the roof truss system in an adequate manner. SBC breached that duty by disregarding the industry standards and using clearly insufficient bracing for this roof truss system especially given that it was constructed during the winter season. As a direct result of this insufficient bracing, the roof truss system collapsed during a period of wind gusts. This collapse caused damage to Seig's property, which included the fallen and broken 20 roof trusses and some minor damage to the framed walls of the home. This damage resulted in an actual financial loss to Westfield in the amount of $18,569.61. Therefore, this Court finds that SBC acted negligently because they had a duty to properly brace and construct the roof truss system, they breached that duty by providing insufficient bracing, and the breach of the duty resulted in damage to Seig's property, and an actual financial loss to both Seig and Westfield. V. Unjust Enrichment "To sustain a claim of unjust enrichment, a claimant must show that the party against whom recovery is sought either "wrongfully secured or passively received a benefit that it would be unconscionable for her to retain." Roman Mosaic & Tile Co., Inc. v. Vollrath, 313 A.2d 305, 307 (Pa. Super. 1973). "In order to recover, there must be both (1) an enrichment, and (2) an injustice resulting if recovery for the enrichment is denied." Torchia on Behalf of Torchia v. Torchia, 499 A.2d 581, 582-83 (Pa. Super. 1985). SBC contends that Seig was unjustly enriched by the labor SBC expended in framing Seig's home before Seig terminated the contract. This Court finds that Seig was unjustly enriched. Seig has passively received a benefit that would be unconscionable for him to retain. Generally speaking the doctrine of unjust enrichment is inapplicable when the relationship between the parties is founded on a written agreement or express contract. Roman Mosaic & Tile Co., Inc. v. Vollrath, 313 A.2d 305, at 307 (Pa. Super. 1973). In this case, the Court has found that initially there was an express oral agreement between Seig and SBC. However the law does recognize that "where a party justifiably refuses to perform on the ground that his remaining duties of performance have been discharged by the other party's breach, the party in breach is entitled to restitution for any benefit that he has conferred by way of part performance or reliance in excess of the loss that he caused by his own breach." Restatement, 21 2"a, contracts §374. The illustrations provided in §374 of the restatement are remarkably similar to the fact scenario presented here. In this case, SBC orally agreed to frame Seig's house. Seig agreed to pay for this work. Because SBC breached the contract by failing to properly brace the roof trusses causing their collapse and damage, Seig was justified in terminating the construction contract. SBC has been held responsible for the loss caused by his own breach in that it must pay Westfield $18,569.61 and Craig Seig his $500.00 deductible on the Westfield policy for the total damages caused by SBC of $19,069.61. This Court has determined that SBC expended 425 hours of labor at a value of $19,125.00. From this sum, the amount of $6,217.23, the amount SBC retained from the initial $37,500.00 construction draw, must be deducted. Accordingly, the Court awards SBC the sum of $12,907.77 on its unjust enrichment claim. Accordingly the following order is entered: ORDER OF COURT AND NOW, this I" day of April, 2010, after nonjury trial in the above captioned matter, the verdict of the Court is as follows: 1. On Strickland Brothers Construction, LLC's claim of breach of contract by Seig (Plaintiff's Complaint, Count I) the Court finds in favor of Seig and against Strickland Brothers Construction, LLC. 2. On Strickland Brothers Construction, LLC's claim of unjust enrichment (Plaintiff's Complaint, Count II) the Court finds in favor of Strickland Brothers Construction, LLC and against Seig and awards the amount of $12,907.77. 22 3. On Seig's claim of breach of contract by Strickland Brothers Construction, LLC, (Defendant's Counterclaim, Count I) the Court finds in favor of Seig and against Strickland Brothers Construction, LLC, and awards damages in the amount of $500.00. 4. On Seig's claim of the violation 73 Pa.C.S.A. §201-2(4)(xvi) of the Unfair Trade Practices and Consumer Protection Law, (Defendant's Counterclaim Count II), the Court finds in favor of Strickland Brothers Construction, LLC, and against Seig. 5. On Westfield's claims of (1) breach of contract, (Westfield's Complaint, Count I), (2) breach of warranty, (Westfield's Complaint, Count II), and (3) negligence (Westfield's Complaint, Count III), the Court finds in favor of Westfield and against Strickland Brothers Construction, LLC, and awards damages in the amount of $18,569.61. By the Court, M. L. Ebert, Jr., J. Mark W. Allshouse, Esq. Attorney for Strickland Brothers Construction, LLC Paul M. Schofield, Jr., Esq. Paul F. D'Emilio, Esq. Attorneys for Westfield Insurance Company as Subrogee of Craig Seig John Pietrzak, Esquire Attorney for Craig Seig 23 FZD-P,, rF OF THE PRO'rr°+ONOTAPY Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant 2010 APR 15 PM 2= 41 CtM9rPL I"140 { OUI I PW&CV4NA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 06-2532 Civil Term CIVIL ACTION- LAW WESTFIELD INSURANCE COMPANY IN THE COURT OF COMMON PLEAS AS SUBROGEE OF CRAIG SEIG, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant NO. 08-0423 Civil Term CIVIL ACTION -LAW MOTION FOR POST-TRIAL RELIEF REQUESTING MODIFICATION OF DECISION AND NOW comes Plaintiff, Strickland Brothers Construction, LLC by and through its attorney, Mark W. Allshouse, Esquire and respectfully files this Motion for Post-Trial Relief Requesting Modification of Decision pursuant to Pennsylvania Rule of Civil Procedure 227.1. 1. Plaintiff, through its counsel, received notice of the filing of a Decision of the Court of Common Pleas of Cumberland County by Honorable Judge M.L. Ebert, Jr., Decision dated April 1, 2010 via first class mail received by the undersigned on Tuesday, April 6, 2010. Therefore, this Motion for Post-Trial Relief is being filed within ten (10) days of the notice of the Decision in this non jury trial matter. 2. Plaintiff's Motion for Post-Trial Relief is based upon the evidence and exhibits presented by Plaintiff at trial and set forth in their Findings of Fact and Conclusions of Law submitted to the trial Court prior to its written Decision. 3. The purpose of this Motion is to request the Court to change paragraph 2 of the Court's Decision as to Strickland Brothers Construction, LLC's claim of unjust enrichment (Plaintiff's Complaint, Count II) for the cost of materials. 4. In paragraph 2 the Court found in favor of Strickland Brothers Construction, LLC and against Seig in the amount of Twelve Thousand Nine Hundred Two and 77/100 Dollars ($12,907.77) which amount, according to the Court's Decision, was based upon the Court's determination as to the "legitimate amount of money owed to SBC for its framing of the home prior to the roof truss collapse". (Paragraph 1, page 13 of the Court's Decision). 5. Strickland Brothers Construction, LLC is not seeking a modification of the $12,907.77 amount awarded from the Court representing Strickland Brothers Construction, LLC's labor costs. 6. However, Plaintiff is requesting a modification in the amount awarded for Unjust Enrichment to Plaintiff because the Court's Decision fails to address either affirmatively or negatively Strickland Brothers Construction, LLC's request for an award in unjust enrichment for the materials purchased and services rendered and utilized in Defendant Craig Seig's home from Strickland Brothers Construction, LLC for which no payment or reimbursement was received. 7. The Court correctly found in its Decision that Strickland Brothers Construction, LLC received the first bank draw in the amount of Thirty-seven Thousand Five Hundred Dollars ($37,500) and used Thirty-one Thousand Two Hundred Eighty-two and 77/100 Dollars ($31,282.77) to pay its subcontractors and retained the remaining Six Thousand Two Hundred Seventeen and 23/100 Dollars ($6,217.23). (Last paragraph, page 12 of the Court's Decision). The Court further found that "thus the value of the labor expended by SBC up to and setting of the trusses is 425 at $45 an hour for a total of $19,125." (Court's Decision, third paragraph page 14). Thereafter, the Court credited Strickland Brothers Construction, LLC for the amount retained from the first draw in determining its final award of unjust enrichment of $12,907.77 for its labor. The Decision does not address Strickland Brothers Construction, LLC's additional unreimbursed material costs. 9. Evidence was presented at trial and post-trial that, among other expenses, Strickland Brothers Construction, LLC paid for the trusses from York PB Truss and the crane to set those trusses from its own business funds and that payment for those materials was not made from any portion of the first draw received from Commerce Bank or any other reimbursement. 10. The evidence presented to the Court in support of this proposition is as follows: a. Stipulation of Fact Nos. 15 and 16 which set forth the amount used from the first draw and the specific subcontractors paid, which do not include York PB Truss. b. Stipulation of Fact No. 17 which provides a clear inference that Craig Seig did not make a claim against Strickland Brothers Construction, LLC for the first set of trusses hung on the property because he did not pay for them. A copy of the Stipulations of Fact are attached hereto and made a part hereof as Exhibit "A". The first page of Plaintiff's Exhibit P3, being a breakdown of costs incurred by Strickland Brothers Construction, LLC and its calculation as to the amount that it was due. That breakdown clearly separates materials and subcontractor costs from labor costs. Subtracting out the subcontractors and materials paid from the first draw, g. Plaintiff s Finding of Fact No. 64 is consistent with the testimony and exhibits set forth herein and states that payment of the original truss materials which collapsed on January 21, 2006 were made by Plaintiff Strickland Brothers Construction, LLC for which they have not been reimbursed or otherwise compensated. A copy of the excerpted relevant Findings of Fact are attached hereto and made a part hereof for the Court's reference as Exhibit "D". 11. The result of the Court's Decision as it now exists is as follows: Strickland Brothers Construction, LLC, being found negligent and an award for damages to Westfield for the payment and re-setting of the second set of trusses, has caused Plaintiff to incur and be liable for twice the damages (paying for two sets of trusses and installation) for a single act of negligence. 12. The result of the current Decision is that Strickland Brothers Construction, LLC is required to pay for two sets of trusses for a single act of negligence, is not in direct correlation to the damages suffered and is more than compensatory. 13. As subrogee, Westfield stands in the shoes of Craig Seig, both having legally suffered the same damage and the same loss of a single set of trusses. 14. Defendant Craig Seig and his insurance carrier did not suffer two separate damages and, as such, should not receive separate damages for a single act of negligence. 15. Moreover, the result of the Decision, which requires Strickland Brothers Construction, LLC to pay for both the initial set of trusses and the second set of trusses, is that Defendant Craig Seig has neither paid the insurance company nor Strickland Brothers Construction, LLC for the trusses currently existing on his home. In effect, he has received free trusses while Strickland Brothers Construction, LLC has been caused to pay for both. 16. Had Strickland Brothers Construction, LLC completed the work and received the amount due under the contract, a portion of the amount due for the materials provided would have been payment for one set of trusses and Strickland Brothers Construction, LLC would have recouped the value of one set of trusses for which it now must pay. 17. As a result of the Court's Decision, Craig Seig has been unjustly enriched in that he has retained the use, benefit and value of a set of trusses for which he has not paid. 18. It is believed this was not the Court's intended result as it is contrary to justice and equity. 19. Plaintiff respectfully requests this Court to reevaluate and reconsider its award of unjust enrichment and to award Plaintiff the additional amount of materials expended toward the purchase and installation of the original set of trusses and construction on Seig's home, for which no reimbursement has been received, in the amount of $10,890.04. WHEREFORE, Plaintiff respectfully requests this Honorable Court to modify its award of unjust enrichment and to award Plaintiff the amount of $10,890.04 along with any additional relief the Court may deem just and appropriate. Date: 16 10 Respectfully submitted, Mark W. Allshousf, Esquire Attorney I.D. # 78014 4833 Spring Road Sherman Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff 6 Exhibit "A" STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff v- CRAIG SEIG, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-2532 CIVIL TERM WESTFIELD INSURANCE COMPANY IN THE COURT OF COMMON PLEAS AS SUBROGEE OF CRAIG SEIG CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v- STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant NO. 08-0423 CIVIL TERM STIPULATIONS OF FACT 1. On September 11, 2005, Jeff Strickland and Craig Seig met at Jeff Strickland's house to review plans and proposals for construction of a residential home at Lot No. 6, Longs Gap Road, Carlisle, Pennsylvania and to discuss the scope of each party's work. 2. During their meeting on September 11, 2005, Craig Seig was advised that both. Jeff Strickland and Matthew Strickland would be taking vacation during November 2005. 3. On September 26, 2005, settlement on the construction loan to Craig Seig from Commerce Bank was completed. 4- Craig Seig was responsible for the scheduling of, and retained control over, the excavation of the foundation for the home through his excavator, Mike Neidig. 5. On November 16, 2005, Peifer Construction began pouring the footers for the foundation- 6. On November 19, 2005, the footers were complete. %. On November 29, 2005, Peifer Construction began to pour the walls. 8. On December 1, 2005, walls were finished by Peifer Construction. 9- Trusses were set by Strickland Brothers Construction, L.LC on January 20, 2006. 10. The trusses fell on January 21, 2006. The cause of the collapse is in dispute. 1 I . The trusses fell at or around 1:00 p.m. to 2:00 p.m. on January 21, 2006. 12. Strickland Brothers was not invited back on site and did. not perform any work after the .la.nuar;% 26, 2006 notice of termination. 1.3. Craig Seig's father videotaped the hanging of the trusses on the home. The videotape is now unavailable for use at trial because it was inadvertently erased. 14. Strickland Bros. received the first construction draw in the amount of $37,500.00. 15. Strickland Bros. used $311,282.77 from the first construction draw to pay its subcontractors, leaving a balance of $6,217.23, which Strickland Bros. retained. 16. Strickland Bros. paid the following subcontractors from the first construction draw: Peifer Const. $5,966.09 Peifer Const. $15,170.79 Trout ]Foundation $336.96 Clouse $1,291.05 Myers $7,326.07 Myers $906.17 Myers $202.99 Myers $82.65 17. Craig Seig is not seeking recovery from Strickland Bros. for the $16,284.00 cost stated in Paragraph 45 of his Counterclaim, for having another contractor purchase and set the second set of trusses. Exhibit "B" Strickland Brothers Construction, LLC Registe : Craig custom. From 01/01/2006 through 04/17/20)06 Sorted bar: Date, T ype, Number/Ref Date Ref. Payee Account 01/06/2006 2274 Clouse Crane Servic... Orrstown Bank [split] 01106/2006 2275 Peifer Construction, ... Orrstown Bank 01/(X/2006 2276 Trout Foundation Sp... Oirstow-n Bank 01/17/2006 2290 John H. Myers & Son O rstown (Bank [split! 02110512006 2310 John H. Myers & Son CNrstoAm Bank [split] 02/05/2006 2317 Clouse Crane Servic__ Orrstown Bank [split] 02/08/2006 2323 Wickes Lumber Orrstown Bank [split] 03/fA/2006 2352 York PB Truss; Inc Orrstown Bank Menlo Decrease C 4i 17/2006 Increase Balance 1,291.05 1,291.05 21,136.88 22,42 7.93 ?36.96 22,764.89 8 5 i 7.88 31;282.77 2,291.00 33,573.77 866.55 34,440.32 543.28 34,983.60 9,758.16 44,741.76 x yV77`111 7e, 65/0. / sf QWoJ ? 37, Soo . °' Duc> G `? Ar 30 Sg Page I n 9 i ^4 Exhibit "C" 0211A 2005 15:19 17177328577 02/02/2008 le-18 FAX 717 734 ,88 FACSIMILE To, Craig 8eig, Fax: (117) 732-8208 MECHANICAL DEPT5X READER & ADLER Re: Responselsettlement proposal from SBC Pages- , including this cover sheet. Vate: ebzu QQ2, 6 PAS 04 ?003, Attached please fund a letter fkom SBC's attorney, He, has included docamotezWjon showing the xlloesdon of the original $37,500 draw, showing a credit due to you oa that draw of $6,217.23. Also included are unpaid invoices, including one for the ttttsaea. SHC stUcW an invoice fbr their framing costs, including time fb r settling the trusses. BBC's invoice does not breAk the total tuna down m sbotiw how much time was involved in the truss woxk. Please zeview the docu mcntation and go over it with commerce Batik if necesssty: Let= know stow you and/or Commtme Bank want to respond. I placed a cast to SBC'3 attomey and requested to know whether SBC waazted the trusses. 1 also called your kma33= cotnpacny TO make sure they dicltz't bave a problem with you disposing of, the Trusses or SBC taking thew. I have not received a call back fmm either SBC's lawyer or the insuzxtntce company yet. The 5400 cha W so far for legal fees included he initial review of docunwas and draftg of a; the tc in8tion letter to SBC. Ifyou would like us to fallow up on this settlementproposal fhxn X SBC, we will Aced to bill you 2d the hourly rates set forth in om reudner letter- IFaom zny brief preview of the W ached letter and doo=eaM if you =btract out tw amount pa?d?' for the trusses and the likely amount of time to set the trusses, the mount pretty close to what you thought SBC was owed. Please advise how you w? th probably p=eed. Please call Jvhhin Piatiiak at (717) 763-1383 if there is mW problem 3q tt=sta g2iM Tk inforamalt "tot WKat to tbfs tddxCW"d a u trWmWtkd AY Ss'&VXtty, Tt 10 Prfv"Wd Md tot?tidettifst, fm0eede4 ,A for tee 4ax of the tadP4daat oar eaut4ty tstatt?eq ebore, Ifthe "MOW dftlhis It ttae2tRe pdesatpiemt pea to a ketcb? notified that any taogtttaoffoza dLwA M0*n or eopftat'tMs eonmr WOW" Us"* prWbaq& tf tli0 "W=W att3oa has Oecn i'oaeivad iaa etrotr, pttaazc iaatueetatat? aiDy telepdant; cegtetiftteta?ty, tmd txxttrs ttu tati?st tttct5ttgc sn US stt d* 9bore addrtss WA Me U.B. y49W SV"ce (we wttt retmbuase p*AW), -Tb"k you. .tram Inn COOK oz:., lobe H- Pietr2ak BsQuire Reager &t Adler, PC 2331 Market Street Cazap Silt, FA 17011 717-763-1383 Fox: 717-730-7366 ,ECEIVEC THE FEB. 17. 3:21PM Exhibit "D" 17. A bank account was established in the name of Strickland Brothers Construction, LLC for the purpose of receiving construction draws from Commerce Bank, 18. Payment for materials and labor for the construction of the house was to be made by Strickland Brothers Construction, LLC to the respective subcontractors, including Seig and his subcontractors- 19_ Strickland Brothers Construction, LLC received the initial draw in the amount of $37,500_ (Stipulation ## 14.) 20. From the initial draw, Strickland Brothers Construction, LLC paid subcontractors for materials and labor provided for the construction of the home in the amount of $31,282.77 leaving a $6,21723 balance on the first draw to Defendant. (Stipulation f 16) 21. Strickland Brothers have not retained any additional monies nor have they been paid any additional monies by Seig, despite request. 22. Strickland Brothers have actually paid $48,390.04 out of pocket for materials and labor actually used or provided in construction of Defendant's home, leaving a deficit of $10,890.04, which amount does not include Plaintiff's labor for framing in the amount of $22,725.00_ (See Exhibits P-3 and P-4.) 23. Strickland Brothers were terminated by Defendant by written letter of sanuary 26, 2006, which letter acknowledged the contract between Plaintiff and Defendant executed on September 26, 2005. (See Exhibit D-4_) 24_ At the time of termination, Strickland Brothers had not been paid for the work performed in framing the decking and walls of the house, or the cost of labor and materials for setting of the roof trusses. 25_ Plaintiff testified that Plaintiff was required to attempt to reconstruct and remember the ratan hours utilized in framing of the subject property and that the amount requested was not exact, but was Plaintiff's best estimate and based upon Plaintiff s standard hourly rate. 26_ Plaintiff acknowledged that the dates on the reconstructed labor time estimate were best estimates, but that the amount of time was generally consistent with the amount of time it would take to frame a house of that size and used as a reference a similar home of structure and design which bad been done several months earlier and shorn to Defendant. 27. Exhibit P-15 confirms that seven days after terminating the Agreement, Seig and his counsel believed the estimated hours for labor to be "probably pretty close." 62, Plaintiff testified that the reason for the shift of responsibility was that owner was going to use subcontractors with whom Plaintiff was not familiar and would not ensure. 63. There was no evidence presented which contradicted the written statement that Defendant was required to obtain all insurances. 64. ]Payment for the original truss materials which collapsed on January 22, u 2006 was made by plaintiff Strickland Brothers Construction, LLC for which they have `f not been reimbursed. 1 B Conclusions of Law Pennsylvania Appellate Courts have clearly addressed the issue of whether a contract can prevent an owner can prevent from pursuing a claim against a contractor or subcontractor for damage allegedly caused by such subcontractor if the damage is covered by property insurance which the owner was required to obtain. Jalapenos, LLC v. GRC General Contractor Inc.. 939 A..2d 925 (Pa_ Super- 2007). Typically, the courts in interpreting such provisions looked at the intent of the parties in allocating risk of the first party property loss. Specifically, courts are looking for indications that the parties have shifted the risk of first party property loss from one to the other or from one another to an insurance company. Id. The courts have stated that "because it is economically insufficient for both parties to insure against the same risk, the parties' inclusion of an insurance procurement clause indicates the parties intended to avoid both parties having to face potential liability for the same risk." Id. The Superior Court in the Jal4penos matter follow closely the reasoning of the Missouri Court of Appeals case of Nodaway Valley Bank v. B.L. Crawford Construction Inc., 126 &W- 3d 820 (loo. App. 2044). In reviewing that case, the Jalapenos Court noted that if the parties had a intent contrary than to relieve each other from Liability and look only to one insured to bear the risk, there each party would be responsible for obtaining their own insurance policies and it would be unnecessary for the contract to indicate a duty to obtain insurance covering both parties' interests on one of the parties. The court further noted that several cases have reached the same conclusion that parties may contract away the risk of first party property loss relying upon the presence of an insurance procurement clause alone, without the need for additional language; such as a subrogation of waiver clause- While there is a clear distinction: between the complex A.IA. form contract as set forth in the Jalapenos case and the simple statement that Defendant Seig is to obtain all insurances, the reasoning of the Jalapenos Court and the unambiguous indication that there was a clear intention to shift the risk of loss from one party to the other is present in the instant matter. Clearly, because both parties agreed that Craig Seig as owner would be performing work on the property, the intention of the parties was to shift the normal burden from Strickland Brothers to Seig. That shift and clause requiring Seig to obtain all insurances, having knowledge of the building industry and insurances necessary, was executed by Seig on the date of closing showing his 1 S agreement therefore- As a result, it is Seig's insurance that must bear the loss, even the specific loss contemplated. Seig has acknowledged that he was to carry insurance to cover other losses, such as vandalism or loss by fire, during the course of construction of the project. A loss by wind gust is no different. As such, it is Craig Seig and his insurance company who bear the loss alleged. In the event makes a determination that there was negligence as alleged by Seig and Westfield, their right to recovery is barred because the allocation of risk of loss is present within, the written agreement of the parties. As a result, both Craig Seig and Westfield's claim of damages for lost trusses must be denied. In the alternative, in the event the Court does not follow Plaintiff's legal argument A.vith regard to subrogation as set forth above, it should be noted that Plaintiff has already paid for the original set of trusses which were placed on the Seig residence and have not been reimbursed therefore. While Craig Seig was provided money to purchase new trusses from his insurance company, he never paid Plaintiff for the original set. As a result, even if Plaintiff is found liable, the insurance company may only look to their insured for recovery. Plaintiff has already paid for a set cf trusses- The undersigned believes that there is no theory of law which would entitle Westfield Insurance Company to collect additional monies from Strickland Brothers Construction for a second set of trusses unless they have been paid by Seig. Otherwise, the result would be to double charge Plaintiff for trusses while !Defendant Seig has never paid for any trusses used to build his home. While a cause of action may arise where Plaintiff is responsible for the damages caused for replacement of the original set of trusses, that replacement responsibility is contingent upon Plaintiff having been paid for that original set. Craig Seig has a home which has been constructed with trusses, but has not, to date, paid a cent out of pocket to either Strickland Brothers Construction or Westfield Insurance Company for those trusses. Clearly, the Court's remedy in this matter must address the fact that Craig Seig is not entitled to "free" trusses and that his payment responsibility for materials used in the construction of his house roust be addressed either to Strickland Brothers or Westfield Insurance- Respectfully submitted, Date. _ - .?%? %-/ /1 ?1 ???•?r ?? Mark W- Allshouse?Esquire %'Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Strickland Brothers Construction, LLC I !_ STRICKLAND BROTHERS IN THE COURT OF COMMON PLEAS CONSTRUCTION, LLC, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 06-2532 Civil Term CRAIG SEIG, Defendant : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, addressed as follows: The Honorable M.L. Ebert, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 John H. Pietrzak, Esquire REAGER & ADLER 2331 Market Street Camp Hill, PA 17011-4642 Paul M. Schofield, Jr., Esquire 905 West Sproul Road Suite 105 Springfield, PA 19064 Respectfully submitted, Date: 4411510 ark W. Allshouse, E ui /Atty. I.D. # 78014 4833 Spring Road Sherman Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff c.< F THE R' ?"`0TAPY Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant 2010 APR 20 Ali €0: 23 CUM6;Ei L- L-) t Uf 11' i'EN1 SYl_V/kN A : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2532 Civil Term ? : CIVIL ACTION- LAW WESTFIELD INSURANCE COMPANY IN THE COURT OF COMMON PLEAS AS SUBROGEE OF CRAIG SEIG, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant NO. 08-0423 Civil Term : CIVIL ACTION -LAW NOTICE OF APPEAL Notice is hereby given that Strickland Brothers Construction, LLC, Plaintiff above-named to Civil Action 2006-2532 and Defendant above-named to Civil Action 2008-0423, hereby appeals to the Superior Court of Pennsylvania from the original Order entered on April 1, 2010 in the above matter, which was consolidated for trial. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. Date: 1 _qC1) 1o Respectfully submitted, ark W. Allshous, squire Attorney I.D. # 78; 4 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff &0 X179 R# 111U?1c(o Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 5824006 Attorney for Plaintiff STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 06-2532 Civil Term CRAIG SEIG, Defendant CIVIL ACTION- LAW WESTFIELD INSURANCE COMPANY IN THE COURT OF COMMON PLEAS AS SUBROGEE OF CRAIG SEIG, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant : NO. 08-0423 Civil Term CIVIL ACTION -LAW REQUEST FOR TRANSCRIPT A Notice of Appeal having been filed in this matter, the Official Court Reporter is hereby Ordered to produce, certify and file the transcript in this matter conforming with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. Respectfully submitted, Date: 0 ark W. Allsho se, Esquire Attorney I.D. # 8014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2006-02532 STRICKLAND BROTHERS CONST (vs) SEIG CRAIG Reference No... Filed........; 5/05/2006 Case Type...... COMPLAINT Time. .... . 9.54 Judgment..... .00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info STRICKLAND BROTHERS PLAINTIFF ALLSHOUSE MARK W CONSTRUCTION LLC 623 CREEK ROAD CARLISLE PA 17013 SEIG CRAIG DEFENDANT CLO JOHN H PIETRZAK ESQUIRE REEAGER & ADLER 2331 MARKET ST CAMP HILL PA 17011 4642 116 WINCHESTER GARDEN A APARTMENTS CARLISLE PA 17013 ******************************************************************************** * * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 5/05/2006 COMPLAINT - CIVIL ACTION ------------------------------------------------------------ 5/10/2006 CERTIFICATE OF SERVICE - COMPLAINT - BY MARK W ALLSHOUSE ATTY ------------------------------------------------ 6/01/2006 DEFENDANT'S ANSWER WITH NEW MATTER AND COUNTERCLAIM - BY JOHN H PIETRZAK ATTY --------------------------------------------------------------- 6/09/2006 PLFF'S REPLY TO DEFT'S NEW MATTER AND ANSWER TO COUNTERCLAIM - BY MARK W ALLSHOUSE ATTY FOR PLFF ------------- 6/19/2006 PRAECIPE TO ATTACH THE OMITTED EXHIBIT "B" TO DEFT'S ANSWER WITH NEW MATTER AND COUNTERCLAIM TO PLFF'S COMPLAINT - BY JOHN H PIETRZAK ATTY ----------------------------------------------------------------- 1/17/2008 PRAECIPE FOR LISTING CASE FOR TRIAL - BY MARK W ALLHOUSE ATTY FOR PLFF ------------------------------------------------------------------- 1/23/2008 ORDER OF COURT - 1/23/08 IN RE: NON JURY TRIAL IN THE ABOVE REFERENCES CASE HAS BEEN ASSIGNED TO THIS COURT - PRIOR TO SETTING AN ACTUAL TRIAL DATE - HEREBY ORDERED AND DIRECTED THAT THE PARTIES IN THIS CASE FILE A PRETRIAL MEMORANDUM WITH THE COURT ON OR BEFORE 2/13/08 IN THE FOLLOWING FORMAT 1- A CONCISE STATEMENT OF FACTUAL ISSUES TO BE DECIDED AT TRIAL 2- A LIST OF WITNESSES THE PARTY INTENDS TO CALL AT TRIAL ALONG WITH A CONCISE STATEMENT OF THEIR ANTICIPATED TESITMONY 3- A LIST OF ALL EXHIBITS EACH PARTY ANTICIPATES PRESENTING AT TRIAL 4- A STATEMENT OF ANY LEGAL ISSUES EACH PARTY ANTICIPATES BEINGJ RAISED AT TRIAL ALONG WITH COPIES OF ANY CASES WHICH MAY BE RELEVANT TO RESOLUTION OF THE STATED ISSUE 5- AN ESTIMATE OF THE ANTICIPATED TIME NEEDED FOR THE PARTY TO PRESENT ITS CASE - UPON RECEIPT AND REVIEW OF THESE MEMORANDUMS THE COURT WILL SET A TRIAL DATE FOR THIS CASE - BY M L EBERT JR J - COPIES MAILED 1/23/08 ------------------------------------------------------------------- 2/13/2008 ORDER OF COURT - 212/08 IN RE: THE COURT HAVING BEEN ADVISED THAT ANOTHER SUIT HAS B EN FILED BY WESTFIELD INSURANCE COMPANY WHICH MAY NEED TO BE CONSOLIDATED WITH THE ABOVE CAPTIONED MATTER - IT IS HERBEY ORDERED AND DIRECTED THAT THIS COURT'S PREVIOUS ORDER OF 1/23/08 IS RECINDED - IT IS FURTHER ORDERED AND DIRECTED THAT A STTAT S CONFERENCE ON THIS CASE TO INCLUDE COUSNEL REPRESENTING WESTFIELD INSURANCE COMPANY WILL BE HELD ON 4/29/08 AT 3:30 PM IN CR5 OF THE CUMBERLAND COUNTY COURTHOUSE - BY M L EBERT JR J - COPIES MAILED 2/13/08 ------------------------------------------------------------------- 4/30/2008 ORDER OF COURT - 4/29/08 - AFTER STATUS CONFERENCE WITH COUNSEL PYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2006-02532 STRICKLAND BROTHERS CONST (vs) SEIG CRAIG Reference No... Filed........: 5/05/2006 Case Type...... COMPLAINT Time. .... . 9.54 Judgment..... .00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: AND IT APPEARING THAT ALL PARTIES AGREE TO CONSOLIDATION OF THESE CASES FOR TRIAL - IT IS HEREBY ORDERED AND DIRECTED THAT A- ALL DISCOVERY IN THESE CASES WILL BE COMPLETED ON OR BEFORE 7/30/08 B- PRE TRIAL MOTIONS IN THIS MATTER SHALL BE FILED AND THE MOTIONS SET DOWN FOR ARGUMENT ON OR BEFORE 8/14/08 ARGUMENT OF ANY PRE TRIAL MOTIONS WIL BE HELD AT ARGUMENTT COURT ON 3/08 C- ALL PARTIES WILL FILE A PRE TRIAL MEMORANDUM WITH THE COURT ON OR BEFORE 9/25/08 IN THE FOLLOWING FORMAT 1- A CONCISE STATEMENT OF FACTUAL ISSUES TO BE DECIDED AT TRIAL 2- A LIST OF WITNESSES THE PARTY INTENDS TO CALL AT TRIAL ALONG WITH A CONCISE STATEMENT OF THEIR ANTICIPATED TESTIMONY 3- A LIST OF ALL EXHIBITS EACH PARTY ANTICIPATES PRESENTING AT TRIAL 4- A STATEMENT OF ANY LEGAL ISSUES EACH PARTY ANTICIPATES BEING RAISED AT TRIAL ALONG WITH COPIES OF ANY CASES WHICH MAY BE RELEVANT TO RESOLUTION OF THE STATED ISSUE 5- AN ESTIMATE OF THE ANTICIPATED TIME NEEDED FOR THE PARTY TO PRESENT ITS CASE - D- TRIAL OF THIS MATTER WILL BE HELD AT 9:00 AM ON 10/3/08 IN CR5 CUMBERLAND COUNTY COURTHOUSE - BY M L EBERT JR J - COPIES MAILED 4/30/08 ------------------------------------ ------------------------------ 10/06/2008 ORDER OF COURT - 106/08 - AFTER THE FIRST DAY OF TESTIMONY IN THE NON JURY TRIAL IN THIS MATER IS APPEARS THAT POSSIBLE 2 MORE DAYS WILL BE NEEDED - IT IS HEREBY ORDERED AND DIRECTED THAT THE CONTINUATION OF THE NON JURY TRIAL WILL BE HELD ON 2/18/09 AT 9:00 AM AND 2/20/09 AT 9:00 AM IN CR5 CUMBERLAND COUNTY COURTHOUSE - BY M L EBERT JR J - COPIES MAILED 10/6/08 ----------------------------------------------------- ------------- 4/01/2010 OPINION AND ORDER OF COURT DATED 04-01-10 IN RE NON JURY TRIAL - VERDICT OF THE COURT AFTER THE NONJURY TRIAL - BY THE COURT ML EBERT JR J - COPIES MAILED 04-01-2010 ------------------------------------------------------------------- 4/15/2010 MOTION FOR POST TRIAL RELIEF REQUSTING MODIFICATION OF DECISION - BY MARK W ALLHOUSE ATTY FOR PLFF - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beq*Bal Pmts/Ad' End Bal ******************************** ******* ****** ******************************* COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 SUBPOENA 12.00 12.00 .00 PRAECIPE TRIAL 25.00 25.00 .00 SUBPOENA 24.00 24.00 .00 SUBPOENA 18.00 18.00 .00 ------------------------ ------------ 134.50 134.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD in T..W. y whwed,1 hers unto sit 09 ?ho d end tM d sdd at 20 This d@l d psotlgr?darY PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2008-00423 WESTFIELD INSURANCE CO (vs) STRICKLAND BROS CONSTRUCTION Reference No..: Filed........: 1/18/2008 Case Type...... COMPLAINT Time. 12 27 Judgment......: .00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info WESTFIELD INSURANCE COMPANY PLAINTIFF D'EMILIO PAUL F SUB P 0 BOX 5001 WESTFIELD CENTER OH 44251 5001 SEIG CRAIG PLAINTIFF D'EMILIO PAUL F STRICKLAND BROTHERS DEFENDANT CONSTRUCTION LLC 621 CREEK ROAD CARLISLE PA 17013 ******************************************************************************** * * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 1/18/2008 COMPLAINT FILED BY PAUL F D'EMILIO ESQ FOR PLFF ------------------------------------------------------------ 1/24/2008 S Cse T: HERIFF'S FILE RETURNED FILED. qq BROTHERS CONSTRUCTIONRLLClar Litigant.: STTRI KILAND& yypp Address..: 623 CREEK ROAD Ctyy/St/Z • CARLISLE, PA 17013 Hnd To: BREE HARVEY, SECRETARY, ADULT IN CHARGE Shf/D ty.: MARK CONKLIN Date/ Time: 01/23/2008 0900:00 Costs....: $32.80 Pd By: PAUL E'EMILIO 01/24/2008 --------------------------------------------------------------- 2/13/2008 DEFENDANT'S ANSWER WITH NEW MATTER - BY MARK W ALLSHOUSE ATTY FOR DEFT ------------------------------------------------------------------- 2/13/2008 COMPLAINT JOINING ADDITIONAL DEFT CRAIG SEIG PURSUANT OT PENNSYLVANIA RULE OF CIVIL PROCEDURE 2229 - BY MARK W ALLHOUSE ATTY FOR DEFT ----------------------------------------------------- _ ------------- 2/13/2008 ORDER OF COURT - 2/12/08 IN RE: THE COURT HAVING BEEN ADVISED THAT ANOTHER SUIT HAS BEEN FILED BY WESTFIELD INSURANCE COMPANY WHICH MAY NEED TO BE CONSOLIDATED WITH THE ABOVE CAPTIONED MATTER - IT IS HEREBY ORDERED AND DIRECTED THAT THIS COURT'S PREVIOUS ORDER OF 1423/08 REQUIRING THAT THE PARTIES FILE PRETRIAL MEMORANDUM WITH THE COURT ON OR BEFORE 2113/08 IS RESCINDED - IT IS FURTHER ORDERD AND DIRECTED THAT A STATUS CONFERENCE ON THIS CASE TO INCLUDE COUNSEL REPRESENTING WESTFIELD INSURANCE COMPANY WILL BE HELD ON 4 29 08 AT 3:30 PM IN CRS CUMBERLAND COUNTY COURTHOUSE - BY M L EBERT JR J - COPIES MAILED 2/13/08 ------------------------------------------------------------------- 3/06/2008 ACCEPTANCE OF SERVICE - COMPLAINT JOINING ADDITIONAL DEFENDANT CRAIG SEIG - BY JOHN H PIETZRAK ESQ FOR DEFT ------------------------------------------------------------------- 3/11/2008 ANSWER AND NEW MATTER OF CRAIG SEIG ADDITIONAL DEFT TO THE COMPLAINT JOINING ADDITIONAL DEFT FILED BY STRICKLAND BROTHERS CONSTRUCTION LLC - JOHN H PIETRZAK ATTY FOR ADDITIONAL DEFT CRAIG SEIG ------------------------------------------------------------------- 3/20/2008 DEFENDANT'S REPLY TO ADDITIONAL DEFT'S NEW MATTER - BY MARK W ALLSHOUSE ATTY FOR DEFT STRICKLAND BROTHERS CONSTRUCTION LLC ------------------------------------------------------------------- 4/30/2008 ORDER OF COURT - 4/29/08 - AFTER STATUS CONFERENCE WITH COUNSEL AND IT APPEARING THAT ALL PARTIES AGREE TO CONSOLIDATION OF THESE CASES FOR TRIAL - IT IS HEREBY ORDERED AND DIRECTED THAT A- ALL DISCOVERY IN THESE CASES WILL BE COMPLETED ON OR BEFORE 7/30/08 B- PRETRIAL MOTIONS IN THIS MATTER SHALL BE FILED AND THE MOTIONS PYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2008-00423 WESTFIELD INSURANCE CO (vs) STRICKLAND BROS CONSTRUCTION Reference No..: Filed........: 1/18/2008 Case Tyyppe..... . COMPLAINT Time. .... . 12:27 Judgment..... .00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: SET DOWN FOR ARGUMENT ON OR BEFORE 8/14/08 ARGUMENT OF ANY PRETRIAL MOTIONS WILL BE HELD AT ARGUMENT COURT ON 93/08 C- ALL PARTIES WILL FILE A PRETRIAL MEMORANDUM WITH THE COURT ON OR BEFORE 9/2508 IN THE FOLLOWING FORMAT 1- A CONCISE STATEMENT OF FACTUAL ISSUES TO BE DECIDED AT TRIAL 2- A LIST OF WITNESSES THE PARTY INTENDS TO CALL AT TRIAL ALONG WITH A CONCISE STATEMENT OF THEIR ANTICIPATED TESTIMONY 3- A LIST OF ALL EXHIBITS EACH PARTY ANTICIPATES PRESENTING AT TRIAL 4- A STATEMENT OF ANY LEGAL ISSUES EACH PARTY ANTICIPATES BEING RAISED AT TRIAL ALONG WITH COPIES OF ANY CASES WHICH MAY BE RELEVANT TO RESOLUTION OF THE STATED ISSUE 5- AN ESTIMATE OF THE ANTICIPATED TIME NEEDED FOR THE PARTY TO PRESENT ITS CASE - D- TRIAL OF THIS MATTER WILL BE COURTHOUSE/- BY M ONJR10/3/0COPIES8 IN EDE4/ 0/080UNTY --------------------------------------------- -------- 10/06/2008 ORDER OF COURT - 1016/08 - AFTER THE FIRST DAY OF TESTIMONY IN THE NON JURY TRIAL IN THIS MATTER IT APPEARS THAT POSSIBLY 2 MORE DAYS WILL BE NEEDED - IT IS HEREBY ORDERED AND DIRECTED THAT THE CONTINUATION OF THE NON JURY TRIAL WILL BE HELD ON 2/18/09 AT 9:00 AM AND 2/20 /09 AT 9:00 AM IN CR5 CUMBERLAND COUNTY COURTHOUSE - BY M L EBERT JR J - COPIES MAILED 10/6/08 ----------------------------------------------------- ------------- 4/01/2010 OPINION AND ORDER OF COURT DATED 04-01-10 AFTER A NONJURY TRIAL THE VERDICT OF THE COURT - ML EBERT JR J - COPIES MAILED 04-01-10 -------------------------------------------------------------- ---- 4/15/2010 MOTION FOR POST TRIAL RELIEF REQUESTING MODIFICAITON OF DECISION - BY MARK W ALLSHOUSE ATTY FOR PLFF - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beq**Bal Pmts/Ad' End Bal ******************************** ******* ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 ------------------------ ------------ 78.50 78.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD I hw.* ? set "N two v,d»,eott;=gaky in Testimony OWthe of aid TM. dw of 5e? le 94 Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2532 Civil Term : CIVIL ACTION- LAW WESTFIELD INSURANCE COMPANY IN THE COURT OF COMMON PLEAS AS SUBROGEE OF CRAIG SEIG, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant NO. 08-0423 Civil Term : CIVIL ACTION -LAW CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the date indicated below, I caused the foregoing Notice of Appeal, by U.S. Mail to the following persons, addressed as follows: Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 The Honorable M.L. Ebert, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Date: IfPV//0 Official Court Reporter Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Paul M. Schofield, Jr., Esquire 905 West Sproul Road Suite 105 Springfield, PA 19064 John H. Pietrzak, Esquire REAGER & ADLER 2331 Market Street Camp Hill, PA 17011-4642 ?GC/• ark W. Allshous , Esquire Atty. I.D. # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff %dot .--•4t IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYIRAMM K -V C= m NO. 06-2532 CIVIL TERM`'' _0 C: C"? CIVIL ACTION - LAW c IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-0423 CIVIL TERM CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 21St day of April, 2010, the Court being in receipt of a notice of STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff V. CRAIG SEIG, Defendant WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff V. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant appeal in the above captioned matter, IT IS HEREBY ORDERED AND DIRECTED that: 1. Plaintiffs file a concise statement of the errors complained of on before May 12, 2010; 2. The Statement shall be filed of record; 3. The Statement shall be served on this Court pursuant to Pa.R.A.. 1925(b) (1); f .- ** IT IS FURTHER ORDERED AND DIRECTED that any issue not properly included in the Statement shall be deemed waived. By the Court, M. L. Ebert, Jr., ,'-?Mark W. Allshouse, Esq. Attorney for Strickland Brothers Construction, LLC /Paul M. Schofield, Jr., Esq. Paul F. D'Emilio, Esq. Attorneys for Westfield Insurance Company as Subrogee of Craig Seig hn Pietrzak, Esquire Attorney for Craig Seig bas QT-f` ,'.z(Lj, IV/14 -k/ to STRICKLAND BROTHERS CONSTRUCTION, LLC, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CRAIG SEIG, DEFENDANT NO. 06-2532 CIVIL WESTFILED INSURANCE COMPANY IN THE COURT OF COMMON PLEAS OF AS SUBROGEE OF CRAIG SEIG CUMBERLAND COUNTY, PENNSYLVANIA P.O. BOX 5001 WESTFIELD CENTER, OH 44251-5001 PLAINTIFF V. n q STRICKLAND BROTHERS r . -71 CONSTRUCTION, LLC., ! - ` ,ice 621 CREEK ROAD ?'i • o CARLISLE, PA 17013 Cs DEFENDANT NO. 08-0423 CIVIL T ra ,. y ORDER OF COURT C.) AND NOW, this 30th day of April, 2010, upon consideration of Strickland Brothers Construction, LLC's Motion for Post Trial Relief requesting Modification of Decision, IT IS HEREBY ORDERED AND DIRECTED that the Motion is DENIED. M. L. Ebert, Jr., -, Mark W. Allshouse, Esquire Attorney for Plaintiff John H. Pietrzak, Esquire Attorney for Defendant ./Paul M. Schofield, Jr., Esquire Attorney for Westfield Insurance Company Court Administrator - FSA, S '41-441 0 bas By the Court, r' Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717)582-4006 Attorney for Plaintiff STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff v. CRAIG SEIG, Defendant Zil 10 JUN - ~ PN 1 ~ G b Ct1M ~-i~~s`•~L;i :.0i.i~liY ~1ti..V~l1A 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2532 Civil Term CIVIL ACTION- LAW WESTFIELD INSURANCE COMPANY IN THE COURT OF COMMON PLEAS AS SUBROGEE OF CRAIG SEIG, :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant NO. 08-0423 Civil Term CIVIL ACTION -LAW PRAECIPE FOR ENTRY OF FINAL JUDGMENT TO THE PROTHONOTARY: Kindly enter final judgment in the above-referenced matters pursuant to Judge Ebert's Order of April 1, 2010 and the Court's April 30, 2010 denial of Plaintiff s Request for Post-Trial Relief. Date: ~~~ ~~~~ ark W. Allshous ,Esquire Atty. LD. # 7801 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff $1'x.00 Ap A7y^l ~~ aaas ~~ ~laRaa ~lakee lan~ual ,_. STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff v. CRAIG SEIG, Defendant APPEAL TO THE PENNSYLVANIA SUPERIOR COURT DOCKET NO. 674 MDA 2010 CIVIL ACTION- LAW WESTFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff v. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant APPEAL TO THE PENNSYLVANIA SUPERIOR COURT DOCKET NO. 674 MDA 2010 CIVIL ACTION -LAW CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following by depositing a copy of the same in the United States Mail, first-class, postage prepaid, addressed as follows: Paul M. Schofield, Jr., Esquire 905 West Sproul Road Suite 105 Springfield, PA 19064 Thomas O. Williams, Esquire REAGER & ADLER 2331 Market Street Camp Hill, PA 17011-4642 Date: ~ ! f~2O~'a 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff ark W. Allshouse, quire try. I.D. # 78014 ~`n~ ~ t~l~i ~ ~. L..L(~ vs. w In the Court of Common Pleas of CumUerland County, Pennsylvania No. ~0' ~- ~~%~:~.,. Civil. C,\V of ~~tt7~'1 r.~~ ,,,Llu7 ~~~~ To Prothonotary 19 ~~ Attorney r Plaintiff r «- v ~ , (`~ .1 n ~ r~r X02 ~ cat ~~' c~,r~ oS~o~.c~~- ~~ , ~.1.~ ~ r .~ o r .~ STRICKLAND BROTHERS CONSTRUCTION, LLC, Plaintiff CRAIG SEIG, v. Defendant WE5TFIELD INSURANCE COMPANY AS SUBROGEE OF CRAIG SEIG, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.06-2532 CIVIL TERM CNIL ACTION -LAW IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA N0. 08-0423 CIVIL TERM CNIL ACTION -LAW IN RE: NON-JURY TRIAL ORDER OF COURT N '._! ~ ~~ '~ '~'1 ~ r `T'1 :` i~ ~ ;, ' J , c ~' ~`` •' ~;~~t ~~ .-i f, ~. ~ ~ AND NOW, this 1St day of April, 2010, after nonjury trial in the above captioned matter, v. STRICKLAND BROTHERS CONSTRUCTION, LLC, Defendant the verdict of the Court is as follows: 1. On Strickland Brothers Construction, LLC's claim of breach of contract by Seig (Plaintiffs Complaint, Count I) the Court finds in favor of Seig and against Strickland Brothers Construction, LLC. 2. On Strickland Brothers Construction, LLC's claim of unjust enrichment (Plaintiff s Complaint, Count II) the Court finds in favor of Strickland Brothers Construction, LLC and against Seig and awards the amount of $12,907.77. t , 3. On Seig's claim of breach of contract by Strickland Brothers Construction, LLC, (Defendant's Counterclaim, Count I) the Court finds in favor of Seig and against Strickland Brothers Construction, LLC, and awards damages in the amount of $500.00. 4. On Seig's claim of the violation 73 Pa.C.S.A. §201-2(4)(xvi) of the Unfair Trade Practices and Consumer Protection Law, (Defendant's Counterclaim Count II), the Court finds in favor of Strickland Brothers Construction, LLC, and against Seig. 5. On Westfield's claims of (1) breach of contract, {Westfield's Complaint, Count I), (2) breach of warranty, (Westfield's Complaint, Count II), and (3) negligence (Westfield's Complaint, Count III), the Court finds in favor of Westfield and against Strickland Brothers Construction, LLC, and awards damages in the amount of $18,569.61. By the Court, ~~ M. L. Ebert, Jr., J. ,/Mark W. Allshouse, Esq. Attorney for Strickland Brothers Construction, LLC Paul M. Schofield, Jr., Esq. Paul F. D'Emilio, Esq. Attorneys for Westfield Insurance Company as Subrogee of Craig Seig ,,/John Pietrzak, Esquire Attorney for Craig Seig ~/~/~d ~~'1 2 STRICKLAND BROTHERS IN THE COURT OF COMMON PLEAS OF CONSTRUCTION, LLC, :CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. CRAIG SEIG, DEFENDANT NO. 06-2532 CIVIL WESTFILED INSURANCE COMPANY IN THE COURT OF COMMON PLEAS OF AS SUBROGEE OF CRAIG SEIG : CUMBERLAND COUNTY, PENNSYLVANIA P.O. BOX 5001 WESTFIELD CENTER, OH 44251-5001 PLAINTIFF v. ~ ~ ~~ _. c~ . F STRICKLAND BROTHERS rrt~- -a :- r CONSTRUCTION, LLC., ~ , ~ ~~ _,., 621 CREEK ROAD -, ` .. o ' CARLISLE, PA 17013 ' = ~ _.. -=~ ~} ~-r, DEFENDANT : N0.08-0423 CIVIL :.,. .. ra i. , ORDER OF COURT ~~ c.a AND NOW, this 30'h day of April, 2010, upon consideration of Strickland Brothers Construction, LLC's Motion for Past Tria{ Relief requesting Modification of Decision, IT IS HEREBY ORDERED AND DIRECTED that the Motion is DENIED. By the Court, M. L. Ebert, Jr., J ~ Mark W. Allshouse, Esquire Attorney for Plaintiff John H. Pietrzak, Esquire Attorney for Defendant ./Paul M, Schofield, Jr., Esquire Attorney for Westfield Insurance Company Court Administrator - ~pk $ ;y,t~,~~p bas ~ ~ O rv ~~'l CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: STRICKLAND BROTHERS VS. CRAIG SEIG 2006-2532 CIVIL 674 MDA 2010 The documents comprising the record have been numbered from No.l to 591, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 06-17-10 . i . Buell, Prothono Regina Lebo An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania ss: County of Cumberland In TESTIMONY 11i~(~EREOF, 1 have hereunto this I David D. Buell ,prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein STRICKT AJVD BROTHERS Plaintiff, and A ~ ~ ti ~' ~- Defendant , as the same remains of record before the said Court at No. ~h-~`~~ of c';~~;1 Term, A.D. 19 set my hand and affixed the seal of said Court day of A. D., 1~2A1D ~.-J ~ Prothonotary Kevin A. Hess President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that t~.,.~__a,_~~~~ by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas orlCao11udnty, was, at the time of so doing, and now is Prothonotary in and for said County of in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record, certificate and attestation are in due form of law and made by the proper officer. ~°°.;~' President .ludge Commonwealth of Pennsylvania ss: County of Cumberland 1, David D.. Buell ,Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Kevin A Hess by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, a.nd still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. 1N TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed the seal of said Court this day of Sane A. D. 19gt2010 L Prothonotary a s m a m 0 a a n ; 0 0 y N o ~ z o k ~ ' n 3 ~ ., ~ n.> ' y . ~ ~ ~ c y a ~ -~ z ~ ~ n - o `O z 0 -~ Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of Ctiunberland in the Commonwealth of Pennsylvania 674 NIDA 2010 to No. 2006-2532 Civil Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY STRICKLAND BROTI~RS CONSTRUCTION, LLC, vs. CRAIG SEIG, **SEE CERTIFIED COPY OF DOCKET ENTERIES** PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2006-02532 STRICKLAND BROTHERS CONST (vs) SEIG CRAIG Reference No..: Filed........: 5/05/2006 Case Ty e.....: COMPLAINT Time.........: 9:54 Judgmen~......: 12,907.77 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00 0000 ------------ Case Comments ------------- Higher Crt l.: 674 MDA 2010 JUDGMENT AMT 06-02-10 - 500.00 Higher Crt 2.: ******************************************************************************** General Index Attorney Info STRICKLAND BROTHERS PLAINTIFF ALESHOUSE MARK w CONSTRUCTION LLC 623 CREEK ROAD CARLISLE PA 17013 SEIG CRAIG DEFENDANT C/O JOHN H PIETRZAK ESQUIRE REEAGER & ADLER 2331 MARKET ST CAMP HILL PA 17011 4642 116 WINCHESTER GARDEN A APARTMENTS CARLISLE PA 17013 ******************************************************************************** Judgment Index Amount Date Desc STRICKLAND BROTHERS 500.00 6 O1 2010 FINAL JUD / / GMENT CONSTRUCTION LLC SEIG CRAIG 12,907.77 6/01/2010 FINAL JUDGMENT * Date Entries ~-/ 3 5/05/2006 COMPLAINT - CIVIL ACTION FIRST ENTRY - - - - - - - - - - - - - - ------------------------------------------------------------------- I~'I-15 5/10/2006 CERTIFICATE OF SERVICE - COMPLAINT - BY MARK W ALLSHOUSE ATTY ---------------------------------------------------- ---------- (Q - 316/01/2006 DEFENDANT'S ANSWER WITH NEW MATTER AND COUNTERCLAIM - BY JOHN H PIETRZAK ATTY ---------------------------------------------------------------- 3~ -C{ Q6/09/2006 MARK1W ALLSHOU~EDATTYSFORWPLFFTER AND ANSWER TO COUNTERCLAIM - BY ------------------------------------------------------------------- l~ y 6/19/2006 NEWEMATTEROANDTCOUNTERC~AIMTTO PLFFBSTCOMPLAINDEFTBY JOHNEH WITH PIETRZAK ATTY ------------------------------------------------------------------- ~'13 1/17/2008 PRAECIPE FOR LISTING CASE FOR TRIAL - BY MARK W ALEHOUSE ATTY FOR PLFF ------------------------------------------------------------ y ~ - yJ! 1/23/2008 ORDER OF COURT - 1/23/08 IN RE: NON JURY TRIAL IN THE ABOVE REFERENCES CASE HAS BEEN ASSIGNED TO THIS COURT - PRIOR TO SETTING AN ACTUAL TRIAL DATE - HEREBY ORDERED AND DIRECTED THAT THE PARTIES IN THIS CASE FILE A PRETRIAL MEMORANDUM WITH THE COURT ON OR BEFORE 2 13/08 IN THE FOLLOWING FORMAT 1- A CONCISE STATEMENT O FACTUAL ISSUES TO BE DECIDED AT TRIAL 2- A LIST OF WITNESSES THE PARTY INTENDS TO CALL AT TRIAL ALONG WITH A CONCISE STATEMENT OF THEIR ANTICIPATED TESITMONY 3- A LIST OF ALL EXHIBITS EACH PARTY ANTICIPATES PRESENTING AT TRIAL 4- A STATEMENT OF ANY LEGAL ISSUES EACH PARTY ANTICIPATES BEINGJ RAISED AT TRIAL ALONG WITH COPIES OF ANY CASES WHICH MAY BE RELEVANT TO RESOLUTION OF THE STATED ISSUE 5- AN ESTIMATE OF THE ANTICIPATED TIME NEEDED FOR THE PARTY TO PRESENT ITS CASE - UPON RECEIPT AND REVIEW OF THESE MEMORANDUMS THE COURT WILL SET A TRIAL DATE-FOR-THIS-CASE-_-BY-M-L-EBERT-JR-J-_-COPIES-MAILED-1/23/08----- y 2/13/2008 ORDER OF COURT - 2/12/08 IN RE: THE COURT HAVING BEEN ADVISED THAT ANOTHER SUIT HAS BEEN FILED BY WESTFIELD INSURANCE COMPANY WHICH MAY NEED TO BE CONSOLIDATED WITH THE ABOVE CAPTIONED MATTER - IT IS HERBEY ORDERED AND DIRECTED THAT THIS COURT'S PREVIOUS ORDER OF rx~511 Cumberland County prothonotar ' 2006-02532 STRICKLAND BROTHERSvCONSTSe print y s Office Page ~ Reference No.,: (vs) SEIG CRAIG Case T e. COMP Judgmen~, LAINT Filed. Jud e " " 12 907.77 Time. ~ " " " ' 5/05/2006 DisposedSDesca; EBERT M L~JR Execution~Date 9:54 '---- - Case Comments - Jury Trial.,,, 0/00/0000 JUDGMENT AMT 06-02-10 -`- "------- Dispposed Date 1r23/08 IS RECINDED Higher Crt 1,: 0/00/0000 STATUS CONFERENCE ON THISICASERTO INCRDEREDgher Crt 2,: 674 MDA 2010 WESTFIELD INSURANCE COMPANY WILL BE HELD ON 4~Dg/08 A,I,ED.30AT A CR5 OF THE CUMBERLAND COUNTY COURTHOUSEDE COUSNEL REPRESENTING ~~. ,1~ COPIES-MAILED-2/13/08 PM IN -1 4/30/2008 ORDER OF COURT 4 29 OS- `--- BY L EBERT JR J - / - AFTER STATUS CONFERENCE WITH COUNSEL AND IT APPEARING THAT ALL PARTIES AGREE TO CONSOLIDATI DISCOVERY INITHESEICASESHWILLYBERDOMPL AND DIRECTED THAT - B- PRE TRIAL MOTIONS IN THIS MATTER SHALL BE FILED ON OF THESE SET DOWN FOR ARGUMENT ON OR BEFORE 8 14/08 ARGUMENTFOFE 7 30%08ALL TRIAL MOTIONS WIL BE HELD AT ARGUMENT COURT ON 9 3 AND TH~ MOTIONS BEFORES9%25%082 N THERFOLLOW NGEFORMAT ~ /08 ACY pRE FACTUAL ISSUES TO BE DECIDED AT TRIALD~ WITH TH COURT ON ORL THE PARTY INTENDS TO CALL AT TRIAL ALONG WITH AOCONC SE STAMENT OF PARTYEANT~TPATESTPRESENTINGNAT TRIAL 2 A LIST OF WITNESSES 3- A LIST OF ALL EXHIBITSTEACHT LEGAL ISSUES EACH PARTY ANTICIPATES BEING RAISED AT TRIAL ALONG WITH COPIES OF ANY CASES WHICH MAY BE RELEVANT TTO RESOLUTI~Y FOR THETPARTYSTO PRESENT ITSICASE OF THE WILL BE HELD AT 9:00 AM ON ZO 3 08 IN CRS~~BERLAND COIME NEEDED COURTHOUSE / / D- TRIAL OF THIS MATTER S ~ 10/06/2008 ORDER OF COURBY-M L-EBERT-JR-J-_-COPIES MAILED 4/30/08 LINTY / - AFTER THE FIRST DAY OF TESTIMONY TN THE- NON JURY TRIAL IN1xHIS0MATER TS APPEARS THAT-POSSIBLE WILL BE NEEDED - IT IS HEREBY ORDERED CONTINUATION OF THE NON JURY TRIAL WILL BE HELD ON 2/18 09 AM AND 2/20/09 AT 9:00 AND DIRECTED THAT/TREE DAYS _ M L EBERT JR J - ~ IN-CR5-CUMBERLAND COUNTY COURTHOUSE 9~BY 51 73 4/01/2010 OPINION AND ORDER OFICOURT DATE10/6/08 VERDICT OF THE COURT AFTER THE NONJURY TRIAL - - EBERT JR J D 04-O1-10 IN RE NON JURY TRIAL - 7 - ~ ~ 4/15 2010 _ / MOTION FOR POSTOPTRIALAREL EF4 ~l_2010--- - BY THE COURT ML G BY MARK W ALEHOUSE ATTY FOR pLE4USTING MODIFICATION-OF DECISION - laZ,-~g 4/20/2010 NOTICE-OF APPEAL TO-SUPERIOR-COURT - - _ _- PLFF _ _ BY MAR.R-r,~-------------- ~i-~Q ~ 4/22/2010 ORDER OF COURT -_-----"-`----- ALEHOUSE ATTY FOR - 4 21/10 - IT IS HEREBY ORDERED AND LDAIIECTED THAT 1- PLFFS FILE A CONCISE STATEMENT OF-THE ERRORS COMP - APPEAL OR BEFORE 5/Z2/10 2- THE STATEMENT SHALL BE FI RECORD 3- THE STATEMENT SHALL BE SERVED ON THIS COURTD OF ON TO PA RAP RULE 1925 B 1 LED OF - IT IS FURTHER ORDERED ANY ISSUE NOT PROPERLY INCLUDED IN THE STATEMENT SHALL BE PURSUANT O Il1p WAIVED - BY M L EBERT JR J - AND DIRECTED THAT 4/22/2010 SUPERIOR COURT OF PA-NOTICE OFOPIES MAILED 4/22/10 DEEMED ~~-/~ 4/30/2010 ORDER-OF COURT `-'----- `~ppEAL-DOCKETING TO- ------~ - 4/30/10 IN RE: MOTION FOR POST TRTAL6RELIEF ?~10 REQUESTING MODIFICATION OF DECISION - MOTION IS DENIED - p EBERT JR J - COPIES MAILED 4/30/20 - `~ ~-l~l 5/10/2010 CONCISE STATEMENT OF MATTERS - ~ BY M L ALLSHOUSE ESQ FOR PLFF COMPLAINED OF ON APPEAL 30-~~5/27/2010 IN RE: OPINION PURSUANT TO - - _ _ BY ARK W -- COPIES MAILED 5/27/10 PA RAP 1925 - BY M L EBERT JR J --~ 3~-+3~ 6/01/2010 PRAECIPE FOR-ENTRY OF FINAL JUDGMENT - ----' ---_-_- OF APRIL 1 2010 AND THE COURT'S APRIL 30 2010-DENIAL OF PLAINTIFF'S REQUEST FOR POST-TRIAL RELIEF RE. JUDEGE EBERTS-ORDER AND AGAINST SEIF IN THE AMOUNT OF 12 907,77 AND AGAINST SBC LLC IN THE $$ - 1~ IN FAVOR OF SBC LLC AMOUNT bF 500.00 2) IN FAVOR OF SEIG - B1' MARK W. PYS511 Cumberland County Prothonotary's O:Efice Page 3 Civil Case Print 2006-02532 STRICKLAND BROTHERS CONST (vs) SEIG CRAIG Reference No..: Fi1ed........: 5/05/2006 Case Ty e.....: COMPLAINT Jud men~ 12 907 77 Time.........: 9:54 g ......: , . Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: ------------ Case C m t -- Disposed Date. 0/00 0000 o men s -------- --- Higher Crt l.: 674 MDA 2010 JUDGMENT AMT 06-02-10 - 500.00 Higher Crt 2.: ALLSHOUSE ATY FOR PLFF -------------------------- i~ ~~ 37a~6/15/2010 TRANSCRIPT FILED - DAY 1 - ------------- BY M L EBERT ----------------- JR J ----------- ---------------- 1~3 " J`q~6/15/2010 TRANSCRIPT FILED - DAY 2 - BY M L EBERT JR J --------------------------------------- 6/17/2010 NOTICE OF DOCKET ENTRIES MAILED TO MARK ----------------- W ALLSHOUSE ESQ ----------- AND JOHN H PIETRZAK ESQ - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Be q Bal *********************** Pmts/Ad~ End Bal * ********* ****** ** ****** *** **************** ************ COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 SUBPOENA 12.00 12.00 .00 PRAECIPE TRIAL 25.00 25.00 .00 SUBPOENA 24.00 24.00 00 SUBPOENA 18.00 18.00 . .00 APPEAL HIGH CT 48.00 48.00 .00 JDMT 14.00 -------------- 14.00 -- .00 196.50 -------- -- 196.50 ---------- .00 **************************************************** **************** ************ * End of Case Information * **************************************************** **************** ************ TRt~E CC~P~`~RQ~A ~tECORD X11 Tony Wt~Rf~ t~he[e tioto set my hand and U» r~ ofd Cotes ~~,~rl~~e~ Pa. 7hit,~~~i-o~..~~.Lii.---. 20 _LQ ~``~~~:~~ ~~ ~~ rothonotary ~i/~~ r ~, 4./t~l~•~!/L f , ' r ~u~erfor court of ~enu~pYbauia Karen Reid Bramblett, Esq. Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary June 29, 2010 Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Strickland Bros. v. Seig, C. 674 M DA 2010 Trial Court Docket No: 06-2532 08-0423 Dear Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www. superior. court. state. pa. us C o i ~:~.: '- li-~- ~ r V-~ 1 y ,_ z~. -~ received from the Superior Court of Pennsylvania, Middle District Office, the certificate of discontinuance of the court, in the above entitled case. ORIGINAL RECORD CONTENTS Original Record Item Description ^ Parts w/2 Exhibit Folders 2 Return to: Superior Court of Pennsylvania Office of the Prothonotary Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 7177721294 /aas Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 ---------------------------------------------------------------------------------------------------------------------------------- AOPC 1014 Rev.06/29/2010 i IN THE SUPERIOR COURT OF PENNSYLVANIA SITTING IN HARRISBURG ° t::; No.674 MDA 2010 -~.. ~~ o `~- --~ ;~. _T. -m :.. r-- rri _,;.. `- ~i_ ..... _~ ~ _;;._ - : Strickland Brothers ~J. LA' ="c' ~ era ~ a ;r ~ -T.. ~-err= Construction, LLC. ~ « .~ :Appeal from the JE 6/1/10 `~"' ~ v. :Court of Common Pleas Craig Seig :for the county of Cumberland No. 2532/06 0423/08 June 29, 2010 -The above appeal is hereby withdrawn and discontinued by order of: Mark W. Allshouse, Esa Attorney for Appellant June 29, 2010 -DISCONTINUED TRUE COPY FROM RECORD IN TESTIMONY WHEREOF, I have hereunto set my hand and the seal of said Court, at Harrisburg, this 29th day of June, 2010. Deputy rothonotary ~u~er%or court of ~eutt~pYbauia Karen Reid Bramblett, Esq. Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary June 29, 2010 NOTICE OF DISCONTINUANCE OF ACTION RE: Strickland Bros. v. Seig, C. 674 M DA 2010 Appeal of: Strickland Brothers Construction, LLC Initiating Document: Notice of Appeal Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 06-2532 08-0423 Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www.superior.court.state.pa. us The above-captioned matter has been marked "Discontinued" with this court. Certification is being sent to the lower court. Attorney Name Participant Name Participant Type Mark Wayne Allshouse, Esq. Strickland Brothers Construction, LLC Appellant John Harold Pietrzak, Esq. Mr. Craig Seig Appellee Paul M. Schofield Jr., Esq. Westfield Insurance Company Appellee ~ >v ° ,rte m ~-: c ~-- ~ " , ~_~ ~- t . ~. ` ~ ~. ,` ~` 1' _ ~t. ` a~• ~ ,~_ r r t~ • - rl (...i_i --~ ~' ~' w •-<