HomeMy WebLinkAbout06-2690Date: 4/27/2006 Dauphin County User: LGARCIA
Time: 09:43 AM RDA Report
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Case: 2006-CV-1230-MP
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Current Judge: John F. Cherry
Harry L Smith && Sons Incvs.Robert V Gothier Jr, Bonny L Gothier
Miscellaneous Petition
Date Judge
3/21/2006 New Civil Case Filed This Date. No Judge
Plaintiff: Harry L Smith & Sons Inc, Attorney of Record: Roger R Laguna No Judge
Jr
Filing: Petition Paid by: Laguna, Roger R Jr (attorney for Harry L Smith & No Judge
Sons Inc,) Receipt number: 0101677 Dated: 3/21/2006 Amount: $117.00
(Check)
Petition To Confirm Arbitration Award and Enter Judgment, filed. John F. Cherry
3/22/2006 Judge assigned to case. John F. Cherry
upon consideration of Petitioner/Plaintiff Harry L. Smith & Sons, Inc.'s John F. Cherry
Petition to Confirm Arbitration Award and Enter Judgment, a rule is issued
upon Respondents/Defendants Robert V. Gothier, Jr., and Bonny L.
Gothier to show cause, if any there be, why petitioner/plaintiff's Petition to
Confirm Arbitration Award and Enter Judgment should not be granted.
Rule returnable within 15 days of receipt of this Order. See RULE TO
SHOW CAUSE filed. Copies Dist. by the Court 3-22-06.
4/6/2006 Answer and response to plaintiff's petition to confirm Arbitration Award, filed John F. Cherry
4/21/2006 Upon consideration of Plaintiff Harry L. Smith & Sons, Inc.'s Petition to John F. Cherry
Confirm Arbitration Award and Enter Judgment; Defendants Robert V.
Gothier, Jr. and Bonny L. Gothier's Answer and Response to Plaintiffs
Petition to Confirm Arbitration Award, and upon consideration of the
applicable statutory law, IT IS HEREBY ORDERED that plaintiffs petition is
DENIED. The Prothonotary of Dauphin County IS HEREBY ORDERED to
transfer this matter to the Cumberland County Court of Common Pleas.
See MEMORANDUM OPINION AND ORDER filed. Copies Dist. 4-21-06.
The above action transferred to the Court of Common Pleas of Cumberland No Judge
County.
****NO MORE ENTRIES CASE TRANSFERRED**** No Judge
TO THE COURT OF COMMON PLEAS
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LAGUNA REYES MALONEY, LLP
I 1 1 9 NORTH FRONT STREET
HARRISBURG, PA 1 7102
TEL.: (71 7) 233-5292
FAX: (71 7) 233-5394
ATTORNEY FOR PLAINTIFF
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HARRY L. SMITH & SONS, INC.,
Plaintiff
V.
ROBERT V. GOTHIER, JR., and
BONNY L. GOTHIER,
Defendants
§ IN THE COURT OF COMMON PLEAS
§ DAUPHIN COUNTY, PENNSYLVANIA
§ NO. aDOU W 030 MP
PETITION TO CONFIRM ARBITRATION
AWARD AND ENTER JUDGMENT
1. Plaintiff is Harry L. Smith & Sons, Inc., ("Smith") a corporation organized and
existing under the laws of the Commonwealth with offices located at 5943
Devonshire Heights Road, Harrisburg, Dauphin County, Pennsylvania.
2. Defendants are Robert V. Gothier, Jr., and Bonny L. Gothier, ("Gothier") adult
individuals, husband and wife, residing at 99 Manor Drive, Dillsburg, Pennsylvania.
3. On or about May 30, 2002, Smith and Gothier`agreed, in writing, that Smith would
construct a new residence and perform remodeling on an old residence, for the sum
of $1,025,000.00. A true and correct copy of the aforesaid contract signed by the
parties is attached hereto as Exhibit "A".
4. A dispute and claim(s) subsequently arose out of the said Agreement when Gothier's
allegedly failed to pay Smith as agreed and, pursuant to the provisions of Article 13
"Arbitration" of the Agreement (Exhibit "A"), Smith demanded binding arbitration.
5. Pursuant to the Agreement, the parties cooperated to select a Panel of Arbitrators; one
each and a neutral. The Panel of Arbitrators were Charles E. Friedman, Esquire, John
R. Zonarich, Esquire and Richard L. Placey, Esquire.
6. A two day arbitration hearing was conducted in Harrisburg, Dauphin County,
Pennsylvania; it commenced on December 6, 2005 and concluded on December 7,
2005 after each of the parties had presented its respective position in regard to the
claim.
7. On January 31, 2006, the Arbitration Panel decided in favor of Smith and awarded
Plaintiff the sum of $128,317.00, with 1% interest commencing February 15, 2006.
See Exhibit "B".
8. The Award (in accordance with the Agreement between the parties) is binding: "Any
award rendered by arbitrators shall be final and enforceable by any party to the
arbitration, and judgement may be entered upon it in accordance with the applicable
law and any court having jurisdiction thereon." Exhibit "A": Article 13 "Arbitration",
§ 13.6, page 11.
9. Plaintiff, Smith, desires to have the attached Arbitration Award (Exhibit "B") reduced
to judgment in order that it may be enforced and collected against the Defendant,
Gothier.
10. The Uniform Arbitration Act, 42 Pa.C.S.A. §7342(b) provides that on application of
a party made more that 30 days after an award is made by an Arbitrator under Section
7341 (relating to common law arbitration) the court shall enter and Order confirming
the Award and shall enter judgment or decree in conformity with the Order.
11. This Court has jurisdiction to enter judgment on this Award at this time because the
hearing was conducted in Dauphin County, and more than 30 days have elapsed since
the Award was made.
WHEREFORE, Plaintiff, Smith, moves that the Court confirm the Arbitration
Award of $128,317.00, with 1% interest commencing Februarf IN 2006, and direct the
Prothonotary to enter the same
Fc6ger R. Lagunhjr., Esquire
Attorney for Defendant
Supreme Court I.D. No.: 75900
LAGUNA REYES MALONEY, LLP
1119 North Front Street
Harrisburg, PA 17102
(717) 233-5292
EXHIBIT "A"
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CONSTRUCTION AGREEMENT
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THIS CONSTRUCTION AGREEMENT (hereinafter, "Agreement") is made this 3 e day of May,
2002, by and between HARRY L. SMITH & SONS, INC. (hereinafter referred to as "Contractor'), and
Robert V. Gothier, Jr. and Bonny L. Gothier (hereinafter collectively referred to as "Owner"),
WHEREAS, Owner wishes to erect at 99 Manor Drive, Dillsburg, PA 17109, Monaghan
Township, York County, an improved single family dwelling home, and has caused Crabtree Rohrbaugh
& Associates, Architects, to prepare drawings and specifications of the Project 1614: Gothier Residence
Plan, dated last revised , (hereinafter, the "Plans and
Specifications"); and
WHEREAS. Contractor has signified his willingness to erect Project 1614: Gothier Residence
Plan in accordance with the drawings and specifications attached to this contract and signed by the
contractor, owner, and architect, and in accordance with the conditions and for the consideration set forth
below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties, intending to be legally bound hereto, agree to the following terms and conditions.
ARTICLE 1
THE CONTRACT WORK
1.1 Contractor agrees to build for Owner an improved dwelling home, described as
Project 1614: Gothier Residence, according to the Contract Documents herein defined and provide
certain limited renovations to an existing home as hereinafter provided. Said improved dwelling home is
to be built on Owner's land situate at 99 Manor Drive, Dillsburg, York County, Pennsylvania.
Contractor shall perform his responsibilities in accord with the Contract Documents, which shall include
this Construction Agreement, the Plans and Specifications, the Cost Breakdown, and any and all other
Addenda issued prior to and all Modifications/Change Orders after execution of this Construction
Agreement, which documents form the Contract Documents and are all fully part of this Construction
Agreement as if attached to this Construction Agreement or repeated herein. In case of conflict or
ambiguity, the Specifications shall control the Plans and Specifications, and the provisions of this
Construction Agreement shall control all other contract documents.
1.2 Unless otherwise provided herein or by Addenda, Contractor shall furnish all
materials as specified herein, perform all the labor, pay for all subcontractors, supply all necessary tools,
equipment and transportation, and provide all necessary supervision and any other responsibilities which
may be necessary for the construction and in accord with the Construction Documents herein defined. It
is specifically understood that Contractor shall not be liable or otherwise responsible for inaccuracies,
errors or omissions with regard to any and all information contained in the Contract Documents supplied
by Owner, Ow'ner's architect, engineer or any other agent for Owner. Likewise, if applicable, Contractor
shall not be responsible for any work performed by subcontractors retained directly by Owner. Owner
understands and acknowledges that this custom home has never been built before and, therefore,
Contractor has the right to make minor modifications or adjustments during the construction process,
which may result in slight variations of dimensions, and which may become necessary to comply with the
general intent of the Contract Documents, without written Change Order, provided such does not change
the Contract sum or the time of performance, and Owner agrees to hold Contractor harmless for any such
change, modification or adjustment. Contractor reserves the right to substitute the material of like
d •
quality. It is understood that before Owner takes possession of the new house to be constructed, all
outstanding invoices, change orders and extras relating thereto shall be paid in full and settlement made
with Contractor. For purposes of clarification and identification, Contractor will additionally be making
certain limited renovations to an existing house, the "Existing House", the cost of which is included as an
allowance in Paragraph 3.3(cc) and said allowances included in the Contract Price. Owner shall likewise
not take possession of the Existing House until all outstanding invoices and change orders and extras
related thereto shall be paid full and settlement made with Contractor with regard to the Existing House.
ARTICLE 2
CONTRACT PRICE
2.1 The agreed basic construction sum, as may be subject to additions and/or deductions by
changes, additions, alterations and allowances, as also described hereinafter, payable to Contractor by
Owner, in strict accord with the following paragraph, is the sum of One Million Twenty-five Thousand
and 00/100 ($1,025,000.00) Dollars (hereinafter, the "Contract Price").
2.2
A. Owner agrees to make progress payments to Contractor on account of the Contract Price
based upon written applications for progress payments, also known as "draws", submitted to Owner by
Contractor at the following times as determined by Contractor:
7% $ 71,750.00 of the Contract Price for Excavation - Footers - Foundation Walls
7% $ 71,750.00 of the Contract Price for one-half of Framing;
10% $102,500.00 of the Contract Price for one-half of Framing, Windows-Installed;
7% $ 71,750.00 of the Contract Price for Roof Shingled, Exterior Doors excluding.
Overhead Doors;
10% $102,500.00 of the Contract Price for Rough-ins of Electrical, Plumbing and
Heating/Air Conditioning;
10% $102,500.00 of the Contract Price for Insulation and Drywall;
15% $153,750.00 of the Contract Price for Stone and Dryvit;
io% $87.500.00 of the Contract Price for Kitchen Tops, Vanity Tops, Appliances:
13% $133,250.00 of the Contract Price:for Interior Trim;
8% $ 82,000.00 of the Contract Price for Painting - Flooring - Lighting installed;
3% $ 30,750.00 of the Contract Price upon substantial completion.
B. $15,000.00 payable upon substantial completion of Contractor's responsibility with
regard to the Existing House.
2.3 It is understood that Owner is obtaining a construction loan from
in the sum of . Before any draws are paid,
the application for progress payment and corresponding work required therefore is to be approved by the
appropriate representatives of said Institution and of Owner. If Owner's lender mandates a different draw
schedule other than above provided, such may be accepted by Contractor, but only if Contractor is
provided same on or prior to the execution of this Agreement and does, in writing, approve same, which
approval shall not be unreasonably withheld or delayed. Owner specifically authorizes said lender, by
execution of this Agreement, to make progress payments directly to Contractor.
2.4 The progress payments shall be due and payable ten (10) days from the date of
mailing/issuance by Contractor of an invoice for a progress payment. Payments not paid within said
period, absent bona fide dispute, shall bear interest from the date said sum is due at the rate of one
percent (1%) per month. Furthermore, if the invoice for any progress payment remains unpaid within ten
(10) days following further written notice of non-payment, Contractor may declare Owner in default and
suspend any further work until a payment is made and appropriate security and guaranty are given to
insure against any future further default. Furthermore, in the event either party is required to institute
suit, in addition to any amounts owing to each other, or other relief granted in law or equity.as permitted
by law, the prevailing party shall receive, and the non-prevailing party shall be required to pay the
prevailing party's reasonable attorneys' fees.
2.5 Final payment, consisting of the unpaid balance of the Contract Price as adjusted by any
modifications or Change Orders, shall be due and payable upon substantial completion. At such time the
home is substantially completed, and the balance of the Contract Price is due and owing, Contractor shall
notify the appropriate municipal authority and obtain an Occupancy Permit, whereupon the parties shall.
meet at the dwelling within five (5) days of receipt of the Occupancy Permit, inspect the dwelling home,
and develop a written list of items, if any, that remain to be completed. With regard to such list of items,
a certain amount shall be withheld, not to exceed one hundred and ten percent (110%) of the estimated
cost of completion of such items listed. However, if the item(s) to be completed is an item of work
which is an allowance item, as hereinafter described, the amount to be withheld shall be one hundred
percent (100%) of the estimated cost of completion. Said list may be supplemented by Owner within one
(1) month following actual physical occupancy of the dwelling home although, upon completion of the
original punch list developed prior to occupancy, Owner shall be obligated to pay Contractor the full
amount withheld without set-off or deduction for any additional punch list items, if any, that may have
been added in the one-month period or for any other reason or cause whatsoever. It is agreed that the
punch list-as may be supplemented during the one-month period of occupancy, shall be, to the best of the
parties' ability, a definitive list and, after this list is satisfactorily completed by Contractor, no further
punch list or items of correction, unless a written agreement is specifically entered into, shall be the
obligation or responsibility of Contractor. Immediately following receipt of the Occupancy Permit and
agreement to the punch list, Owner shall immediately authorize and effectuate payment to Contractor of
the final progress payment, less any amount withheld as agreed pending completion of the punch list,
whereupon Owner shall then be entitled possession of the dwelling home. It is understood and agreed
that Owner accepts the home and its condition except for any items noted on the punch list unless any
such conditions are hidden or are not readily observable. Occupancy of the dwelling home by Owner
prior to payment of the balance of the Contract Price, as amended, shall cause said sum, regardless of the
d
stage of completion or substantial completion, to be immediately due and payable, and Contractor shall
have the right to suspend further work, if he so chooses, subject however to the provisions of Article G
hereof.
2.6 Making the final payment shall furthermore constitute a release and waiver of all
claims known or which should reasonably have been known by Owner at such time, except faulty or
defective work appearing within one (1) year after substantial completion, or by reason of any implied
warranty as arising by operation of law, but as herein limited.
ARTICLE 3
ALLOWANCE ITEMS
3.1 Certain allowances are contained in the Construction price and are used to permit Owner
as much latitude as possible to design, equip and furnish the home-in a manner suitable to his tastes'and
desires. The allowance figure represents a price which Contractor believes quality items may be
purchased and installed, and including sales tax, and such allowance amounts as designated and as based
on the Plans and Specifications, are included in the Construction price. Thus, the Owner is responsible
for staying within his allowance for each item but, if the allowance is exceeded, the Owner will pay the
additional cost directly to the subcontractor/supplier whenever possible. If this is not possible to directly
pay the subcontractor or supplier, and the cost exceeds the allowance, Owner.shall promptly notify
Contractor, who may then bill Owner the overage cost plus twenty (20%) percent to cover any overhead
and administration, which must be paid to Contractor prior to installation. Owner shall pay the allowance
overage and the service fee, as above stated, within ten (10) days of invoicing from Contractor, which
must be received pdgr to ordering, if applicable, or Contractor's installation of any allowance items for
such item/category, or may be contained in full in the next regularly scheduled progress payment, at
Contractor's option. In the event that allowance for one item identified is not fully utilized, that amount
may be credited to another allowance item hereinbefore identified. Furthermore, in the event the total
amount of the allowances identified are not utilized, such shall result in a credit to Owner in the total
construction price.
3.2 In the course of Owner's selection and purchasing of fixtures, accessories and items of
allowance, as identified, the respective suppliers and materialmen will send to Contractor the various
invoices for purchase of such fixtures, accessories and items to be charged to Contractor's account. To
the best of Contractor's ability, it will promptly transmit to Owner copies of such invoices and if no
response is received within seven (7) days of mailing, the Contractor shall assume such invoices to.be
correct. In the event such are not correct, or items are subsequently deleted, it shall be Owner's
obligation to so timely notify Contractor. In addition, it shall be the Owner's obligation to so timely
notify the respective suppliers and materialmen to make the appropriate adjustment to the Contractor's
account for all such items subsequently deleted. Furthermore, if any items of allowance are billed to
Contractor from the suppliers and materialmen following final payment on the home, and the total,
allowances have been previously exceeded, Owner shall remit to the Contractor payment for said
additional allowance cost(s) within ten (10) days of billing by Contractor. All such payments for sum(s)
in excess of the stated allowance shall be due and owing. without setoff or regard to final payment or any
outstanding punch list items that remain to be completed by Contractor.
4
3.3 The Contract Price does include, therefore, the following allowances
which,.unless otherwise indicated, include installation and sales tax, as follows:
(a) $ 7.500.00 excavation, backfill, trenching and grading;*
(b) $ 4.600.00 exterior doors and hardware;
(c) $ 2,100.00 fireplace - pre-fab wood burning Master Bedroom
(d) $ 6.900.00 plumbing fixtures - whirlpool tub:
(e) electrical wiring;
(f) $10.000.00 - decorative electrical fixtures;
(g) $50.000:00 - cabinetry, vanities, countertops, other built-ins;
(h) In Kit Allowance - appliances;
(1) $45.020.00 - windows - Lincoln;
0) $ 3.050.00 - overhead doors and openers;
(k) $23.846.00 --heating and air conditioning for new home (Existing House
heating and air conditioning to be paid by Owner and such is not
in the Contract Price/Existing House allowance);
(1) $ 2.000.00 - underground propane gas tank;
(m) $32.000.00 - painting (new and Existing House total cost)**;
(n) $ 1.500.00 - curved maple bench in great room;
(o) $ 650.00 - window seat in bedroom #A203;'
(p) $40,000.00 - flooring and underlayment
(q) $ 1,500.00 - mirrors; bath accessories; shower doors;
(r) $ `3,500.00 closet rods and shelves;
(s) By Owner - driveway; \
(t) By Owner - raking and seeding;
(u) By Owner - landscaping;
(v) $ 7.500.00 - septic system;
(w) By Owner well and pump;
(x) NIA central vac;
(y) $ 5.000.00 security system - sound - specialty wiring;.
(z) structured wiring;
(aa) other; all interior stand and rails;
(bb) $ 2.000.00 other: housecleaning before moving; and
(cc) $15.000.00 - other; Existing House renovations as per Plans and Specifications;
which shall include P.V.C. Shutters to replace existing shutters on Existing House by
Contractor. New Aluminum soffits and fascia installed on Existing House included in
Contract. Install in Existing Kitchen 12" x 12" Vinyl Stick Down Tile provided by
Owner, installed by Contractor.
It is specifically noted that these allowances, and several additional allowances, are set forth in
the Specifications. All such allowances set forth in the Specifications not contained herein, however,
shall be controlled by this Article 3 of the Construction Agreement. .
Throughout the development of the specifications and construction of the home. Owner will be
confronted by the utilization of allowances. Contractor has utilized allowances, where practical, to allow
Owner as much latitude as possible to design and construct their home to suit the Owner's individual
tastes and requirements. The dollar figure allocated for each particular item or segment of work
a e
3.3 The Contract Price does include, therefore, the following allowances
unless otherwise indicated, include installation and sales tax, as follows:
(a)
(b)
(c)
(d)
(e)
M
(g)
(h)
(t)
W
(k)
(1)
j (m)
(n)
(o)
(p)
(q)
? (s)
(t)
(u)
(v)
(w)
(x)
(Y)
(z)
' (aa)
(bb)
(cc)
$ 7,500.00 - excavation, backfill, trenching and grading;*
$ 4,600.00 - exterior doors and hardware;
$ 2,100.00 - fireplace - pre-fab wood burning Master Bedroom
$ 6,900.00 - plumbing fixtures - whirlpool tub;
- electrical wiring,
$10,000.00 - decorative electrical fixtures;
$50.000.00 - cabinetry, vanities, countertops, other built-ins;
In Kit Allowance - appliances;
$45,020.00 - windows - Lincoln;
S3,050.00 - overhead doors and openers;
$23,846.00 --heating and air conditioning for new home (Existing House
heating and air conditioning to be paid by Owner and such is not
in the Contract Price/Existing House allowance);
$.2,000.00 - underground propane gas tank;
$32,000.00 - painting (new and Existing House total cost)**;
$ 1,500.00 - curved maple bench in great room;
$ 650.00 - window seat in bedroom #A203;
$40,000.00 - flooring and underlayment;
$ 1,500..00 - mirrors; bath accessories; shower doors;
$ X3,500.00 closet rods and shelves;
By Owner - driveway;
By Owner - raking and seeding;
By Owner - landscaping;
$ 7,500,00 - septic system;
By Owner - well and pump;
N/A central vac;
$ 5,000.00 security system - sound - specialty wiring;
structured wiring;
other; all interior stand and rails;
$ 2,000.00 other; housecleaning before moving; and
$15,000.00 - other; Existing House renovations as per Plans and Specifications,
which shall include P.V.C. Shutters to replace existing shutters on Existing House by
Contractor- New Aluminum soffits and fascia installed on Existing House included. in
Contract. Install in Existing Kitchen 12" x 12" Vinyl Stick Down Tile provided by
Owner, installed by Contractor.
It is specifically noted that these allowances, and several additional allowances, are set forth in
the Specifications. All such allowances set forth in the, Specifications not contained herein, however,
shall be controlled by this Article 3 of the Construction Agreement.
Throughout the development of the specifications and construction of the home, Owner will be
confronted by the utilization of allowances. Contractor has utilized allowances, where practical, to allow
Owner as much latitude as possible to design and construct their home to suit the Owner's individual
tastes and requirements. The dollar figure allocated for each particular item or segment of work
4? e
generally represents an approximated price for which the contractor believes quality items may be
purchased and installed, including sales tax. However, with regard to the proposed dwelling. house,
Owner has indicated to Contractor that there are certain items for which it is understood and realized by
Owner the allowance number may be exceeded, which items include plumbing, kitchen, painting, floor
covering, and lighting fixtures. Indeed, Owner has advised Contractor and recognizes that these items, to
the extent in excess of the allowances, will result in an excess of the Contract Price with a variable,
depending upon owner's final choices and selections, based upon Owner's current comments of between
$75,000.00 to $100,000.00.
It is understood that Owner alone is responsible for staying within his allocation for each item
and that if he exceeds the allowance, the additional cost will be paid to Contractor at the construction
progress payment schedule immediately following agreement as to a particular allowance item as more
particularly set forth in the Construction Agreement.
('Contractor will excavate and backfill for the area of construction only. Any additional costs
for this work beyond the excavation allowance, including, but not limited to, removal of excess fill, .
hauling in of additional fill, additional grading or cutting, which may be required, at Contractor's option,
shall be the responsibility of Owner. Contractor will not be responsible for the settlement of any backfill
after grading. If backfilled or excavated areas around the foundation of the dwelling home settle during
the first year, Contractor will fill the areas one time. Any earthwork outside the area of construction,
including the removal of trees, is not included in the excavation allowance and is a separate cost item at
additional cost to Owner.)
ARTICLE 4
TIME OF COMMENCEMENT
4.1 The approximate date for commencement of the work is as soon as possible after signing
contracts, but not before the filing of a Stipulation of Liens executed between the parties. The project is
to be substantially completed in twelve (12) months from the date Contractor commences construction,
subject to permissible delays. Time shall be of the essence. Such delays include fire, inclement weather.
strikes, material shortages, material delays not as a result of any inactions or actions of Contractor,
subsoil or surface conditions other than ordinary high, dry earth free of excessive rock, failure of Owner
to make timely selections, or any other causes beyond the reasonable control of the Contractor.
Contractor shall not be responsible for damages or penalty for permissible delays whatsoever. The
dwelling home shall be considered substantially completed when it has been fully constructed in
substantial conformance with the Drawings and Specifications and the appropriate municipal authorities
have issued an occupancy permit.
4.2 Information, subcontracts or the furnishing of materials or services under Owner's
control, including, but not limited to, item selection, shall be furnished by the Owner in a timely manner
not to disrupt or delay the orderly and timely construction of the dwelling. A late selection may delay the
orderly progress of the work and the completion/move-in date. Not only shall Contractor not be liable
for such delay, but the Contractor shall be equitably compensated for any overhead costs occasioned by
such delay. In the event the Owner does not make a selection resulting in a substantial delay in the
construction schedule, upon reasonable written notice to Owner, Contractor may suspend all actions on
the construction and Owner shall, within ten (10) days of invoice, pay to Contractor for all additional
o •
overhead and damages caused by said delay, if any. If Owner's failure to so reimburse Contractor
exceeds thirty (30) days, Contractor may declare a default hereunder without further notice.
. ARTICLE 5
SUBSTANTIAL COMPLETION
The date of substantial completion of the contract work is the date when the construction
is sufficiently completed in accordance with the Contract Documents so the Owner can legally occupy
the construction work as evidenced by a Certificate of Occupancy.
ARTICLE 6
POSSESSION
It is agreed that until Contractor is fully paid all sums due by Owner, Contractor shall retain
exclusive possession of the dwelling during construction so long as Contractor fulfills its obligations
hereunder, subject, of course, to inspection by Owner and their agents at reasonable times. In the event
Owner is in monetary default, not only is Owner not entitled to possession but Contractor has also the
tight and is fully justified in refusing to perform any further services hereunder until mutually agreed
arrangements are made with regard to payment of Contractor and all balances due for the construction
price. It is understood that during construction of the new house, Owner plans to live in the Existing
House, and no work will be commenced on the Existing House until Owner vacates same, at which time
prior to Owner's movement into the new house, the total Contract Price plus any additions and/or
deductions, changes, alterations shall be fully paid to Contractor.
ARTICLE 7
INFORMATION AND SERVICES REQUIRED OF THE OWNER
The Owner does represent and warrant, as follows:
7.1 Owner has read and understands the terms, conditions, rights and obligations set forth in
this Construction Agreement.
7.2 Upon reasonable request of Contractor, timely furnish to Contractor reasonable
evidence that Owner has made sufficient financial arrangements to fulfill Owner's obligations under this
Construction Agreement. If so requested by Contractor, Contractor's obligation to commence work is
dependent upon Owner providing such satisfactory information to Contractor in a timely manner which
shall not exceed five (5) business days from the date of receipt of request.
7.3 By signing this Construction Agreement, Owner represents and warrants that the tract of
land upon which the improved dwelling home is to be built conforms to all zoning, planning and other
building requirements: that the tract of land is suitable for the construction required and provided under
the terms of this Construction Agreement; that he is the owner of record of the within described parcel;
that title is good and marketable and insurable by any reputable title company; that a perpetual right-of-
way exists to the parcel; and, that the parcel is free and clear of any encumbrances, liens, and easements,
other than construction financing. Furthermore, Owner represents and warrants to Contractor that, to the
best of Owner's knowledge, there are no actions, cause of actions or claims which might at a later date
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impair title to the aforementioned tract of land. Finally, Owner represents and warrants that he shall, at
his own expense, promptly satisfy any conditions (as which may arise at any time during construction)
which would cause the title to be unacceptable to any recognized reputable title insurance company.
7.4 Owner represents that he has no knowledge or information of any hazardous substances
of any type or kind as defined by appropriate State and Federal statutes, that exists and/or has been stored
or disposed upon the subject tract.
7.5 Owner shall timely furnish, prior to commencement of construction, all surveys
describing the physical characteristics, legal limitations, if any, utility locations on the tract, and a legal
description of the tract.
7.6 Owner shall locate for Contractor upon the tract where and how the improved dwelling
home shall be situated, giving appropriate elevations, benchmarks, or other data necessary for this
purpose. If Owner fails to so timely locate the improved dwelling home and provide such information
prior to the time Contractor commences work, Contractor may delay commencement of work or situate
the dwelling in such a position as he deems appropriate and advisable, in which event Contractor shall be
in no way legally liable or responsible for improper location or elevation and Contractor, in such event,
would provide Owner no less than five (5) business days written notice of Owner's failure to fulfill his
obligations under this sub-paragraph prior to Contractor's location of the home on the tract.
7.7 Owner has, at his expense, prepared or caused to be prepared for construction of the
improved dwelling home the Plans and Specifications, and Owner warrants that the Plans. and
Specifications are true, correct and accurate as of the commencement of work by Contractor. Any
material deviation from the Plans and Specifications so warranted shall constitute a Change Order and
shall be treated as a Change Order pursuant to the provisions hereof.
ARTICLE 8 ,
OBLIGATIONS OF CONTRACTOR
8.1 Contractor will provide all construction, supervision, inspection, labor, materials, tools,
equipment and subcontracted items necessary for the execution and completion of the contract work.
Contractor represents that it has the knowledge and skill to perform its duties under this contract
properly, promptly and efficiently.
8.2 Contractor will pay all sales, use, gross receipts and similar taxes related to the contract
work to be provided by the Contractor, which taxes have been legally enacted at the time of execution of
this Agreement.
8.3 Contractor warrants to Owner that all materials and equipment incorporated into the
contract work will be new unless otherwise specified,.and that all contract work will be of good and
workmanlike quality, in conformance with the contract documents.
8.4 Contractor shall be responsible for the acts and omissions of its employees and all
subcontractors engaged by Contractor, their agents and employees, and all other persons performing any
of the work or supplying any of the materials under this contract on behalf of or with the Contractor.
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8.5 Owner will obtain and pay for all necessary permits or authorizations from all
Municipal bureaus or utilities which may be required for the construction or occupancy of said work.
Contractor will execute the Owner's name to any applications for such permits or authorizations.
Contractor will provide all construction, supervision, inspection, labor, materials, tools, equipment, and
subcontracted items necessary for the execution and completion of the Contract Work. The Contractor
may substitute materials that are equal in quality to those specified, or shown ina model home, if
applicable, and if Contractor deems advisable to do so.
ARTICLE 9
CHANGES
The Contractor is under no obligation to make any changes, additions, or alterations in the work
provided in the Contract Documents. Upon reasonable request ofOwner, Contractor may make changes,
additions, or alterations, but the Contractor shall not be required to do so until the parties have executed a
written Change Order, which will become part of this Agreement, and Owner has agreed to pay
Contractor for changes in the work prior to any Change Order work being performed or with the
following progress payment (draw), at the option of Contractor. Owner agrees to make requests
concerning any changes, additions, or alterations in the work to Contractor and not to the workers,
including subcontractors on thejob.
ARTICLE 10
CORRECTION OF WORK
10.1 Contractor shall correct any work that fails to conform. to the requirements of the
Contract Documents where such failure to conform appears during the progress of the Work, and shall
remedy any defects due to faulty materials, equipment or workmanship which appear within a period of
one (1) year from the date of substantial completion. The provisions of this paragraph apply to work
done by subcontractors as well as to work done by direct employees of Contractor provided Contractor
has met the requirements for substantial completion.
10.2 Contractor shall assign, upon payment of the full contract price, to Owner, to the extent
they are applicable, all rights under manufacturer's warranties on appliances, equipment, fixtures and .
consumer products included in the house and located on Owner's property, to the extent such warranties
are assignable. Contractor provides no warranties relating to manufactured or consumer products.
10.3 The obligation to perform any warranty work by Contractor as provided for in this
Agreement or by Contractor's Limited Warranty, shall not begin until Contractor has received full
payment for the Project including any Change Order.
THIS CONTRACT CONTAINS ALL OF THE REPRESENTATIONS, WARRANTIES AND
PROMISES OF CONTRACTOR. NO AGENT OR REPRESENTATIVE OF CONTRACTOR IS
AUTHORIZED TO MAKE ANY REPRESENTATION OR PROMISE ON BEHALF OF THE
CONTRACTOR OTHER THAN THOSE CONTAINED HEREIN, AND THE CONTRACTOR MAKES
NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
WARRANTIES OF GOOD WORKMANSHIP, HABITABILITY AND FITNESS OF PURPOSE.
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ARTICLE 11
RELEASE OF LIENS
Contractor, with his request for final payment, shall deliver to Owner a complete Release of
Liens arising out of this contract and a Stipulation Against Liens filed prior to any commencement of any
work, and, if required, shall furnish an affidavit through it as Contractor that the Releases include all
labor and material for which a lien could be filed. However, the Contractor may, if any subcontractor
refuses to furnish a release or receipt in full, furnish bond satisfactory to Owner to indemnify Owner
against any lien.
ARTICLE 12
ASSIGNMENT OF CONTRACT
Contractor reserves the right to assign any part or parts of this Agreement, but only with the
approval of Owner, which approval shall not be unreasonably withheld, delayed or conditioned.
Subcontracting of certain portions of the work shall not be considered an assignment subject to Owner's
approval. Owner may not assign this Agreement without the written consent of Contractor, which
consent shall not be unreasonably withheld, delayed or conditioned.
ARTICLE 13
ARBITRATION
13.1 All claims, disputes, and other matters in question between the parties in this contract,
arising out of or related to this contract or any breach or alleged breach of this contract, will be decided
by arbitration unless the parties otherwise mutually agree in writing.
13.2 If the parties can agree upon one arbitrator, then there shall be one arbitrator; otherwise,
there shall be three, one named in writing by each party of the contract within ten (10) days after notice
of arbitration is served by either party upon the other, and a third arbitrator selected by these two
arbitrators within ten (10) days thereafter. No one shall serve as an arbitrator who is in any way
financially interested in this contract or in the affairs of either party hereto.
13.3 Any arbitration arising out of or relating to this Agreement, the Project, the Work, the
Contract Documents, or the breach thereof may include by consolidations, joinder or in any other
manner, any other entities or persons whom the Owner or Contractor believe to be substantially involved
in common questions of fact, law or responsibility thereunder. Contractor shall use his best efforts to
require any subcontractors to submit to said arbitration proceeding and the joinder consolidation
hereunder.
13.4 In the event either party hereto wishes to request arbitration of any claim, dispute or
other matter in question, he shall first timely file a notice of demand for arbitration in writing with the
other party specifically describing the claims, disputes and other matters in question which it is wished to
be submitted to arbitration. Thereafter, a period of thirty (30) days shall elapse in order to provide
available time to amicably resolve such disputes, and failing such, the dispute then may be submitted to
an arbitrator as provided herein. The parties agree to proceed in accordance with the rights and
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Ixocedures provided by the Pennsylvania Rules of Civil Procedure, including but not limited to the right
iu engage in discovery.
13.5 In any case in which either party elects to submit. a claim, dispute or other matter in
question to arbitration, as provided herein, such request or demand for arbitration shall be made no later
than six (6) months from the date said claim, dispute or other matter was known or should recently have
been known by the party requesting arbitration. Any failure to therefore timely demand arbitration shall
constitute a bar to prevent the filing of an untimely claim. This provision shall not however expand or
extend any date or limitation on institution of legal equitable proceedings would be barred by the
applicable statute of limitations.
13.6 This agreement to arbitrate shall be specifically enforceable under the prevailing
arbitration law. Any award rendered by arbitrators shall be final and enforceable by any party to the
arbitration, and judgment may be entered upon it in accordance with the applicable law and any court
having jurisdiction thereon.
ARTICLE 14
NOTICE
14.1 Service of all notice under this Construction Agreement shall be sufficient if given
personally, by a nationally recognized delivery service, or mailed to the party involved at his or its
respective address hereinafter set forth, or at such address as any party may provide in writing from time
to time by certified mail, restricted delivery.
To the Contractor: Harry L. Smith & Sons, Inc,
5943 Devonshire Heights Road
Harrisburg, PA 17112
To the Owner Robert V. Gothier, Jr. and Bonny L. Gothier
1000 North Front Street, Suite 500
Wormleysburg, PA 17043
(717) 731-0700
14.2 All such notices shall be deemed to have been given on the date delivered in person, or
mailed by registered or certified mail, postage prepaid, restricted delivery, and which latter event it is
deemed to have been given five (5) business days after deposit of any such mailing.
ARTICLE 15
INSURANCE
15.1 Indemnity. Contractor agrees to indemnify and hold Owner harmless from all claims
for bodily injury and property damage (other than the work itself and other property insured under
paragraph 16.2) that may arise from Contractor's operations under this Agreement, except those claims
resulting from the negligent or intentional actions of Owner or any subcontractors or materialmen of .
Owner or parties under Owner's direction, responsibility or control.
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15.2 Contractor's Liability Insurance. Contractor shall purchase and maintain such
insurance as will protect it from claims under workmen's compensation acts and other employee benefit
acts, from claims for damages because of bodily injury, including death, and from claims for damages to
property which may arise out of or result from Contractor's operation under this contract, whether such
operations be by it or by any subcontractor or anyone directly or indirectly employed by any of them.
This insurance shall be written for not less than One Million Dollars ($1,000,000.00) single limit and
shall include contractual liability insurance as applicable to Contractor's obligations under this
Agreement. All subcontractors will be required to maintain current certification of insurance on file at
the Contractor's office showing in force comprehensive general liability, commercial automobile
liability, and workmens' compensation insurance.
15.3 Owner's Liability Insurance. Owner shall be responsible for purchasing and
maintaining liability insurance in an amount not less than One Million Dollars single limit and shall list
Contractor as an additional insured on the policy.
15.4 Owner's Property Insurance. Owner shall purchase and maintain property insurance
upon the entire dwelling home at the site to the actual cash value thereof. This insurance shall insure
against the perils of fire, extended coverage, vandalism, and malicious mischief. Contractor shall be a
certificate holder of Owner's contract at all relevant times which must contain a provision that same will
not be canceled with less than fifteen (15) days' notice to Contractor. Furthermore, in the event of
casualty loss at any time when there is any outstanding amounts due Contractor, Owner hereby
authorizes Contractor to notify such insurance carrier to hold said sum then claimed due in trust prior to
payment to Owner pending written agreement of Owner and Contractor. Owner shall provide a copy of
the policy to Contractor prior to commencement of work. Furthermore, by obtaining such insurance,
Owner waives any and all rights of subrogation against Contractor, his subcontractors, officers, agents
and employees for personal injury and/or for loss or damage to the dwelling home to be constructed
during the construction to the extent that any such loss or damage is covered by insurance. Owner
covenants to timely notify, in writing, the insurance carrier of,this waiver which shall be binding upon
owner's tamer(s).
15.5 By obtaining such insurance herein provided, each party shall waive all rights against
each other for damages caused by any peril or loss covered by insurance hereunder and covenants to
timely notify in writing the insurance carrier of this waiver which shall be binding upon each party's
insurance carriers.
ARTICLE 16
CONCEALED OR UNKNOWN CONDITIONS
16.1 The Contract Price is for the materials and labor in construction of the contract work.
Owner shall pay for any additional costs involved in providing extra engineering or foundation work
which may be required if Contractor encounters abnormal or unusual subterranean conditions during, the
course of construction including, but not limited to:
(A) Cost of removal of any rock in making excavation for foundation walls, sewage
or water lines.
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(B) Additional material necessary for the construction of footers and foundation that
may be required in excess of blueprint specifications.
(C) The cost of labor and.materials needed to divert or control surface water found
during the course of construction.
16.2 Contractor shall, before such conditions are disturbed, notify Owner of (1) subsurface
or latent physical conditions at the site differing materially from those indicated in this contract or
(2) unknown physical conditions at the site that are of an unusual nature. Owner shall promptly
investigate the conditions, and if he finds that such conditions do materially so differ and cause an
ncrease in Contractor's costs, or of the time required for performance of any part of the work under this
contract, whether or not changed as a result of such conditions, a specific cost adjustment shall be made
and the Contract Price and time for performance adjusted by Change Order.
ARTICLE 17
NOTIFICATION OF DELAYS AND EXTENSIONS OF TIME
If Contractor is delayed at any time in the progress of the construction work by any act,
failure or neglect of Owner or by changes ordered in the Project or by labor disputes, fire, unusual delay
in transportation, adverse weather conditions not reasonably anticipated, unavoidable casualties, or any
causes beyond Contractor's control as provided in Article 19, or a delay authorized by Owner, Contractor
shall notify Owner in writing within fifteen (15) days of the occurrence and then the date for substantial,
completion shall be extended for the period of such delay.
ARTICLE 18
FORCE MAJEURE
If either party shall be delayed or hindered in or prevented from the performance of any act
required hereunder by reason of war, fire or other casualty, an act of God, strike, lock-out, labor trouble,
shortage of materials or equipment or inability to procure same, failure of power, restrictive
governmental laws or regulations, riot, insurrection, or other causes beyond the control of the party
delayed, then performance of such act shall be excused for the period of such delay.
ARTICLE 19
RIGHT OF INGRESS AND REGRESS
It is a covenant of the contract that Owner does hereby grant and convey to Contractor and its
successors and assigns, full and complete rights of ingress, regress and such occupancy or possession of
the premises hereinbefore described as shall reasonably be required by Contractor for the aforesaid
construction. Any refusal thereof after written notice from Contractor shall be a default by Owner
whereupon the full amount of the Contract Price shall become immediately due and payable.
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ARTICLE 20
DEFAULT
20.1 Default by Owner. If Owner shall default hereunder prior to the beginning of
instruction work, Contractor shall retain the-money paid by Owner as liquidated damages, and this
contract shall thereupon terminate. If no money has been paid, Owner agrees to pay Contractor the sum
of $ as liquidated damages and, upon such payment, neither party shall have any
further obligations to the other hereunder. The parties have agreed that, by virtue of the difficulty in
determining Contractor's damages, said sum is an agreed amount as liquidated damages and not as a
penalty. if, following commencement of any work, Owner fails to make a progress payment to
Contractor, or the final payment, as herein provided through no fault of Contractor, or to timely fulfill
any other material obligation of Owner, specified in this Agreement, Contractor may, upon fifteen (15)
days written notice to Owner, terminate the contract and recover from Owner payment for all work
completed and for any proven loss sustained, including reasonable profits all damages permitted by law
and reasonable attorneys' fees if Owner does not cure within said period.
20.2 Default by Contractor. If Contractor, without good or legal cause, defaults or neglects
to carry out the work in accordance with the Contract Documents or fails to perform any material
provision of the contract, Owner may, after twenty (20) days' written notice to Contractor specifying the
default, and without prejudice to any other remedy he may have, make good such deficiencies and may
deduct the cost thereof from the payment then or thereafter due Contractor or, at his option, may
terminate the contract and take possession of the site and of all materials, equipment, tools, and
construction equipment and machinery thereon owned by Contractor and may finish the work by
whatever reasonable method appropriate, and if the unpaid balance of the Contract Price exceeds the
expense of finishing the work, such excess shall be paid to Contractor, but if such expense exceeds such
unpaid balance, Contractor shall pay the difference to Owner. If Contractor materially breaches this
Agreement, and the breach is uncured after the notice period or Contractor has not diligently proceeded
to cure said default prior to Owner being entitled to possession, Owner and Contractor shall promptly
meet and agree as to the balance due to Contractor for work and materials properly performed. pursuant
to this Agreement for which payment has not previously been made, whereupon said sum shall be placed
in escrow pending completion of the dwelling which the same said sum shall be paid with any interest
accruing thereon to Contractor absent demonstrable increased costs which Owner incurred to complete
the home but only in accord with Contractor's plans and specifications.
20.3 The remedies herein provided shall be in addition to and not in substitution for the
rights and remedies which would otherwise be vested in either party, under the terms of this Agreement,
or otherwise, all of which rights and remedies are specially reserved by each, and the failure to exercise
the remedies herein provided shall not preclude the resort to any appropriate remedy, nor shall the use of
the special remedies hereby provided prevent the subsequent or concurrent resort to any other remedy
which by law would be vested in each for the recovery of damages, moneys due, or otherwise, in the
event of a breach of any of the covenants by Owner.
ARTICLE 21
OWNERSHIP OF MATERIALS
It is mutually agreed that all materials delivered to and/or used in the construction of the
premises shall be regarded as the property of Contractor until paid for by Owner. All materials, after use
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ui,:onstruction of the premises, shall be regarded as the property of Contractor until paid for by Owner.
No materials shall be removed without consent of the Contractor.
ARTICLE 22'.
SEPTIC SYSTEM
After final approval of the installation of the septic system by the Sewage Enforcement Officer,
or other officer charged with this duty, of the municipality in which the system is installed, Contractor
shall have no further responsibility for any malfunctions or other problems which may be encountered
with respect to the system, whether due to design or any other cause whatsoever, except workmanship for
one year. Contractor's responsibility for the system shall be limited to Seven Thousand Five Hundred
and 00/100 ($7,500.00) Dollars as set forth in the allowance schedule.
ARTICLE 23
REAL ESTATE TAXES
All real estate taxes, charges and assessments are the responsibility of Owner. Owner shall
indemnify and hold harmless Contractor from any and all claims, demands or liabilities, including
attorneys' fees, arising from the imposition of any such real estate taxes and assessments.
ARTICLE 24
GENERAL PROVISIONS
24.1 It is further hereby understood that Owner reserve their right and that of their
agents, to inspect the said premises at any reasonable time that would not unreasonably interfere with
Contractor's work. Contractor shall reasonably cooperate with such inspections. Owner assumes all risk
for personal injury by doing so.
24.2 In the event of breach of this Agreement by Contractor, Contractor however shall
not, in any event, except as provided herein, be liable for any indirect or consequential damages. costs,
or expenses to include loss of use, loss of opportunity, loss of market value, loss of rental value or similar
such indirect claims.
24.3 Words of any gender herein shall include any other gender, and the singular shall
include the plural and visa versa whenever the same is necessary to produce a fair and meaningful
construction.
24.4 This Agreement shall not be altered, amended, changed or modified except in writing by
the parties.
24.5 No third party shall have any rights or benefits from this Construction Agreement, other
than Owner's secured lender. In the event any provision of this Agreement is found to be illegal and
unenforceable shall be severable from the contract and the balance of the contract may be enforced as
though such provision were not contained herein.
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24.6 This Agreement contains the entire agreement between Contractor and Owner. There are
m ether terms, obligations, covenants, representations, statements or conditions, oral or otherwise, of
?uiy kind whatsoever concerning the construction, except as stated in writing in this Agreement.
24.7 This Agreement, the rights and obligations as herein provided, shall be binding upon to
he benefit of the parties, their respective successors and permitted assignees.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first
tbove written.
ATTEST:
WITNESS:
CONTRACTOR
HARRY L. SMITH & SONS, INC.
By:?-r
ry L. Smith /
OWN
38675
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NONWARRANTABLE CONDITIONS
The following is a statement of conditions that are not subject to Contractor's Limited
Warranty and explains some of the changes and maintenance items that may occur in your new
home over the first year or so of occupancy. Your home will require more maintenance and care
than most products, since it is made up of many different components, each with its own special
characteristics. Also, an owner must understand that, like other products made by humans, a
house is not perfect. It will show some minor flaws and unforeseeable defects, and it may
require some adjustments and touching up.
All residential construction goes through a period of settlement and, as the seasons
change, periods of expansion or contraction will occur. As a result, the home will experience
minor material changes which are unavoidable and are considered normal. The owner should
also be aware that he/she is responsible for proper and timely home maintenance. It is helpful to
the owner's maintenance program to keep a color chart of the different materials used on the .
construction and a small supply of corresponding colored paint, stain or grout for easy touch-up.
Damage caused by owner negligence, improper maintenance or changes, alterations or additions
performed by anyone other than the Contractor, his employees, or subcontractors directed by the
Contractor is excluded from the Warranty.
As described in the Limited Warranty provided to you, which this statement of
Nonwarrantable Conditions is made part of, Contractor will correct certain effects that arise
during defined time periods afer construction is completed. Other items that are not covered by
the Contractor's Warranty may be covered by manufacturers' warranties. There are some
conditions, however, that are not covered under the Contractor's Warranty. It is important for
you to read these carefully and understand that you have not contracted for the Contractor to
correct certain types of problems that may occur in your new house. These guidelines will alert
you to certain areas of maintenance that are the responsibility of the new homeowner, and that
could lead to problems if they are neglected.
The following is a list of an outline of some of the conditions and components that are not
warranted by the Contractor. Please be sure you understand this list. Ask the Contractor if you
have any questions and feel free to consult your attorney before signing the acknowledgment and
the Limited Warranty Agreement.
s s
Nonwarrantabie Conditions
Concrete foundations, walks, drives, and patios can develop hairline cracks less
an 1/4" inch in width not affecting the structural integrity of the building. There is no known
ethod of eliminating this condition, which is caused by characteristics of expansion and
ntraction. It does not affect the strength of the building and is not a condition covered by any
irranty.
2. Masonry and mortar can develop hairline cracks due to shrinkage in either the
mortar or brick. This is normal and should not be considered a defect. It is not covered by any
warranty.
3. Wood will sometimes crack or "spread apart" due to the drying out process. This
is most often caused by the heat inside the house or the exposure to the sun on the outside. This
is normal and considered a maintenance item to be cared for by the homeowner.
4. Drywall (sheetrock) will sometimes develop nail pops or settlement cracks- This
is a normal part of the drying out process and an item that can be easily handled by the
homeowner with spackling during normal redecorating. However, if the homeowner wishes, we
will send in a repairman. at the end of one year and make necessary repairs. Our repairs will not
include repainting.
5. Floor Squeaks: After extensive research and writing on the subject, it has been
concluded that much has been tried but little can be done about floor squeaks. Accordingly, floor
squeaks are not covered by the builder's warranties. Generally, they will appear and disappear
overtime with changes in weather.
6. Floors: Your floors are not warranted for damaged caused by neglect or the
incidents of use. Wood, tile and carpet all require maintenance. Floor casters are recommended
to prevent scratching or chipping of wood or tile; clean stains from carpets or wood or tile
immediately to prevent discoloration. Carpet has a tendency to loosen in damp weather and will
stretch tight again in dryer weather.
7. Caulking: Exterior and interior caulking in bathtubs, shower stalls, and ceramic
the surfaces will crack or bleed somewhat in the months after installation. This is normal and
should not be considered a problem. This is not covered by the warranty and is a minor
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occurrence to be maintained by the homeowner. However, if the homeowner wishes, we will
send in a repairman at the end of one year and make necessary repairs.
8. Brick. Discoloration: Most bricks may discolor due to the elements, rain run-off,
weathering, or bleaching. Thus, the color of the bricks is not considered a warranty item.
9. Broken Glass: Any broken glass or mirrors which are not noted on the final
inspection form will not be covered, excluding cracks or broken glass due to improper
installation within the warranty period.
10. Frozen Pipes: The homeowner must take precautions to prevent freezing during
severe cold weather, such as removing outside hoses from sillcocks, and turning off the water
system if the house is to be left for extended periods during cold weather. Frozen pipes or
sillcocks not caused. by defects in material or workmanship will not be considered a warranty
item.
11. Stained Wood: All items that are stained will normally have a variation of colors,
due to the different texture of the woods. Doors that have panels will sometimes dry out and
leave a small crack of bare wood. This is due to weather changes. None of these is a warrantable
condition (to the extent within normal tolerances).
12. Paint: Good quality paint has been used internally and extemally.on your home.
Nevertheless,. exterior paint can sometimes crack or check. This is not a defect in the paint, but it
is most often caused by other sources. You should avoid allowing lawn sprinklers to hit painted
areas, washing down painted areas, etc. Inside, do not scrub latex-painted walls, and be aware of
the newly painted wall as you are moving furniture. The best paint will be stained or chipped if it
is not cared for properly. Any defects in painting not caused by defects in materials or initial
application that are not noted at final inspection are nonwarrantable conditions.
13. Cosmetic Items: The upkeep of cosmetic aspects of your home is your
responsibility. You have not contracted with the Contractor to cover ordinary wear and tear or
other occurrences subsequent to construction that affect the condition of features in your home.
Chips, scratches, or mares in tile, woodwork, walls, porcelain, brick, mirrors, plumbing fixtures,
marble and Formica tops, lighting fixtures, kitchen and other appliances, doors, paneling, siding,
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screens, windows, carpet, vinyl floors, cabinets, etc., which are not recognized and noted by you
at final inspection are nonwarrantable conditions.
14. Plumbing: Dripping faucets not caused by defects in materials or workmanship,
toilet adjustments, and toilet seats are covered by the builder's warranty for a thirty-day period
only. After that, they are the owner's responsibility. If the plumbing is "stopped up" during the
warranty period and the person servicing the plumbing finds foreign material in the line, the
owner will be billed for the call.
15. Alterations to Grading: Your lot has been graded to insure proper drainage away
from your home. Should you wish to change the drainage pattern due to landscaping, installation
of patio or service walks, or other reasons, be sure a proper drainage slope is retained. We
assume No Responsibility for the grading or subsequent flooding or stagnant pool formation if
the established pattern is altered.
16. Lawn and Shrubs: We accept No Responsibility for the growth of grass or shrubs.
Once we grade and properly seed, and/or sod and fertilize, it is for the homeowner to water and
spread ground cover to prevent erosion. We will no.t regrade a yard, nor remove or replace any
shrubs or trees, except for those which are noted as diseased at final inspection.
17. Roof Damage: After the initial one year period, the warranty on your roof is for
material only and is prorated over the period of the lifetime use of the roof. Warranty claims for
any defects in materials will be handled with the manufacturer with our assistance. The
Contractor will be responsible for any damages caused by walking on the roof or by installing a
TV antenna or other item on a roof.
18. Heating and Air Conditioning: Your heating and air conditioning is covered by a
manufacturer's warranty. It is the owner's responsibility to be sure that filters are kept clean and
changed as required. Failure to do so may void your warranty. It is also a good policy to have
the equipment serviced or checked at least yearly.
19. Humidity System: (to be inserted)`
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VWe acknowledge having read, understood and received a copy of the above outline of
nonwarrantable items. We understand and agree that these are conditions for which we have not
contracted and will not hold the Contractor liable.
Owner
Robert V. Gothier, Jr.
Owner:
5"- 81
Bonn . Gothier
38944.
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LIMITED WARRANTY AGREEMENT
This LIMITED WARRANTY AGREEMENT is entered into by HARRY L. SMITH & SONS,
INC. (hereinafter, "Contractor") and Robert V. Gothier, Jr. and Bonny L. Gothier (hereinafter, '
collectively "Owner") in conjunction with that certain Construction Agreement between Contractor and
Owner dated May 10 , 2002 for the construction of an improved dwelling home located at 99 Manor
Drive, Dillsburg, Monaghan Township, York County, Pennsylvania.
1. What is Covered by the Warranty.
Contractor warrants that all construction related to the home performed by Contractor and
subcontractors retained and selected by Contractor has been performed in substantial conformity with the
Plans and Specifications and approved change orders pursuant to the Construction Agreement.
Contractor warrants that all materials used in construction are new and free from defect and that
construction will be of good and workmanlike quality determined by the standards of construction in the
Harrisburg, Pennsylvania area. Contractor warrants that for a period of one (1) year from the date of
substantial completion, Contractor will adjust or correct minor defects, omissions, or malfunctions, such
as missing equipment or hardware; sticking doors, drawers and windows; dripping faucets; and other
minor malfunctions reported by Owner upon inspection of the property.
Furthermore, within one (1) year from the date of substantial completion, Contractor will repair
or replace, at Contractor's option, any defective materials or work (except work not covered) and any
latent defects in material or workmanship by the standards of construction relevant in the Harrisburg,
Pennsylvania area. A latent defect is defined as one which was not apparent at the time of initial
occupancy. Owner agrees to accept a reasonable match in any repair or replacement in the event the
original item is no longer available.
2. What is Not Covered.
A. This Limited Warranty does not cover damage resulting from fires, floods, storms,
electrical malfunctions not caused by defective materials or workmanship, accidents, acts of God; or
damages from alterations, misuse or abuse of the covered items by any person; or damage,resulting from
owner's failure to observe any operating instructions furnished by Contractor at the time of installation:
failure of Owner to regularly and properly maintain the home and its systems, such as the humidifier
system, for example; or damage resulting solely from a malfunction of telephone, gas company, power
company, or water company equipment or lines.
B. Any items fiimished or installed by Owner, or subcontractors selected or retained by
Owner, are not covered by this Limited Warranty.
C. To the extent a manufacturer is responsible, this Limited Warranty does not cover any
appliance, piece of equipment, or the item, which is a "consumer product" for the purposes of the
Magnuson-Moss Warranty Act, 15 U.S.C. Section 2301 et seq., installed or included in Owner's
property. The following are examples of such appliances and equipment, though not a,ery home
a a
includes all of these items and some homes may include appliances or equipment not in this list:
refrigerator, range, space heater, washing machine, dishwasher, garbage disposal, ventilating fan, air
conditioner, heat pump or furnace.
(l) Contractor represents it has made all such excluded warranties available for
Owner's inspection and Owner acknowledges that they have received copies of any such warranties.
(Owner's Initials)
(2) Contractor hereby assigns, to the extent that they are assignable, and conveys
to Owner all warranties provided to Contractor on any manufactured items that have been installed or
included in the Owner's property. Owner accepts this assignment and acknowledges that, to the extent
such warranties are assignable, Contractor's only responsibility relating to such items is to lend
assistance to Owner in settling any claim resulting from the installation of these products-
(Owner's Initials)
(Contractor's Initials)
D. The non-warrantable conditions, and any damage resulting therefrom, as set forth on the
five (5) page document titled "Non-Warrantable Conditions" executed between the parties
contemporaneously herewith are, of course, not covered by this Limited Warranty.
E. Any injury to persons or damages to personal or real property, other than the home. in
whole or in part, which may be a consequence of or incident to or result from any defects in materials or
performance of the work is excluded.
3. Remedies and Limitations.
A. Owner understands that the sole and exclusive remedy under this Limited Warranty
Agreement is repair and replacement of any portion of the improved dwelling horse so covered by this
Limited Warranty by Contractor at no cost to Owner.
(Owner's Initials)
B. Owner also understands that, with respect to any claim whatsoever asserted by Owner
against Contractor, there will be no right to recover or request compensation for, and Contractor shall not
be liable for any monetary damages, or incidental, indirect,.consequential damages, or for secondary, or
punitive damages, absent fraud or Contractor's gross negligence. Contractor shall not be responsible for
any monetary sum for breach of this Warranty, absent Contractor's knowing failure to perform its
obligations hereunder after written notice. Any corrective work shall not extend the term of the Warranty
for any non-corrected item, but shall extend the Warranty for a period of one (1) year for only the
specific item(s) corrected, repaired or replaced.
(Owner's Initials)
a s
C. This Limited Warranty is personal to the original purchaser and does not run with the
Dperty or the items contained in the house. The original purchaser may not assign, transfer, or convey
s Warranty without the prior written consent of Contractor, which consent shall not be unreasonably
thheld.
4. How to Obtain Warranty Service.
If a problem develops during the one (1) year warranty period, Owner shall promptly notify the
Contractor of the specific problem, in waiting, and what may be necessary to correct or repair it, if
known. Contractor, absent unforeseen circumstances, will commence performing its obligation under
this Limited Warranty within thirty (30) days of receipt of request, and will diligently pursue these
obligations until completion. Owner shall give Contractor full opportunity to, inspect the claimed defect
prior to any work commencing. If the problem may appear to require immediate attention, Owner make a
report by telephone or facsimile and Contractor shall use his best efforts to address the matter
complained of in a prompt fashion. If Owner is unclear whether the problem is or is not warranty work,
Owner shall contact the Contractor.
. Repair work will be done during Contractor's normal working hours. Owner agrees to provide
Contractor or Contractor's representative access to the house, and the presence during the work of a
responsible adult with the authority to approve repair and sign a call-back ticket upon completion of the
repair.
If the problem is covered under a manufacturer's warranty, Owner shall follow the instructions
provided with such warranty. In the absence of a written manufacturer's warranty, Contractor should be
contacted to obtain information and assistance in filing a claim.
5. Arbitration.
Any claim or controversy arising out of this Limited Warranty or breach thereof shall be
controlled by the arbitration provisions set forth in the Construction Agreement between Contractor and
Owner.
THIS LIMITED WARRANTY IS THE ONLY EXPRESS WARRANTY EXTENDED TO
OWNER BY CONTRACTOR. ANY ITEM OR CONDITIONS NOT SPECIFICALLY COVERED BY
THIS WARRANTY, OR IN THE DOCUMENTS HEREIN REFERRED, ARE EXCLUDED FROM
COVERAGE AND ARE THE RESPONSIBILITY OF OWNER. rf IS EXPRESSLY UNDERSTOOD
THAT THIS LIMITED WARRANTY IS IN LIEU OF ANY AND ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
HABITABILITY.
• s
6. Specific Legal Rights
THIS LIMITED WARRANTY GIVES THE OWNER SPECIFIC LEGAL RIGHTS WHICH
iHALL NOT LIMIT OTHER NON-WARRANTY RIGHTS WHICH MAY BE AVAILABLE TO
)WNER. .
We acknowledge having read, understood and received a copy of this Limited Warranty
lgreement.
FITNESS:
CONTRACTOR:
HARRY L. SMITH & SONS, INC.
By: ,.2?^?
H 90y L. Smith, President
Dated:
38762
i
f
ROBERT V. GOTHIER, JR and
BONNY L. GOTHIER,
Owner
V.
HARRY L. SMITH & SONS, INC.,
Contractor
s
IN THE COURT OF COMMON PLEAS
YORK COUNTY, PENNSYLVANIA
NO.
STIPULATION AGAINST LIENS
WHEREAS, ROBERT V. GOTHIER, SR. and BONNY L. GOTHIER, of 99
Manor Drive, Dillsburg, Pennsylvania 17019 (the "Owner") the
owner of the hereinafter described tract of land, has executed or
is about to execute contemporaneously herewith a contract with
HARRY L. SMITH & SONS, INC. of 5943 Devonshire Heights Road,
Harrisburg, Pennsylvania 17112 (the "Contractor") for
improvements to the premises located at 99 Manor Drive,
Dillsburg, Monaghan Township, York County, Pennsylvania, more
particularly described on "Exhibit An attached hereto and made a
part hereof (the "Premises").
NOW, May _, 2002, before any authority has been given by
said owner to the said Contractor to commence work on said
Premises or to otherwise construct any improvements thereto, or
to purchase materials for the same, or to enter into any
contracts with any subcontractors, or materialmen, or to
authorize any purchases by or through any subcontractors or
materialmen, in consideration of the making of said contract with
the owner and the further consideration of one Dollar ($1.00), to
contractor paid by said owner, and with the intent of all parties
to be legally bound hereby, it is agreed that no lien shall be
filed against the building or Premises or any part thereof, by
a
5.
the Contractor or any subcontractor, or by any of the materialmen
or workmen or any other person for any labor, or materials
purchased, or extra labor or materials purchased, for the
building and improvements to the Premises (including hereafter
changes made thereto), the right to file liens being expressly
waived.
It is the full intent of the Contractor, for itself and for
any subcontractors or materialmen claiming for themselves, or-by,
through or under the contract or the Contractor, that the right
to file a mechanic's lien, under the provisions of law and/or of
Acts of Assembly in such cases made and provided, for.work done
or materials furnished in and about the building and improvements
to the Premises above described is hereby waived.
WITNESS our hands and seals the day and year first above
written.
fitness
Witness
a 8
Attest:
HAnY L . SMITH &
SONS, INC-
--
By:
a
Exhibit A
J
ALL THAT CERTAIN lot or tract of land situate in Monaghan
Township, York County, Pennsylvania, being more particularly
bounded and described as follows, to wit:
BEGINNING at a point on the southern right-of-way line of the
Dillsburg Road, also known as Bailey Road, LR 66001, at the line
dividing lands now or formerly of Jacob J. Myers, et al. and
lands now or formerly of Florence Eckels; thence along said
dividing line, South 12 degrees 47 minutes 34 seconds East, a
distance of 2,637.48 feet to a point dividing Lot 8 and Lot 5 on
the hereinafter mentioned plan of lots; thence, along the line
dividing Lot 8 from Lots 5 and 6 on the hereinafter mentioned
plan, South 67 degrees 07 minutes 30 seconds West, a distance, of
1,187.44 feet to a point on the line dividing Lots 8 and 6 on the
said plan; thence, continuing along the said dividing line, and
along a curve to the left having a radius of 275.00 feet, an arc
distance of 370.72 feet to a point on said dividing line; thence,
continuing. along said dividing line, South 10 degrees 6 minutes
54 seconds East, a distance of 263.36 feet to a point on said
dividing line; thence, continuing along said dividing line, South
o9 degrees 09 minutes 01 second East, a distance of 436.79 feet
to a point on the northern right-of-way line of Cemetery Road;
thence, along said northern right-of-way line, North 73 degrees
22 minutes 46 seconds West, a distance of 55.52 feet to a point
at the line of lands now or formerly of the Jennie Fishel Estate;
thence, continuing along said lands, North 09 degrees 09 minutes
O1 second West, a distance of 422.12 feet to a point at the lands
now or formerly of Robert J. Dennison; thence, along said lands,
North 10 degrees 06 minutes 54 seconds West, a distance of 262.49
feet to a point; thence along the line dividing Lots 8 and 6A on
the hereinafter mentioned plan and along a curve to the right
having a radius of 325.00 feet an arc distance of 276.27 feet to
a point on the line dividing the said lots; thence, along said
dividing line and continuing along lands now or formerly of John
W. Heller and wife, North 14 degrees 13 minutes 20 seconds West,
a distance of 578.70 feet to a point at said lands; thence,
continuing along the line of lands now or formerly of Heller,
South 59 degrees 31 minutes 02 seconds West, a distance of 82.19
feet; thence, along lands now or late of Dennison, South 74
degrees 16 minutes 25 seconds West, a distance of 79.21 feet to a
point on the line of Elliot Road, as shown on the hereinafter
mentioned plan of lots but as is unopened as of this date;
thence, North 10 degrees 38 minutes 03 seconds East, a distance
of 52.44 feet to a point; thence, continuing along the line of
the said Elliot Road, and along a curve to the right having a
radius of 125.00 feet an arc distance of 1.50 feet to a point at
the corner of Lot 1 on the hereinafter mentioned plan; thence,
along said Lot 1, North 78 degrees 35 minutes 54 seconds East, a
distance of 891.10 feet to a point; thence continuing along said
lot, North 13 degrees 06 minutes 43 seconds West, a distance of
568.39 feet to a point; thence, continuing along Lot 1 and Lot 4
of said plan, North 26 degrees 31 minutes 37 seconds East, a
distance of 472.46 feet to a point; thence, along Lot 4, North 61
degrees 17 minutes 27 seconds East, a distance of 593.60 feet to
a point on the line of lands now or formerly of Bentzel; thence,
along the lands now or formerly of Bentzel, South 48 degrees 57
minutes. 10 seconds East, a distance of 60.49 feet to a point;
thence, continuing along lands now or formerly of Bentzel, North
45 degrees 02 minutes 50 seconds East, a distance of 658.35 feet
to a point; thence; continuing along the lands now or formerly of
Bentzel, North 12, degrees 50 minutes 17 seconds West, a distance
of 916.36 feet to a point on the southern right-of-way line of
the Dillsburg Road; thence, along said right-of-way line, North
79 degrees 12 minutes 26 seconds East, a distance of 36.20 feet
to the point or place of BEGINNING.
BEING all of Lot 8 as shown on the final plan of the Deerhead
Manor Subdivision prepared for the Myers, Lock, Ashway and Titus,
as prepared by William E. Secra and Associates and dated August.
15, 1975, and all as recorded in the Recorder of Deeds Office in
and for York County, Pennsylvania, in Plan Book Y, Page 414.
said lot containing 54.224 acres, as shown on such plan.
TOGETHER with and subject to, for all times now. and in the
future, the right of ingress, egress and regress over, through
and across a certain private road extending over and across lands
adjoining the aforementioned lands to the west and running from
the public road leading to Mount Pleasant (being known variously
as the Mount Pleasant Road, Manor Drive, and Township Route 894),
eastwardly over and across property now or late of Danner to the
western boundary line of the aforementioned lot, as the same is
now located and maintained, and as the same is shown on the
aforementioned plan of lots, and as the same is now used by the
Grantors herein, Heller, and Dennison, and to the Grantees, their
heirs, assigns, and successors, here and forever hereafter.
BEING the same premises The Peter M. Portmann Revocable
Declaration of Trust, by deed dated May 25, 2001, and recorded
June 11, 2001, in the Office of the Recorder of Deeds in and for
York County, Pennsylvania, in Record Book 1441, Page 4654,
granted and conveyed unto, Robert V. Gothier, Jr. and Bonny L.
Gothier.
SPECIFICATIONS 0
New Construction - Residential
Owner/Mortgagor: Robert V. Gotbier, Jr. and Bonny L Gothier
1772 North Meadow Drive, Mechanicsburg, PA 17055
Address of Property: 99 Portman Drive, Dillsburg,PA 17019
Contractor. Harry L Smith & Sons, Inc.
5943 Devonshire Heights Road
Harrisburg, PA 17112
(717) 545-5842
'Me coomictor shall provide all necessary labor and materials and perform all work required to
complete the building within the scope of these specifications and in accordance with the plans attached hereto
and made a part hereof
The contractor and all sub-contractors shall comply with all building and sub-division ordinances and
sanitary laws applicable to this work
A survey of the building site will be fiunisbed by the owner. The awrer shall also establish the location
of the building and the grade level The contractor is responsible for the laying out of the building. The
contractor shall furnish insurance as required by law and to comply with the requirements of the mortgagee.
EXCAVATION: All top soil from immediate area of the building and approximately 39 around shall be
scraped and piled on the lot away from the building site. Excavation for footers shell
extend to solid undisturbed earth, at least 6" below beat first level.
FOOTERS:
Size- 20" x 10"
Material: concrete
BASEMENT WALLS:
S'ne: 10" concrete, 9' High
Material: concrete; crawl space 10" C.M.U.; Garages and Porches 8" C.M.U.
Steel I-Beam Size: 10" x 26 Lb.
Material: steel
Column Supports Type: 4" StedFJi.A.
WATERPROOFING: Foundation coating sprayed tar
Area Welk, Material: none
Size:
Drain Tile Size: 8" Form-A- Drain exterior lor drainage / 8" Form-A-Drain for radon interior of
footer / Radon piped tlhru roof/ Radon fan by Owner
Connected to. Sump Pit pumped to Outside House
Top of foundation to be determined above or below crown of road w per plans.
BASEMENT FLOOR
Mix: 3000 lbs.
Thickness: 4" Concrete
No. Floor Drama:, I
Connected To: Some Pit
FR-ArvM,'^v CARPENTRY:
Sin Seal on Foundation Wall
Sill Size: 2 x 6
Material: pressure treat
1st Floor Joists Size: 12"
Material: TH
1st Floor Joists over girder or beam (Yes) or secured by ledger method (No)
Sub Floor Size: 3/4"
Material: Fir T.G. Plywood
How laid: nailed and glued
Bridging Material: NIA
Spacing: N/A
Ll
z
FRAMING CARPENTRY(CONTINUED):
Exterior Wall Studding Sire 2 x 6
Material: spruce
EXTERIOR WALL PLATES:
Size: 2 x 6
Material: spruce
EXTERIOR WALL NO. OF PLATES :
Bottom: I
Top: 2
}
EXTERIOR WALL SHEATING:
Size: 1/2"
Material: Fs Plywood
SIDING:
Material: Dryvit and L and S Stone
INTERIOR WALL:
Stud Size: 2x4
Materiah spruce
Plates size: 2 x4
Material:
No, Plates Bottom: 1
No. Plates Top: 2
k
ia.
HEADERS, ALL FRAME WALLS - Each header will bear on at least one jack stud per end.
Opening up to 3' Header Size: 2 x 8"
Material: spruce
Opening Yin 6' Header Size: 2 x10"
Material: spruce
Opening 6'- 12'Header. Size: 2 x10"
Material: spruce
Opening over 12' Header Sir: 2 x12"
Material. spruce
BASEMENT STAIRWAY:
Sir Horses: pro-manufficNred Yellow pine
No. Hotsw:
Rise:
Tread:
Riser Material and Sim:
Tread Material and Size:
JOISTS (For Load Carrying Floor):
Size: 12"
Material: T.LL
Placed: 16" o.c.
Bridging Material: N/A.
Spaced: NIA
SUB-FLOORING.
Size: 3/4"
Material: T.G. Fir Plywood
How Laid: nailed and glued
CEILING JOISTS:
Trusses Area 2' o.c.
Size:. Stick Built Areas 2 3 8
Material: Spruce
Placed: 16" ox.
Bridging Material: NIA
Spaced: N/A
J
3
ROOF RAFTERS:
Trusses Area 2' o.c.
Size: Stick Built Areas 2 x 8
Material: spruce
Spaced: 16" o.c.
RIDGE.
Size: 2 x 10 at Stick Built Areas
Material. spruce
If Hip toot, hip rafter Sim- 2'x 10
Material: Spruce
ROOF SHEATHING MATERIAL: CDX Fir Plywood .
Size:.12"
ROOFING:
U
Underiaw Material:. 1516. felt
Shingle Weight: GAF or ELK Architectural Design 30 Year Warranty
Shingle Exposure: 5"
How Fastened: nailed -
CORNICE:
Face Board Material: Spruce
Size: 2 x 8
SoffitMateial: Aluminum Alcoa
Size: As plans.
Rakeboard Material: 2 x 8 Size: As plans.
WINDOWS:
+ Type. Lincoln Aluminum clad with Screens, No Grilles.
EXTERIOR DOORS MATERIAL: By Plan - Allowance
Jamb Size: 6"
Hardware Make: By Allowance Schlage - F Series Plymouth
Hardware Finish: bright brass
Malec Lock: Plymouth
No. Hinges per Door. 3
Size Hinges: 3 1/2"
Hinge Finish: bilift brass
ATTIC VENTH ATION: Ridge Vent
MASONRY ABOVE FOUNDATION:
Material: Land S Pre-Manufwtured Stone
Size: Random -
Manufacturer. L and S _
Mortar Mix: Standard Color
INTERIOR FLOORING: carpet- hardwood&finishing- vinyl- all ceramic tile in all areas -
underiayman and installation - Allowance.
INTERIOR CARPENTRY:
Interior Door Style:
Thickness: 13/8" Flush Hardboard 6'8" Pre-Primed
Material:
No. Hinges: 3
Make Hardware: Plymouth Schlage F-series
Hardware Finish: 605
Jamb Material: Poplar
Size: '/." Paint Grade
Door Stop Material: poplar
Size: 13/8"
Baseboard Material. Poplar
- Sim: %" x 5'/, " Sanitary Paint Grade
Casing: '/. " x 3 '/z " Sanitary-Paint Grade
4
INTERIOR CARPENTRY (CONTINUED):
Window Sill Material: Poplar
Size: 1 '/, " x 4 5/8"
Closet Rods Material: 1 3/8" round white painted steel rods
Closet Shelves Material: Birch plywood
Size: %"
Plumbing Access Panels Material: N/A
Door Bumpers. Ives - Solid Wall mount
Interior WallSurfaceType: Drywall
Thickness: %,"
Interior Decorations Wails: Painted
Trim: Painted - Spray one coat, Brush one coat
Doors. Painted - Spray one coat
Walls: Painted -Spray 2coats
KITCHEN EQUIPMENT: By Allowance $50,000.00
PLUMBING:
Water Supply Pipes Size: 3/4" main line & 1/L" supply to baths: Type L
Material: copper
Drainage Pipes Size: comply with code requirement
Material. p.v.c.
Water Supply.. Public or Private: private: Existing Well
Sewer Private:
New Septic System - Permits By Owner
If Private, Size of Septic Tank: By Design
No. Feet drain field.
Drain connected to:
HEAT: Heat system shall be designed to bat all of the living area to a minimum temperature of 75 ^F
when exterior temperature Is 0 °F.
Type:
Size Duct of Pipe: dud
Material Duct or Pipe:
Fuel: Gas
Size Fuel Storage: N/A
Register or Radiator Type, register
Does Hat Plant Furnish Domestic Hot Water. no
ELECTRIC:
Entrance Cable Size: 320 AND SERVICE
Material:
Fuse or Breaker Box Make: breaker
No. Circuits:
She Wire to Normal Circuits: by code
Size Wire to Range and Oven: by code
No. Convenience Locations: 350 locations Qa $25.00
No. Fixture Hangings. 105
No. G.F.I. Locations: 7
Inspections
No. Overhead Fixtures: light factures allowance
No. Outside Lights and Locations: light fixtures allowance
Will Ali Outlets be Grounded: yes
Will telephone wiring be concealed: yes
s
r
11
INSULATION:
Exterior Wall, Type: R-19
Interior Walt, Type: R-11
Ceiling: R-38 Blown where applicable
Type: fiberglass
5
•
DRYWALL-NEW AND EXISTING WORK. By Allowance $24,900.00
GUTTER AND DOWNSPOUTS:
Size Gutter. 5"
Material: Aluminum
Size Drop: 3"
Material: Aluminum
ChimueyFlashingMaterial: Aluminum
EXTERIOR GRADING:
Slope from House: By Elevation on Plans.
No Fill or Topsoil Hauling on or off lot included in Contract.
WALKS AND DRIVES:
SidewalkL Stamp concrete from New House Front Porch to Existing Sidewalk
New Front Porch Material: Stamp concrete
Existing Front Porch will not be changed.
Garage Floor Material: concrete 3500lbs.
Thickness: 4"
List any special work or material not covered above:
All Permits by Owner.
Excavation Allowance ............... ............................................................... ._ $ 7,500.00
Footer Forms will be 8" Form-A Drain-Interior for Radon, Exterior for Drainage.
Roofing will be GAF or ELK 30 Year Architeciutal NOT Metal -Do not remove existing House Roof.
Lincoln Window Allowance ......... ......................................................... $45,020.00
Two (2) Skylites: 21 '/2 "x 46 7/8", Non vent Velux.
Exterior Doors and Locks Allowance .............................................................. $ 4,600.00
Total Porch and Deck Allowance -E-PAY Flooring''/." x 6' boards on Deck including
Framing Allowance, ......................................................................... $ 10,270.00
Deck Material above Foyer on Balcony to be Rubber under Floating Trex.
Metal Pipe Red 38" High at Deck and Balcony, no rails Powder Coated. _
19 pair PVC Shutters on Existing House as Plms. .
Butt Glazed Suspended Connector 3" Aluminum Frame: One section 13 L.F.,
One section 11 L.F. Allowance ............................................................ $ 4,650.00
Exterior Stone Work Allowance - Stone will be L and S Syntheti ; Stone, Style bike Barn,
Color more Brown and Earth Stone. Includes inside Fireplace Facing ................. $ 39,596.00
Dryvit Allowance - Including Material, Labor, accessories, and caulking ....................... $ 76,162.00
Stamp Concrete Front Porch-New House Stamp Concrete Walt 1iomNewHouse From
Porch to Existing Sidewalk.
New Metal Biko Door -62" wide, 88" Long.
Septic Sand Mound $7,500.00 by Contractor, Design and Permit By Owner.
No Landscaping.
No Seeding.
Find Existing Well. No Well or Pump work included in Contract,
No Driveway Cost in Contract: Contractor NOT responsible for repairs or resmfecing
existing driveway. _
TN FRT1R
Stair Foyer: Poplar Skirts Handrail Birch #6010
Poplar Risers Newell Post #4011
Maple Treads Prime Balusters 45015
11-lateriel Cost Allowance ................................................................... $ 12,384.00
All other Stars including New Stairs in Existing House will be Yellow Pico Stairs,
Birch Rails with Handrails #6010 and Newel Post #4011 and Primed Balusters #5015.
Horse Head at Staircase by Owner.
Muni
,.
t t I
Kitchen Cabinets and Appliances Allowance - Includes Cabinets in New House and
Existing House; and All Tops, All Build=, Vanities and Vanity tops, Hood Vents,
refinishing in Existing Kitchen, and all appliances, ducts, and vents. .................... S50,000.00
ett Sauna Purchased by Owner, Installed by Contractor. 1
No Stairs in Garage from Floor to Attic.
+
. Change Master Bedroom Ceiling as per Changes on Print Attached.
?.,
t No Framing in Great Room for Entertainment Area
Master Bath Shower will be hike Alternate - No Door.
. Allowance for Pre-Fabricated Wood Burning Fireplace Unit in Master Bedroom
Majestic Model # SHR42 with Two (2) 6" Legs, One (1) 8" Header,
and One (1) 20" Deep x 66" Long Hearth .............::............................... S 2,100.00
36" Masonry Fire Box in Great Room
Synthetic Stone Face for Great Room Fireplace by L and S Stone.
All hocrior Doors will be 13/8" Flush Solid Hardboard Pre-Pruned Painted.
Door to Master Bedroom- Solid Hardboard Pte-Primed, 3'0" Pocket Door.
_ 12' Folding Glass Wall consisting of Four (4) 3'0" Full view doors with wood stiles
hinged together and sliding on an overhead track,
All Exterior Doors by Allowance including Hardware ............. ......... .............. ...._. $ 4,600.00
Overhead Doors and Openers by Central State Distributors .................................... $ 3,050.00
Plumbing Allowance - wldch includes Wall Supply Pipes to be Type "L" Copp,
"
"
r S
%
Copper Main Line and Branch to Baths Y2
Copper P.V.C. Drain fines
to meet codes, Two (2) Bradford White 50 Gallou seWatet•Heatcm ......... S 15,090.00
Plumbing Fixtures Allowance - Includes Tub/Shower, Faucets, Drains, Toilets and 756-1/-/,(.`_
- - - Seats, Tub and Shower Doors, Sinks and Faucets, Whirlpools and Faucets
:
..
_:., with Trim Kits and includes all plumbing fixtures ........................................ S 6,900.00
Heating Allowance - Includes /
1" Floor System
One Trine gas-Bred furnace, model TUC120, with an output capacity of
120,000 BTU's per hour to be installed in the basement.
One Tram condensing unit, model TTB060, with a cooling capacity of
60,000 BTU's per hour and a cooling coil, model TXA060 to be installed
in the plenum of your furnace.
Two Honeywell thermostats, model T-8400 will be installed to give you
-
'
finger -tip control of the system.
One Trion media air filter and sleeve will be installed in the return plenum
of your fitrnace.
One April Air humidifier, model 760 will be installed.
' Included is all necessary EWC zoning equipment to zone the glassed
-' - - porch separate from the first floor.
2id Floor System
:. One Trane gas-fired furnace, model TUC060, with an output capacity of
60,000 BTU's per hour to be installed in loll.
One Trane condensing unit, model TTB036, with a cooling capacity of
36,000 BTU's per hour, and a cooling coil, model TXC042 to be installed
in the plenum of your furnace.
One Honeywell thermostat, model T-8400 will be installed to give you
finger-tip control of the system.
One Trion media air filter and sleeve will be installed in the return plenum
of your fintnace.
It would be advisable for you to have all the exposed duct work In
-- your loft wrapped with 6" insulation. This area may be within
several degrees of the outside temperature, which eaa cause moisture
to form on the ducts. As a result, this moisture then may run out or
- run off the exposed ducts. We cannot assume any responsibility for
any problems caused by this moisture ............................................. $ 23,846.00
`. _ Gas Propane Tank Allowance ..... ........................................................... S 2,000.00
Electric -320 Amp Service, 350 Locations at $25.00 Each, 105 Fixture Hangings,
7 G.F.Ls, Inspections.
Light Fixtures Allowance - which includes Fixtures, Recessed Lighting, Fans, Chimes,
-:° Exterior Lights, Fan/Light Combos, and Bulbs ....................................... $ 10,000.00
r #
7
Total Painting Allowance for New and Existing House - includes wall paper stripping,
Woodwork paint stripping, and exterior painting ..... ............................... $ 32,004.04)
,. PTMRTnR TRTivf --noftlGrT1
Casing:'/," x 3 '/." Sanitary casing paint grade.
Base: ''/," x 5 %n" Sanitary Base paint grade.
Closet Allowance ......................................................................... S 3,500.0o
Curved Maple Bench in Great Room Allowance ..................................... S 1,500.00
Window Seat in Bedroom #A203 Allowance ........................................ S 650.00
Bath Accessories Allowance -Mirrors ......................................................... $ 1,500.00
Floor Covering Allowance - Including All Ceramic Tile in all areas, Carpet, Vinyl,
Hardwood & Finishing, Marble, Underlayment and Installation
and Sanding
,
of Existing floors ......................................................................... $ 40,000.00
Security - Sound - Specialty Wiring Allowance .............................................. S 5,000.00
Interior Door Locks - Plymouth Schlage, F-Series, #605 Finish.
House Cleaning before Moving Allowancece .................................................... S 2,000.00
r
Labor and Material for Renovatons of Items Listed Below are:
Cut Out Brick on Existing House to Connector to New House.
New Office Wall and #122 Double Door installed.
Two (2) Doors Library to be removed and walled in.
Remove existing stairs, install new stairs - rails (in Stair Allowance). Try to use
existing Stair Rail parts.
New Stairs in Existing House may not be in Compliance with New Building Codes. .
Remove - wall - door Living Room to Hall, install Two (2) 4" Permacast Columns.
Three (3) window seats in Library (Delete).
Remove Gas stove and restore firebox and mantle. Not responsible for Relining
or Rebuilding New Chimney. You may have to Reline inside of Chimney to
make it safe.
Cut opening in masonry wall Rear Exercise Room up to 4' Wide if Possible.
Build 2vd floor subfloor to receive New Stairs.
These items listed have an Allowance of ........................................... $45,000.00
Refinish Bath and Mud Room Floors are part of Flooring Allowance.
New Ceramic Floor in Kitchen are part of Flooring Allowance.
All Flooring and Finishing are part of Flooring Allowance.
New Kitchen Cabinets and Counter Tops are part of Kitchen Cabinets and
Appliances Allowance.
Book Shelves in Library are part of Kitchen Cabinets and Appliances Allowance.
Refinish and Paint Existing Cabinets also New Hardware are part of Kitchen
Cabinets and Appliances Allowance.
All New Wallpaper will be by Owner.
To Remove Door Hardware and Replace 1' and a floor door locks with New
Modem door locks. Will require additional Labor Cost to
Furnish, Install, Repair and Patch Existing holes in Doors and Trim Work.
Remove all existing wallpaper and refinish wall on 1' and a floors to
accept new painting (in Painting Allowance).
Strip and refinish existing trim and windows (in Painting Allowance).
This Contract does not include installing Drywall or coating over any Existing walls
and Ceilings.
If Well is in location ofNew Building - No New Well in Contract.
PP&L Main Power Lines from Street to House may iur+o to be relocated to build
New House. Contractor will coordinate work, but Costs will be by Owner.
Existing Windows (It may be Cost Effective to Replace Windows rather than repair
and repaint existing windows.
All Utility Expenses will be paid in their entirety by Owner.
ALLOWANCES:
i
L7
Throughout these specifications, the owner will be confronted by the occasional utilization of allowances.
Allowances are utilized where practical, to allow the owner as much latitude as possible to design and brush
their home to suit their individual tastes. The dollar figure represents an approximated price for which the
contractor believes quality items may be purchased and installed, including sales tax
It is understood that the owner alone is responsible for staying within his allocation for each item and that if he
exceeds the allowance, the additional cost will be paid to the contractor at the construction payment scheduled
immediately following completion of the mentioned work
OWNER POSSESSION AND SETTLEMENT:
It shall be understood that before the owner takes possession of the house, all outstanding invoices, change
orders and extra's shall be paid in fill and settlement made with Contractor. Contractor reserves right to
substitute material as to like quality.
Owner
Co or
EXHIBIT "B"
HARRY L. SMITH & SONS, INC.,
Claimant
V.
ROBERT V. GOTHIER, JR., and
BONNY L. GOTHIER,
Respondents
BEFORE ARBITRATORS:
Charles E. Friedman, Esquire
John R. Zonarich, Esquire
Richard L. Placey, Esquire
ARBITRATORS' AWARD
THIS 31" day of January, 2006, the arbitrators award to Harry L. Smith & Sons, Inc.,
Claimant, and against Respondents, Robert V. Gothier, Jr. and Bonny L. Gothier, the sum of One
Hundred Twenty-Eight Three Seventeen ($128,317.00) Dollars, with interest payable on the
award at the rate of I% per month commencing February 15, 2006. No award is made to either
party for attorneys' fees or costs.
Charles E. Fr Adman, Esquire
CERTIFICATE OF SERVICE
I hereby certify that I have caused a copy of the foregoing document filed in the
above-captioned matter to be served upon Defendant/Petitioner's counsel, by first-class U.S.
Mail, addressed as follows:
Stephen C. Nudel, Es
219 P W?Street
Ha scfi burn. PA 1710
L /aq
Da
Roger R. Lagu Jr., Esquire
Supreme Court I. . No. 75900
RE Lt,i,,E0 C7-?(cA
OFFICE OF
PROTI.,1.:, ]ARY
2006 APR 21 PM 2- 31
HARRY L. SMITH & SONS, INC. : IN THE COURT OF COMMON PLEAS
Plaintiff L3A P i i, r ° "ji-: bk(JPHINCOUNTY
PENNA' , PENNSYLVANIA
VS.
ROBERT V. GOTHIER, JR., and BONNY L.
GOTHIER,
Defendants
NO. 1230 CV 2006 MP
CIVIL ACTION - LAW
MEMORANDUM OPINION
Presently before this Court is Plaintiff Harry L. Smith & Sons, Inc.'s (hereinafter
plaintiff) Petition to Confirm Arbitration Award and Enter Judgment.
Procedurally, plaintiff filed a petition to confirm arbitration award and enter judgment on
March 21, 2006. Defendant Robert V. Gothier, Jr. and Bonny L. Gothier (hereinafter
defendants) filed an answer and response to plaintiffs petition on April 6, 2006.
The facts reveal that on May 30, 2002, plaintiff agreed, for payment of $1,025,000.00, to
build a new home for defendants and to remodel another residence. After a dispute arose,
-plaintiff demanded binding arbitration, pursuant to Article 13 of the Construction Agreement.
Plaintiff informs that a hearing was held on December 6 and 7, 2005 before a panel of arbitrators
in Harrisburg. On January 31, 2006, the panel ruled in favor of plaintiff and awarded the sum of
$128,317.00, plus one (1) percent interest commencing on February 15, 2006. Pursuant to
Article 13 § 13.6,1 plaintiff notes that the award is final, enforceable by either party, and that
judgment maybe entered by any court having jurisdiction. Plaintiff seeks to have the award
' Article 13 § 13.6 provides: "This agreement to arbitrate shall be specifically enforceable under the prevailing
arbitration law. Any award rendered by arbitrators shall be final and enforceable by any party to the arbitration, and
judgment may be entered upon it in accordance with the applicable law and any court having jurisdiction thereon."
reduced to judgment. Referencing 41 Pa.C.S.A.§ 7342(b),2 plaintiff asks this Court to enter
judgment, since the arbitration hearing was conducted in Dauphin County and since more than
thirty (30) days have elapsed since the award was entered.
Defendants ask this Court to deny plaintiff's petition to confirm the arbitration award
because plaintiffs first application concerning the arbitration was made with the Court of
Common Pleas of Cumberland County, wherein the Honorable George E. Hoffer ordered
arbitration. Defendants conclude, then, that venue is proper only in Cumberland County,
pursuant to 42 Pa.C.S.A. § 7319(3).3 In addition, defendants inform that a motion to modify or
vacate the arbitration award has been filed in Cumberland County. As such, defendants reason
that the Court may not confirm the award while the motion is pending. 42 Pa.C.S.A. § 7313 a In
sum, defendants conclude that venue is improper in Dauphin County because this Court lacks
jurisdiction to entertain plaintiff's petition; and the petition is not ripe until the motion to vacate
the award is decided by the Court of Common Pleas in Cumberland County.
This Court references 42 Pa.C.S.A. § 7319 for guidance in determining whether we, in
fact, may properly entertain plaintiffs petition to confirm the arbitration award:
'42 Pa.C.S.A. § 7342(b) provides: "Confirmation and judgment. On application of a party made more than 30 days
after an award is made by an arbitrator under section 7341 (relating to common law arbitration) the court shall enter
an order confirming the award and shall enter a judgment or decree in conformity with the order. Section
7302(dx2) (relating to special application) shall not be applicable to proceedings under this subchapter."
s 42 Pa.C.S.A. § 7319 provides: "Venue of court proceedings. Except as otherwise prescribed by general rules: (1)
An initial application to a court under this subchapter shall be made to the court of the county in which the
agreement prescribes that the arbitration hearing shall be held or, if the hearing has been held, in the county in which
the hearing was held. (2) If an application to a court cannot be made under paragraph (1) the application shall be
made to the court in the county where the adverse party resides or has a place of business or, if he has no residence
or place of business in this Commonwealth, to the court of any county. (3) All subsequent applications to a court
shall be made to the court hearing the initial application unless that court otherwise directs."
42 Pa.C.S.A. § 7313 provides: "On application of a party, the court shall confirm an award, unless within the time
limits imposed by this subchapter, grounds are urged for vacating or modifying or correcting the award, in which
Venue of court proceedings. Except as otherwise prescribed by general rules: (1) An
initial application to a court under this subchapter shall be made to the court of the county
in which the agreement prescribes that the arbitration hearing shall be held or, if the
hearing has been held, in the county in which the hearing was held. (2) If an application
to a court cannot be made under paragraph (1) the application shall be made to the court
in the county where the adverse party resides or has a place of business or, if he has no
residence or place of business in this Commonwealth, to the court of any county. (3) All
subsequent applications to a court shall be made to the court hearing the initial
application unless that court otherwise directs.
Subsection (1) of 42 Pa.C.S.A. § 7319 mandates that initial applications to the court shall
be made in the county prescribed by the agreement. However if the hearing previously was held,
subsection (1) provides that applications to the Court shall be made in the county wherein the
hearing occurred. A review of Article 13 of the Construction Agreement fails to prescribe the
county wherein arbitration of a claim or dispute must occur. However, defendants inform that
plaintiff filed an initial application with the Cumberland County Court of Common Pleas to
compel arbitration, which was ruled upon by the Honorable George E. Hoffer. Although
plaintiff suggests that venue is proper in Dauphin County, pursuant to 42 Pa.C.S.A. § 7319(1),
because the arbitration hearing was conducted in Harrisburg, Dauphin County, defendants also
inform that they previously filed a motion to modify or vacate the arbitration award with the
Cumberland County Court. Premised on these facts, this Court is unable to determine under 42
Pa.C.S.A. § 7319(1) whether we may properly entertain plaintiffs petition to confirm the
arbitration award. Accordingly, we look to subsection (2) of the statute.
42 Pa.C.S.A. § 7319(2) dictates that, if a determination of venue can not be made under
the terms of subsection (1), an application shall be made in the county where the adverse party
resides or has a place of business. Article 14 of the Construction Agreement specifies that
case the court shall proceed as provided in section 7314 (relating to vacating award by court) or section 7315
service of notice on defendants shall be made at 1000 North Front Street, Suite 500,
Wormleysburg, Cumberland County, PA. Premised on subsection (2), we hold that venue is
proper in Cumberland County. With respect to plaintiffs petition to confirm arbitration award,
however, we look to subsection (3).
42 Pa.C.S.A. § 7319(3) provides that all subsequent applications to a court shall be made
to the court hearing the initial application. This Court restates that, pursuant to defendants'
answer and response to plaintiffs petition, plaintiff filed a motion to compel arbitration with the
Cumberland County Court. In addition, defendants' Motion to Modify or Vacate the Arbitration
Award is pending in Cumberland County. Premised on these facts and the mandate of 42
Pa.C.S.A. § 7319, this Court rules that plaintiff should have filed the Petition to Confirm
Arbitration Award and Enter Judgment with Cumberland County and that the petition is not
properly before this Court.
Accordingly, we enter the following:
(relating to modification or correction of award by court)."
4
??i;L1VED
OFFICE OF
PRi)7LIC, J,0T;,RY
2006 APR 21 PM 2, 31
HARRY L. SMITH & SONS, INC., ?I TE COURT OF COMMON PLEAS
Plaintiff D?1i}r PENN A PHIN COUNTY, PENNSYLVANIA
Vs. : NO. 1230 CV 2006 MP
ROBERT V. GOTHIER, JR., and BONNY L.
GOTHIER,
Defendants CIVIL ACTION -LAW
ORDER
AND NOW, this jj?!day of April, 2006, upon consideration of Plaintiff Harry L.
Smith & Sons, Inc.'s Petition to Confirm Arbitration Award and Enter Judgment; Defendants
Robert V. Gothier, Jr. and Bonny L. Gothier's Answer and Response to Plaintiff's Petition to
Confirm Arbitration Award, and upon consideration of the applicable statutory law, IT IS
HEREBY ORDERED that plaintiffs petition is DENIED.
The Prothonotary of Dauphin County IS HEREBY ORDERED to transfer this matter to
the Cumberland County Court of Common Pleas.
BY THE COURT:
++% ha- Y ^Ai e; , `dt4f 33iF .eve nGJ is a
dui:? ? r??ot ?
A
Che , Judge
Proi?ata,y
Distribution on the following page:
Roger R. Laguna, Esquire
1119 North Front Street
Harrisburg, PA 17102
Stephen C. Nudel, Esquire
219 Pine Street
Harrisburg, PA 17101
Deb Freeman, Esquire
Deputy Court Administrator
Prothonotary of Dauphin County
Judge Cherry
3?aa o?
HARRY L. SMITH & SONS, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
VS.
ROBERT V. GOTHIER, JR., and BONNY L.
GOTHEIR,
Defendants
NO. 1230 CV 2006 MP
CIVIL ACTION - LAW
RULE TO SHOW CAUSE
?Y
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AND NOW, this _UAL day of March, 2006, upon consideration of Petitioner/Plaintiff
Harry L. Smith & Sons, Inc.'s Petition to Confirm Arbitration Award and Enter Judgment, a rule
is issued upon Respondents/Defendants Robert V. Gothier, Jr., and Bonny L. Gothier to show
cause, if any there be, why petitioner/plaintiff s Petition to Confirm Arbitration Award and Enter
Judgment should not be granted.
Rule returnable within _ days of receipt of this Order.
Distribution:
Roger R. Laguna, Esquire
1119 North Front Street
Harrisburg, PA 17102
Stephen C. Nudel, Esquire
219 Pine Street
Harrisburg, PA 17101
BY THE COURT:
?-o
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John herry ge
10 U
Deb Freeman, Esquire, Deputy Court Administrator
Judge Cherry
IMAGED
HARRY L. SMITH & SONS, INC
Plaintiff,
V.
ROBERT V. GOTHIER, JR. and
BONNY L. GOTHIER,
Defendants
IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
NO. 1230 CV 2006 MP
ANSWER AND RESPONSE TO PLAINTIFF'S PETITION TO:.. ?z
CONFIRM ARBITRATION AWARD cn
.c-
Pursuant to this Court's March 22, 2006, Rule to Show
Cause, Defendants, Robert V. Gothier, Jr. and Bonny L.
Gothier, by and through their counsel, Law Offices of
Stephen C. Nudel, PC, file this Answer and Response to
Plaintiff's Petition to Confirm Arbitration Award, and
respectfully submit that the Plaintiff's Petition should be
denied because:
A. Plaintiff's first application concerning the
subject arbitration was made to the Court of Common Pleas
of Cumberland County and it was the Honorable George E.
Hoffer who entered an Order compelling arbitration. Thus,
under 42 Pa.C.S. §7319(3), venue is only proper in
Cumberland County.
B. Defendants have filed with the Cumberland County
Court of Common Pleas, a Motion to Modify or Vacate the
Arbitration Award. Pursuant to 42 Pa.C.S. §7313, no
confirmation of the award is permitted while the Motion is
pending. This Court lacks jurisdiction to entertain the
Petition, and the Petition is not proper or ripe until the
Motion to Vacate or Modify is decided.
Consequently, this Court should deny the Petition
because of improper venue and lack of jurisdiction, and
because the Petition is not proper or ripe at this time.
Answers to Specific Paragraphs of Petition
1. Admitted.
2. Admitted.
3. Admitted that the parties signed the contract
dated May 30, 2002, but denied insofar as the contract is a
written document that speaks for itself and any
characterization thereof is denied.
4. Admitted in Part and Denied. It is admitted that
Plaintiff made initial application for Arbitration to the
Court of Common Pleas of Cumberland County. No application
prior to the subject Petition was made to this Court and
the Cumberland County Court of Common Pleas has not
directed that applications, such as the Petition, be made
to this Court. It is denied that the claim arose out of a
failure to pay. The claim arose when Plaintiff failed to
perform under the terms of the Agreement. The remaining
averments of this paragraph are denied.
r ?
5. Admitted that a panel of arbitrators was
selected. The remaining averments are denied.
6. Admitted in Part and Denied in Part. It is
admitted that a hearing was held on the dates indicated. It
is denied that the Defendants were permitted to present
their entire position to the panel. It is further stated
that the Dauphin County venue for the arbitration was
chosen for the convenience of the arbitrators and the
parties.
7. Admitted that Exhibit B to the Petition contains
the Award, but as a written document it speaks for itself
and any characterizations thereof are denied.
8. This is a legal conclusion to which no response
is required under the Rules of Civil Procedure. If a
response is required, it is Denied.
9. No response required. If a response is required,
the Arbitration Award may not now be reduced to Judgment
pursuant to 42 Pa.C.S. §7313, as a Petition to Vacate the
Arbitration Award has been filed. Further, the proper
venue for this Petition, when it becomes ripe, is
Cumberland County.
10. The averment is a conclusion of law to which no
response is required. If a response is required, it is
Denied. As a Petition to Vacate has been properly filed,
Y
Judgment may not be entered until the Petition to Vacate is
heard. 42 Pa.C.S. §7313.
11. The averment is a conclusion of law to which no
response is required. If a response is required, it is
Denied. Dauphin County is not the proper Venue under 42
Pa.C.S. §7319(3), and no court yet has jurisdiction over
the Petition because a Motion to Vacate or Modify has been
filed. See 42 Pa.C.S. §7313.
WHEREFORE, Defendants respectfully request that
Plaintiff's Petition to Confirm Arbitration Award be
denied.
DEFENDANTS' RESPONSE
12. Paragraphs 1 through 11 set forth above are
incorporated herein as if set forth at length.
13. On December 17, 2003, Plaintiff filed a Petition
to Compel Arbitration in the Court of Common Pleas of
Cumberland County.
14. On December 19, 2003, the Honorable George E.
Hoffer, President Judge of the Court of Common Pleas of
Cumberland County issued a Rule to Show Cause.
15. On January 20, 2004, the Plaintiff filed a Motion
to Make the Rule Absolute,
16. On January 26, 2004, the Honorable Judge Hoffer
issued an Order directing the Defendants to Arbitrate.
17. The Parties proceeded to Arbitration, with
hearings held before a panel of arbitrators on December 6
and December 7, 2005.
18. The Arbitration Panel issued a decision on
January 31, 2006.
19. On March 2, 2006, Defendant filed a Petition to
Vacate the Arbitration Award. A true and correct copy of
the Defendants' Petition to Vacate is attached hereto as
Exhibit "A"
20. Pursuant to the Uniform Arbitration Act, on
application of a party, the court shall confirm an
arbitration award, unless within the time limits imposed by
the Act, a Petition to Vacate and/or Modify the award is
filed. If such a Petition is filed, the Court shall proceed
with hearing the Petition.
21. The Defendants have filed a Petition to Vacate
within the time set forth by the Uniform Arbitration Act.
Plaintiff's Petition to Confirm should therefore be denied.
This Court lacks jurisdiction to decide the Petition and
the Petition is not proper nor ripe until the Motion to
Modify or Vacate is decided.
22. Given that the initial application concerning
arbitration was made by Plaintiff to the Cumberland County
Court of Common Pleas, venue is not proper in this Court.
WHEREFORE, Defendants request that Plaintiff's
Petition to confirm the Arbitration Award be Denied.
Respectfully Submitted,
STIEPHEN C. NUDEL, PC
Date: Y I? ! y
S e C. Nudel, Esquire
Pa. ID No. 41703
Andrew T. Kravitz, Esquire
Pa. ID No. 80142
219 Pine Street
Harrisburg, PA 17101
Attorney's for Defendants
EXHIBIT "A"
? y
HARRY L. SMITH & SONS, INC. IN THE COURT OF COMMON PL-EAS ,l
Petitioner, CUMBERLAND COUNTY, PENNSYLVANIA.-,
V. NO. 03-6494 -
ROBERT V. GOTHIER, JR. and r
BONNY L. GOTHIER, _
Respondents
PETITION TO VACATE AND/OR MODIFY AN ARBITRATION AWARD
AND NOW comes Respondents, Robert V. Gothier, Jr. and Bonny
L. Gothier, by their counsel, Law Offices Stephen C. Nudel, PC,
and files this Petition to Vacate and/or Modify an Arbitration
Award and avers as follows:
1. Respondents are Robert V. Gothier, Jr. and Bonny L.
Gothier, adult individuals, with an address of 99 Manor Drive,
Dillsburg, Pennsylvania 17019.
2. Petitioner is Harry S. Smith & Sons, Inc., a
Pennsylvania Corporation, with an address of 5943 Devonshire
Heights Road, Harrisburg, Dauphin County, Pennsylvania 17112.
3. On or about May 30, 2002, Petitioner and Respondents
entered into a Construction Agreement ("Contract") under the
terms of which Petitioner agreed to renovate an existing home and
attach the same to a new home to be built by Petitioner
("Improvements").
4. Under the terms of the Contract Petitioner agreed to
complete the Improvements for $1,020,000.00 ("Contract Price").
Any change orders would be added to this amount.
5. After Petitioner began the construction of the
Improvements, Respondents became concerned with Petitioner's
management of the construction and ability to complete the
Improvements.
6. Respondents discovered that Petitioner had failed to
pay subcontractors pursuant to the terms of the Agreement.
7. Respondents further discovered that, as a result of the
failure to pay subcontractors, suppliers and subcontractors were
refusing to complete or begin work on the Improvements.
8. Respondents determined, after discussions with
Petitioner, that Petitioner would not be able to complete the
Improvements pursuant to the terms of the Contract.
9. On May 9, 2003, by letter from counsel for Respondents,
Petitioner was put on notice of default for failing to pay
subcontractors when due, specifically the HVAC, drywall and
masonry contractors. Petitioner was given twenty days to cure
the default and proceed diligently on the project.
10. Pursuant to the terms of the Contract, if Petitioner
breached the terms of the Contract, and the breach remained
uncured after the notice period, Petitioner and Respondents were
to meet and agree as to the balance due to Contractor for work
and materials properly performed. (Article 20, Paragraph 20.2).
11. On or about July 3, 2003, Respondents met with
Petitioner at Respondent's office to discuss the project and the
default.
12. At the conclusion of the July 3, 2003, meeting
Respondents and Petitioner agreed that Petitioner was in default,
that Petitioner would be unable to finish the project in a
2
reasonable time, and, pursuant to the Contract terms, agreed that
Respondents owed no money to Petitioner and that Petitioners owed
nothing to Respondents.
13. Counsel for Respondents sent a letter to Petitioner
dated July 3, 2003, formally terminating the Contract.
14. At the time the Contract was terminated for cause,
Respondents had paid Petitioner $548,655.00 of the original
Contract Price and $43,188.67 for change orders.
15. Pursuant to the terms of the Contract, upon termination
of the Contract by Respondents for Petitioner's default,
Respondents were permitted to take possession of the construction
site and finish the uncompleted work. (Contract, Article 20,
Paragraph 20.2).
16. After the July 3, 2003, meeting, Respondents, relying
upon the agreement reached with the Petitioner at the meeting
held on July 3, 2003, took possession of the construction site
and completed the Improvements.
17. Respondents, without the assistance of a general
contractor, took possession of the job site and proceeded to
engage contractors and obtain supplies and goods to complete the
Improvements.
18. On September 19, 2003, despite the agreement of July 3,
2003, Petitioner sent a letter to Respondents claiming
$169,814.11 in indebtedness at the time of termination and
$6,175.12 for loss of equipment, tools and scaffolding, and
demanded that the matter proceed to arbitration.
3
19. The September 19, 2003, correspondence did not allege a
breach by Respondents and did not provide any notice to cure as
Petitioner was required to provide if a breach was alleged.
(Article 20, Paragraph 20.1 of Contract).
20. Despite Petitioner's claim, Respondents proceeded to
diligently finish the Improvements.
21. Respondents were issued an Occupancy Permit on November
6, 2003.
22. On December 17, 2003, Petitioner filed a Motion to
Compel Arbitration in the above captioned matter. The parties
had agreed to arbitrate after the work was completed,
notwithstanding the agreement
23. On January 26, 2004, the Honorable George Hoffer issued
an Order directing Respondents to Arbitrate pursuant to the terms
of the Contract.
24. The parties established a three person arbitration
panel, with each party choosing an arbitrator, and the two chosen
arbitrators selecting a neutral arbitrator.
25. On or about December 24, 2004, Petitioner submitted
Petitioner's Statement of Claim to the Arbitrators and to
Respondents. A true and correct copy of the Petitioner's
Statement of Claim is attached hereto as Exhibit "A".
26. Petitioner, despite the July 3, 2003, meeting, and
Petitioner's admission that Petitioner had not paid
subcontractors and was unable to complete the Improvements
pursuant to the terms of the Contract, alleged in the Statement
4
of Claim that Petitioner "had satisfied all conditions precedent
and had otherwise performed all obligations" the Petitioner had
under the Contract.
27. Petitioner, despite the July 3, 2003, meeting between
Petitioner and Respondent Robert V. Gothier, Jr., and the
agreement reached at the same, alleged in the Statement of Claim
that Petitioner was owed balances from draw requests that were
billed by Petitioner to Respondents. (Petitioner's Statement of
Claim paragraph 6).
28. Petitioner's Claim was entirely based on the draw
requests and amounts billed by Petitioner to Respondents.
29. Petitioner's Claim does not allege any other basis for
Petitioner's Claim other than the draw requests.
30. Petitioner's Claim does not allege a breach by the
Respondents under Article 20, Paragraph 20.1 of the Contract.
31. On or about January 24, 2005, Respondents filed
Respondent's Answer to Statement of Claim and Counter Claim
("Answer and Claim"). A true and correct copy of Respondent's
Answer and Claim is attached hereto as Exhibit "B"
32. Respondents averred in their Answer and Claim that,
prior to the termination of the Contract, Petitioner defaulted
under the terms of the Contract by failing to pay Subcontractors,
by submitting fraudulent draw requests, and by failing to
complete the construction of the Improvements in a timely manner.
5
33. Respondents averred in their Answer and Claim that as a
result of Petitioner's default, subcontractors of the Petitioner
were refusing to perform work for Petitioner.
34. Respondents averred in their Answer and Claim that
Respondents had been advised by Petitioner's masonry contractor
that Petitioner encouraged the masonry contractor to overbill the
Respondents to recover amounts owed by the Petitioner.
35. Respondents' Answer and Claim, filed in response to
Petitioner's Claim, sought compensation for the time expended by
Respondents in finishing the Improvements and the costs for labor
and materials to complete the Improvements.
36. Respondents, through its responses and averments as set
forth in Respondents' Answer and Claim, asked the Arbitrators to
find that Petitioner breached the Contract.
37. Respondents further asked the Arbitrators to determine
what amounts were owed to the parties under the terms of the
Contract. Respondents averred that Petitioner owed Respondents
for amount paid over and above the Contract Price to complete the
house.
38. A hearing was held before the Arbitrators on December 6
and December 7, 2005.
39. At the hearings, Respondents sought to present
testimony regarding Petitioner's failure to pay subcontractors
and their refusal to complete work.
40. At the hearings, despite Respondent's Answer and Claim
and fully setting forth its position as to Petitioner's default
6
for failure to pay subcontractors, the Arbitrators refused to
hear testimony regarding Petitioner's failure to pay
subcontractors.
41. The Arbitrators refused to allow Respondents to
question the Petitioner's President, Harry S. Smith, as to Mr.
Smith's failure to pay subcontractors and Mr. Smith's admission
to the Respondents that he had failed to pay subcontractors.
42. The Arbitrators refused to allow Respondents to
question the Petitioner's employees as to Petitioner's failure to
pay subcontractors.
43. Respondents also sought to present evidence as to
Petitioner's fraud regarding the submission of draw requests.
44. Respondents alleged in their Answer and Claim that
Petitioner had submitted and received payments for draws for work
not performed and for subcontractors and suppliers not paid.
45. The Arbitrators refused to allow Respondents to present
evidence of Petitioner's fraudulent draw requests.
46. Respondents also sought to solicit testimony from the
Petitioner regarding the meeting of July 3, 2003, at which
meeting Petitioner agreed that no money was due.
47. The Arbitrators limited the Respondents ability to
question the Petitioner regarding the July 3, 2003, meeting, the
agreement reached and Petitioner's admission that no money was
due.
7
48. In contrast, the Arbitrators allowed Petitioner to
change its legal and factual theory as originally set forth in
the Petitioner's Claim.
49. Petitioner's allegations as presented in Petitioner's
Claim are based on the draw schedule as set forth in the
Contract.
50. Petitioner's claim as presented to the Arbitrators was
based on equity arguments, with no reference to the Petitioner's
Claim, the Contract, the July 3, 2003, meeting, or the draw
schedule.
51. Petitioner's Claim as presented to the Arbitrators is
summarized in Petitioner's Exhibit C-1, which was submitted to
the Arbitrators by Petitioner.
52. The change in Petitioner's legal and factual theory is
obvious when the Petitioner's Exhibit C-1 is compared to the
Petitioner's Claim.
53. A review of Petitioner's Claim shows that the
Petitioner's Claim was based on the Contract and the draw
schedule, while the Petitioner's claim as presented to the
Arbitrators was based on equitable arguments.
54. Despite Petitioner's last minute change in Petitioner's
legal and factual theories, the Arbitrators accepted Petitioner's
Exhibit C-1 and allowed Petitioner to present evidence in support
of Petitioner's new theories of law and fact.
55. On January 31, 2006, the Arbitrators issued a decision,
awarding $128,317.00 to the Petitioner.
8
WHEREFORE, Respondents respectfully request that this Court
find that the Arbitrators handling of the proceedings were so
flawed and manifestly unjust as to cause an unjust, inequitable
and/or unconscionable award and further requests that the
Arbitration award be vacated.
IRREGULARITIES ON THE PART OF THE ARBITRATORS CAUSED AN
UNJUST, INEQUITABLE, AND UNCONSCIONABLE AWARD
Arbitrators Refusal To Receive Evidence Of Breach
56. Paragraphs 1 through 55 are incorporated herein as if
set forth at length
57. Pursuant to the Ruling of the Arbitrators, this matter
was arbitrated under Common Law Arbitration.
58. Under Common Law Arbitration, the award of an
arbitrator may be vacated when it is clearly shown that an
irregularity associated with the arbitration process resulted in
an unjust, inequitable, or unconscionable award.
59. Participants in arbitration are entitled to a full
hearing with the opportunity to be heard and present evidence.
60. An irregularity occurred in this matter when the
Arbitrators failed to allow Respondents to present evidence and
testimony as to a material issue.
61. The Arbitrators would not allow Respondents to present
testimony regarding Petitioner's breach for failure to pay
subcontractors and for submitting fraudulent draw requests.
62. Petitioner's breach of the Contract was a material
issue and evidence of the Petitioner's failure to pay
9
subcontractors and submitting fraudulent draw requests was
evidence that addressed this material issue.
63. The Arbitrators refusal to receive evidence offered by
Respondents as to Petitioner's breach of the Contract was clearly
error.
64. The Arbitrators refusal to receive Respondents'
evidence of Petitioner's breach of the Contract has lead to an
unjust and inequitable result.
WHEREFORE, Respondents respectfully requests that this Court
find that the Arbitrators failure to receive Respondents'
evidence of Petitioner's breach has caused an unjust and
inequitable result, and respectfully requests that the
Arbitrators award be vacated.
Arbitrators Acceptance of New Theories of Law and Fact
65. Paragraph 1 through 64 as set forth above are
incorporated herein as if set forth at length.
66. As indicated above, Petitioner, in Petitioner's Claim,
set forth a claim against Respondents based upon draw requests
billed to Respondents that remain unpaid. (Petitioner's Claim
paragraph 6).
67. The Arbitrators permitted Petitioner to completely
change Petitioner's legal and factual theories of its Claim.
68. Prior to the hearing before the Arbitrators, Petitioner
did not seek leave to amend Petitioner's Claim.
10
Y
69. In support of Petitioner's new legal and factual
theories of its Claim Petitioner submitted Petitioner's Exhibit
C-1 at the hearing.
70. The Petitioner's submission of Exhibit C-1 evidences
Petitioner's change in that Exhibit C-1 sets forth a claim based
on amounts actually paid with no reference to the Contract Price,
the draw schedule set forth in the Contract, or draw requests.
71. The Arbitrators' acceptance of Exhibit C-1 and the
Arbitrators' award clearly show that the Arbitrators permitted
the Petitioner's to change the legal and factual theories of
Petitioner's Claim, to the detriment of the Respondents.
72. Respondents were clearly prejudiced in their ability to
formulate their defense to Petitioner's claim as a result of
Petitioner's last minute change in legal and factual theories of
Petitioner's Claim, and the Arbitrators acceptance of the new
legal and factual theories.
WHEREFORE, Respondents respectfully request that this Court
find that the Arbitrators acceptance of Petitioner's new legal
and factual theories in support of Petitioner's Claim was
improper and that said acceptance caused an unjust and
inequitable result, and respectfully requests that the
Arbitrators award be vacated.
Arbitrators Addressed Issues Not Before the Arbitrators
73. Paragraphs 1 through 72 as set forth above are
incorporated herein as if set forth at length.
11
74. Under the terms of the Contract, damages as a result of
breach were to be determined differently depending on the
breaching party.
75. Under the terms of the Contract, if Petitioner was of
the position that Respondents as owners breached after the start
of work, Petitioner was required to provided Respondents with
fifteen days notice with a right to cure any alleged default or
breach. Petitioner could not recover anything from the
Respondents without providing the fifteen days notice with a
right to cure. (Article 20, Paragraph 20.1).
76. Nowhere in the record does the Petitioner allege that
Respondents breached the Contract.
77. Nowhere in the record does Petitioner establish that
Petitioner provided Respondents notice of a breach or the
required notice to cure.
78. It is clear from a review of Petitioner's Claim and
Respondents' Answer and Claim that the only issues properly
before the Arbitrators included (i) Petitioners breach of
Contract and (ii) an amount due to either party under the terms
of the Contract.
79. However, it is clear from the Arbitrators award that
the Arbitrators did in fact consider issues not set forth in the
Petitioners' Claim or the Respondents' Answer and Claim. It is
clear that the Arbitrators considered the issue of Respondents
breach of Contract, even though this issue was not before the
Arbitrators.
12
80. It is clear from the Arbitrators award that the
Arbitrators found that the Respondents breached the Contract.
81. Under the terms of the Contract, if Petitioner breached
and failed to cure after notice, Respondents could terminate the
Contract, finish the work, and if the unpaid balance of the
Contract Price exceeds the expense of finishing the work, such
excess shall be paid to Contractor. If the expense of finishing
the work exceeds the unpaid balance, Contractor shall pay the
balance to the owner.
82. Therefore, under the terms of the Contract, Petitioner
would and could be entitled to payment upon the completion of the
Improvements if it was found that the amount expended by
Respondents to complete the Improvements was less than the unpaid
balance of the Contract Price at the time the Contract was
terminated.
83. As a result of the absence of any alleges of a breach
by Respondents in Petitioner's Claim, it is clear that
Petitioner's claim is asking the Arbitrators to determine any
amounts owed under Article 20, Paragraph 20.2 of the Contract.
84. A review of the record shows that both parties agreed
that the Contract Price was $1,020,000.00 (less change orders).
85. A review of the record further shows that both parties
agreed that Respondents paid Petitioner $548,655.00 (less change
orders).
86. As a result of the undisputed record, the unpaid
balance of the Contract Price is $471,345.00.
13
87. Pursuant to Petitioner's Exhibit C-1, Petitioner agreed
that Respondents paid $399,289.98.00 in costs and expenses within
Contractor's plans and specifications to complete the home.
88. Pursuant to the terms of the Contract and the issues
properly before the Arbitrators, namely Petitioner's breach of
the Contract and the amount owed after the completion of the
Improvements, the most the Arbitrators could have awarded
considering the issues properly before them was $72,055.02, the
difference between the unpaid balance of the Contract and the
amount Petitioner alleges Respondents paid to complete the
Improvements.
89. As the Arbitrators awarded the Petitioner $128,317.00,
it is clear that the Arbitrators determined the Award upon a
finding that Respondents breached the Contract, even though the
issue of Respondents breach was not properly before the
Arbitrators or alleged by the Petitioner in Petitioner's Claim.
90. It is clear that the Arbitrators went beyond the issues
before the Arbitrators.
WHEREFORE, Respondents respectfully request that this Court
find that the Arbitrators' determination of an award upon a
finding of a breach of the Contract by Respondents was improper
and that said consideration caused an unjust and inequitable
result, and respectfully requests that the Arbitrators award be
vacated.
Arbitrators Failure to Address July 3, 2003, Agreement
14
91. Paragraphs 1 through 90 as set forth above are
incorporated herein as if set forth at length.
92. As indicated above, on July 3, 2003, pursuant to the
requirements of the Contract, Respondents and Petitioner met,
after Petitioner had failed to cure Petitioner's default under
the Contract.
93. The unequivocal record and testimony of record
established that the parties attended the July 3, 2003, meeting.
94. As indicated above, at the July 3, 2003, meeting,
Petitioners agreed that Respondents did not owe the Petitioners
anything under the terms of the contract.
95. As indicated above, Respondents, relying on Petitioners
agreement that Respondents did not owe Petitioner anything under
the Contract, completed the Improvements at their own cost and
expense.
96. At no time during the conduct of the hearing before the
Arbitrators did Petitioner deny the agreement. Instead,
Petitioner alleged that the same was not binding because it was
not in writing.
97. Arbitrators failed to address the July 3, 2003,
agreement under the terms of which Petitioner agreed that
Respondents did not owe the Petitioner anything under the
Contract.
98. Arbitrators' failure to consider the July 3, 2003,
agreement is evidenced by the Arbitrators award in favor of
Petitioner.
15
WHEREFORE, Respondents respectfully request that this Court
find that the Arbitrators failure to consider the July 3, 2003,
agreement between the parties was improper and that said failure
caused an unjust and inequitable result, and respectfully
requests that the Arbitrators award be vacated.
Date: -?+O(C'
Respectfully submitted,
i
LAJ -9FTICES4, ST-"HEN C. NUDEL, PC
Akdrew T. Kravitz, Esquire
Attorney ID #80142
Stephen C. Nudel, Esquire
Attorney ID #41703
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorneys for Respondents
16
EXHIBIT "A"
Y
HARRY L. SMITH & SONS, INC. : BEFORE A PANEL OF ARBITRATORS
Claimant
V.
ROBERT V. GOTHIER, JR., and
BONNY L. GOTHIER,
Respondents
CLAIMATNT'S STATEMENT OF CLAIM
AND NOW comes Claimant above-named, by and through its attorneys, John G.
Milakovic, Esquire, Elizabeth S. Beckley, Esquire, and Beckley & Madden, of counsel, and
serves this Statement of Claim, averring as follows:
1. Claimant is Harry L. Smith & Sons, Inc. ("Smith"), a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania, with offices located at 5943
Devonshire Heights Road, Harrisburg, Pennsylvania.
2. Respondents are Robert V. Gothier, Jr., and Bonny L. Gothier (hereinafter referred to
collectively as "Gothier"), adult individuals who are husband and wife and who at all tunes
material hereto resided at 99 Manor Drive, Dillsburg, Pennsylvania.
3. On or about May 30, 2002, Smith and Gothier agreed, in writing, that Smith would
construct a new residence and perform remodeling on the old residence, for the sum of
$1,025,000.00 (although said sum was subject to change at the owner's discretion because, inter
alia, included in it were numerous allowances which could be exceeded at the owner's discretion
and for which the owner would be liable). A true and correct copy of the aforesaid contract is
hereto attached marked as Exhibit "A."
4. Additionally, at numerous times throughout the project, Smith had additional work
performed at Gothier's direction, as a result of which Smith prepared ten (10) separate work
orders for presentation to Gothier. The aforesaid work orders, which reflect the fair and
reasonable value of the additional work (and which would result in a revised contract sum of
$1,074,633.04), and which occasioned a reasonable increase in the contract time of at least 100
days, are hereto attached marked collectively as Exhibit "B" and incorporated herein.
5. Until the point at which Gothier unilaterally terminated the contract and prevented
Smith from further performance, which date was on or about July 3, 2003, Smith had satisfied all
conditions precedent and had otherwise performed all obligations on its part to be performed.
6. Attached hereto as Exhibit "C" and incorporated herein is a true and accurate account
summary of the scheduled draw amounts, the amounts and dates of all payments and credits as
against those scheduled amounts, and the balances remaining as to each such draw amount. As
of the date of the Gothier's wrongful termination of Smith, Smith had billed for Draws 1 through
9 (with the exception of Draw 7) and for substantial completion of the existing house, leaving a
contract balance due and owing of $163,795.00, which sum is approximate and is subject to
further verification by Claimant.
7. Attached hereto as Exhibit "D" and incorporated herein is a true and accurate account
summary of the amount of each work order; the amounts and dates of all payments and credits as
against those work orders, and the balance remaining of $3,710.93 (relating to Work Orders 9
and 10).
8. Accordingly, the approximate total principal amount due and owing, as of the date
Gothier terminated Smith, was $167,495.93, which amount is subject to further verification by
Claimant.
9. Despite numerous demands, Gothier has failed and refused to remit this amount.
2
r
10. Additionally, Gothier has refused to allow Smith to return to the site, subsequent to
Smith's termination, to observe the state of the site and to preserve evidence as to the state in
which Smith left the site by way of photographs or otherwise, and/or to retrieve Smith's
equipment and materials which, upon information and belief, Gothier has taken. A listing of the
materials and equipment which Smith has been prevented from retrieving, along with the true
and reasonable value of same (i.e., $6,175.12), is hereto attached marked as Exhibit "E."
WHEREFORE, Smith respectfully requests that the panel enter an award in Smith's
favor and against Gothier, in the principal amount of $173,671.05, plus such prejudgment
interest, costs, and attorneys' fees as may be awardable, under the terms of the parties' contract,
or otherwise, according to law
Dated: -/Z;' c,j Respectfully submitted,
Of Counsel
Beckley & Madden
212 North Third Street O6- G. Milakovic
P.O. Box 11998
Harrisburg, PA 17108
(717) 233-7691
Eli- abeEh S. Beckley
Attorneys for Claimant
3
?-?BIT ?`
??-
t •
CONSTRUCTION AGREEMENT
THIS CONSTRUCTION AGREEMENT (hereinafter, "Agreement") is made this 3 e day of May,
2002, by and between HARRY L. SMITH & SONS, INC. (hereinafter referred to as "Contractor"), and
Robert V. Gothier, Jr. and Bonny L. Gothier (hereinafter collectively referred to as "Owner").
WHEREAS, Owner wishes to erect at 99 Manor Drive, Dillsburg, PA 17109, Monaghan
Township, York County, an improved single family dwelling home, and has caused Crabtree Rohrbaugh
& Associates, Architects, to prepare drawings and specifications of the Project 1614: Gothier Residence
Plan, dated last revised , (hereinafter, the "Plans and
Specifications"); and
WHEREAS, Contractor has signified his willingness to erect Project 1614: Gothier Residence
Plan in accordance with the drawings and specifications attached to this contract and signed by the
contractor, owner, and architect, and in accordance with the conditions and for the consideration set forth
below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties, intending to be legally bound hereto, agree to the following terms and conditions.
ARTICLE 1
THE CONTRACT WORK
1.1 Contractor agrees to build for Owner an improved dwelling home, described as
Project 1614: Gothier Residence, according to the Contract Documents herein defined and provide
certain limited renovations to an existing home as hereinafter provided. Said improved dwelling home is
to be built on Owner's land situate at 99 Manor Drive, Dillsburg, York County, Pennsylvania.
Contractor shall perform his responsibilities in accord with the Contract Documents, which shall include
this Construction Agreement, the Plans and Specifications, the Cost Breakdown, and any and all other
Addenda issued prior to and all Modifications/Change Orders after execution of this Construction
Agreement, which documents form the Contract Documents and are all fully part of this Construction
Agreement as if attached to this Construction Agreement or repeated herein. In case of conflict or
ambiguity, the Specifications shall control the Plans and Specifications, and the provisions of this
Construction Agreement shall control all other contract documents.
1.2 Unless otherwise provided herein or by Addenda, Contractor shall furnish all
materials as specified herein, perform all the labor, pay for all subcontractors, supply all necessary tools,
equipment and transportation, and provide all necessary supervision and any other responsibilities which
may be necessary for the construction and in accord with the Construction Documents herein defined. It
is specifically understood that Contractor shall not be liable or otherwise responsible for inaccuracies,
errors or omissions with regard to any and all information contained in the Contract Documents supplied
by Owner, Owner's architect, engineer or any other agent for Owner. Likewise, if applicable, Contractor
shall not be responsible for any work performed by subcontractors retained directly by Owner. Owner
understands and acknowledges that this custom home has never been built before and, therefore,
Contractor has the right to make minor modifications or adjustments during the construction process,
which may result in slight variations of dimensions, and which may become necessary to comply with the
general intent of the Contract Documents, without written Change Order, provided such does not change
the Contract sum or the time of performance, and Owner agrees to hold Contractor harmless for any such
change, modification or adjustment. Contractor reserves the right to substitute the material of like
t •
quality. It is understood that before Owner takes possession of the new house to be constructed, all
outstanding invoices, change orders and extras relating thereto shall be paid in full and settlement made
with Contractor. For purposes of clarification and identification, Contractor will additionally be making
certain limited renovations to an existing house, the "Existing House", the cost of which is included as an
allowance in Paragraph 3.3(cc) and said allowances included in the Contract Price. Owner shall likewise
not take possession of the Existing House until all outstanding invoices and change orders and extras
related thereto shall be paid full and settlement made with Contractor with regard to the Existing House.
ARTICLE 2
CONTRACT PRICE
2.1 The agreed basic construction sum, as may be subject to additions and/or deductions by
changes, additions, alterations and allowances, as also described hereinafter, payable to Contractor by
Owner, in strict accord with the following paragraph, is the sum of One Million Twenty-five Thousand
and 00/100 ($1,025,000.00) Dollars (hereinafter, the "Contract Price").
2.2
A. Owner agrees to make progress payments to Contractor on account -of the Contract Price
based upon written applications for progress payments, also known as "draws", submitted to Owner by
Contractor at the following times as determined by Contractor:
7% $ 71,750.00 of the Contract Price for Excavation - Footers - Foundation Walls
7% $ 71,750.00 of the Contract Price for one-half of Framing;
10% $102,500.00 of the Contract Price for one-half of Framing, Windows-Installed;
7% $ 71,750.00 of the Contract Price for Roof Shingled, Exterior Doors excluding.
Overhead Doors;
10% $102,500.00 of the Contract Price for Rough-ins of Electrical, Plumbing and
Heating/Air Conditioning;
10% $102,500.00 of the Contract Price for Insulation and Drywall;
15% $153,750.00 of the Contract Price for Stone and Dryvit;
10% $87,500.00 of the Contract Price for Kitchen Tops, Vanity Tops, Appliances:
13% $133,250.00 of the Contract Price:for Interior Trim;
80/0 $ 82,000.00 of the Contract Price for Painting - Flooring - Lighting Installed;
3% $ 30,750.00 of the Contract Price upon substantial completion.
B. $15,000.00 payable upon substantial completion of Contractor's responsibility with
regard to the Existing House.
2.3 It is understood that Owner is obtaining a construction loan from
in the sum of Before any draws are paid,
the application for progress payment and corresponding work required therefore is to be approved by the
appropriate representatives of said Institution and of Owner. If Owner's lender mandates a different draw
schedule other than above provided, such may be accepted by Contractor, but only if Contractor is
provided same on or prior to the execution of this Agreement and does, in writing, approve same, which
approval shall not be unreasonably withheld or delayed. Owner specifically authorizes said lender, by
execution of this Agreement, to make progress payments directly to Contractor.
2.4 The progress payments shall be due and payable ten (10) days from the date of
mailing/issuance by Contractor of an invoice for a progress payment. Payments not paid within said
period, absent bona fide dispute, shall bear interest from the date said sum is due at the rate of one
percent (1%) per month. Furthermore, if the invoice for any progress payment remains unpaid within ten
(10) days following further written notice of non-payment, Contractor may declare Owner in default and
suspend any further work until a payment is made and appropriate security and guaranty are given to
insure against any future further default. Furthermore, in the event either party is required to institute
suit, in addition to any amounts owing to each other, or other relief granted in law or equity. as permitted
by law, the prevailing party shall receive, and the non-prevailing party shall be required to pay the
prevailing party's reasonable attorneys' fees.
2.5 Final payment, consisting of the unpaid balance of the Contract Price as adjusted by any
modifications or Change Orders, shall be due and payable upon substantial completion. At such time the
home is substantially completed, and the balance of the Contract Price is due and owing, Contractor shall
notify the appropriate municipal authority and obtain an Occupancy Permit, whereupon the parties shall
meet at the dwelling within five (5) days of receipt of the Occupancy Permit, inspect the dwelling home,
and develop a written list of items, if any, that remain to be completed. With regard to such list of items,
a certain amount shall be withheld, not to exceed one hundred and ten percent (110%) of the estimated
cost of completion of such items listed. However, if the item(s) to be completed is an item of work
which is an allowance item, as hereinafter described, the amount to be withheld shall be one hundred
percent (100%) of the estimated cost of completion. Said list maybe supplemented by Owner within one
(1) month following actual physical occupancy of the dwelling home although, upon completion of the
original punch list developed prior to occupancy, Owner shall be obligated to pay Contractor the full
amount withheld without set-off or deduction for any additional punch list items, if any, that may have
been added in the one-month period or for any other reason or cause whatsoever. It is agreed that the
punch list, as may be supplemented during the one-month period of occupancy, shall be, to the best of the
parties' ability, a definitive list and, after this list is satisfactorily completed by Contractor, no further
punch list or items of correction, unless a written agreement is specifically entered into, shall be the
obligation or responsibility of Contractor. Immediately following receipt of the Occupancy Permit and
agreement to the punch list, Owner shall immediately authorize and effectuate payment to Contractor of
the final progress payment, less any amount withheld as agreed pending completion of the punch list.
whereupon Owner shall then be entitled possession of the dwelling home. It is understood and agreed
that Owner accepts the home and its condition except for any items noted on the punch list unless any
such conditions are hidden or are not readily observable. Occupancy of the dwelling home by Owner
prior to payment of the balance of the Contract Price, as amended, shall cause said sum, regardless of the
s e
stage of completion or substantial completion, to be immediately due and.payable,.and Contractor shall
have the right to suspend further work, if he so chooses, subject however to the provisions of Article 6
hereof.
2.6 Making the final payment shall furthermore constitute a release and waiver of all
claims known or which should reasonably have been known by Owner at such time, except faulty or
defective work appearing within one (1) year after substantial completion, or by reason of any implied
warranty as arising by operation of law, but as herein limited.
ARTICLE 3
ALLOWANCE ITEMS
3.1 Certain allowances are contained in the Construction price and are used to permit Owner
as much latitude as possible to design, equip and furnish the home in a manner suitable to his tastes and
desires. The allowance figure represents a price which Contractor believes quality items may be
purchased and installed, and including sales tax, and such allowance amounts as designated and as based
on the Plans and Specifications, are included in the Construction price. Thus, the Owner is responsible
for staying within his allowance for each item but, if the allowance is exceeded, the Owner will pay the
additional cost directly to the subcontractor/supplier whenever possible. If this is not possible to directly
pay the subcontractor or supplier, and the cost exceeds the allowance. Owner.shall promptly notify
Contractor, who may then bill Owner the overage cost plus twenty (20%) percent to cover any overhead
and administration, which must be paid to Contractor prior to installation. Owner shall pay the allowance
overage and the service fee, as above stated, within ten (10) days of invoicing from Contractor, which
must be received prior to ordering, if applicable, or Contractor's installation of any allowance items for
such item/category, or may be contained in full in the next regularly scheduled progress payment, at
Contractor's option. In the event that allowance for one item identified is not fully utilized, that amount
may be credited to another allowance item hereinbefore identified. Furthermore, in the event the total
amount of the allowances identified are not utilized, such shall result in a credit to Owner in the total
construction price.
3.2 In the course of Owner's selection and purchasing of fixtures, accessories and items of
allowance, as identified, the respective suppliers and materialmen will send to Contractor the various
invoices for purchase of such fixtures, accessories and items to be charged to Contractor's account. To
the best of Contractor's ability, it will promptly transmit to Owner copies of such invoices and if no
response is received within seven (7) days of mailing, the Contractor shall assume such invoices to be
correct. In the event such are not correct, or items are subsequently deleted, it shall be Owner's
obligation to so timely notify Contractor. In addition, it shall be the Owner's obligation to so timely
notify the respective suppliers and materalmen to make the appropriate adjustment to the Contractor's
account for all such items subsequently deleted. Furthermore, if any items of allowance are billed to
Contractor from the suppliers and materialmen following final payment on the home, and the total
allowances have been previously exceeded, Owner shall remit to the Contractor payment for said
additional allowance cost(s) within ten (10) days of billing by Contractor. All such payments for sum(s)
in excess of the stated allowance shall be due and owing without setoff or regard to final payment or any
outstanding punch list items that remain to be completed by Contractor.
a 0
33 The Contract Price does include, therefore, the following allowances
which, unless otherwise indicated, include installation and sales tax, as follows:
(a) $ 7.500.00 - excavation, backfill, trenching and grading;*
(b) $ 4.600.00 - exterior doors and hardware;
(c) $ 2.100.00 - fireplace - pre-fab wood burning Master Bedroom
(d) $ 6,900.00 - plumbing fixtures - whirlpool tub;
(e) - electrical wiring;
(f) $10,000.00 decorative electrical fixtures;
(g) $50,000:00 - cabinetry, vanities, countertops, other built-ins;
(h) In Kit Allowan ce - appliances;
W $45.020.00 - windows - Lincoln;
0) $ 3,050.00 - overhead doors and openers;
(k) $23.846.00 --heating and air conditioning for new home (Existing House
heating and air conditioning to be paid by Owner and such is not
in the Contract Price/Existing House allowance);
(1) $ 2.000.00 - underground propane gas tank;
(m) $32,000.00 - painting (new and Existing House total cost)**;
(n) $ 1.500.00 - curved maple bench in great room;
(o) $ 650.00 - window seat in bedroom #A203;
(p) $40.000.00 - flooring and underlayment;
(q) $ 1,500.00 - mirrors; bath accessories; shower doors;
(r) $ •3.500,00 closet rods and shelves;
(s) By Owner - driveway;
(t) By Owner - raking and seeding;
(u) By Owner -landscaping;
(v) $ 7,500.00 - septic system;
(w) By Owner - well and pump;
(x) N/A - central vac;
(y) $ 5,000.00 - security system - sound - specialty wiring;.
(Z) - structured wiring;
(aa) - other; all interior stand and rails;
(bb) $ 2,000.00 - other; housecleaning before moving; and
(cc) $15.000.00 - other; Existing House renovations as per Plans and Specifications,
which shall include P.V.C. Shutters to replace existing shutters on Existing House by
Contractor. New Aluminum soffits and fascia installed on Existing House included in
Contract. Install in Existing Kitchen 12" x 12" Vinyl Stick Down Tile provided by
Owner, installed by Contractor.
It is specifically noted that these allowances, and several additional allowances, are set forth in
the Specifications. All such allowances set forth in the Specifications not contained herein, however,
shall be controlled by this Article 3 of the Construction Agreement.
Throughout the development of the specifications and construction of the home, Owner will be
confronted by the utilization of allowances. Contractor has utilized allowances, where practical, to allow
Owner as much latitude as possible to design and construct their home to suit the Owner's individual
tastes and requirements. The dollar figure allocated for each particular item or segment of work
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3.3 The Contract Price does include, therefore, the following allowances
which, unless otherwise indicated, include installation and sales tax, as follows:
(a) $ 7,500.00 - excavation, backfill, trenching and grading;'
(b) $ 4,600.00 - exterior doors and hardware;
(c) $ 2,100.00 - fireplace - pre-fab wood burning Master Bedroom
(d) $ 6.900.00 - plumbing fixtures - whirlpool tub;
(e) - electrical wiring;
(f) $10.000.00 -decorative electrical fixtures;
(g) $50,000.00 - cabinetry, vanities, countertops, other built-ins;
(h) In Kit Allowance - appliances;
(i) $45.020.00 - windows - Lincoln;
G) $ 3.050.00 overhead doors and openers;
(k) $23.846.00 --heating and air conditioning for new home (Existing House
heating and air conditioning to be paid by Owner and such is not
in the Contract Price/Existing House allowance);
(1) $.2.000.00 - underground propane gas tank;
(m) $32,000.00 - painting (new and Existing House total cost)";
(n) $ 1,500.00 - curved maple bench in great room;
(o) $ 650.00 - window seat in bedroom #A203;
(p) $40.000.00 - flooring and underlayment;
(q) $ 1.500..00 - mirrors; bath accessories; shower doors;
(r) $ '1500.00 closet rods and shelves;
(s) By Owner - driveway;
(t) By Owner - raking and seeding;
(u) By Owner - landscaping;
(v) $ 7.500.00 - septic system;
(w) By Owner well and pump;
(x) N/A central vac;
(Y) $ 5.000.00 security system - sound - specialty wiring;
(z) structured wiring;
(aa) other; all interior stand and rails;
(bb) $ 2,000.00 other; housecleaning before moving; and
(cc) S15,000.00 other; Existing House renovations as per Plans and Specifications,
which shall include P.V.C. Shutters to replace existing shutters on Existing House by
Contractor. New A luminum soffits and fascia installed on Existing House included. in
Contract. Install in Existing Kitchen 12" x 12" Vinyl Stick Down Tile provided by
Owner, installed by Contractor.
It is specifically noted that these allowances, and several additional allowances, are set forth in
the Specifications. All such allowances set forth in the, Specifications not contained herein, however,
shall be controlled by this Article 3 of the Construction Agreement.
Throughout the development of the specifications and construction of the home, Owner will be
confronted by the utilization of allowances. Contractor has utilized allowances, where practical, to allow
Owner as much latitude as possible to design and construct their home to suit the Owner's individual
tastes and requirements. The dollar figure allocated for each particular item or segment of work
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generally represents an approximated price for which the contractor believes quality items may be
purchased and installed, including sales tax. However, with regard to the proposed dwelling. house,
owner has indicated to Contractor that there are certain items for which it is understood and realized by
Owner the allowance number may be exceeded, which items include plumbing, kitchen, painting, floor
covering, and lighting fixtures. Indeed, Owner has advised Contractor and recognizes that these items, to
the extent in excess of the allowances, will result in an excess of the Contract Price with a variable,
depending upon owner's final choices and selections, based upon Owner's current comments of between
$75,000.00 to $100,000.00.
It is understood that Owner alone is responsible for staying within his allocation for each item
and that if he exceeds the allowance, the additional cost will be paid to Contractor at the construction
progress payment schedule immediately following agreement as to a particular allowance item as more
particularly set forth in the Construction Agreement.
(*Contractor will excavate and backfill for the area of construction only. Any additional costs
for this work beyond the excavation allowance, including, but not limited to, removal of excess fill,
hauling in of additional fill, additional grading or cutting, which may be required, at Contractor's option,
shall be the responsibility of Owner. Contractor will not be responsible for the settlement of any backfill
after grading. If backfilled or excavated areas around the foundation of the dwelling home settle during
the first year, Contractor will fill the areas one time. Any earthwork outside the area of construction,
including the removal of trees, is not included in the excavation allowance and is a separate cost item at
additional cost to Owner.)
ARTICLE 4
TIME OF COMMENCEMENT
4.1 The approximate date for commencement of the work is as soon as possible after signing
contracts, but not before the filing of a Stipulation of Liens executed between the parties. The project is
to be substantially completed in twelve (12) months from the date Contractor commences construction,
subject to permissible delays. Time shall be of the essence. Such delays include fire, inclement weather,
strikes, material shortages, material delays not as a result of any inactions or actions of Contractor,
subsoil or surface conditions other than ordinary high, dry earth free of excessive rock, failure of Owner
to make timely selections, or any other causes beyond the reasonable control of the Contractor.
Contractor shall not be responsible for damages or penalty for permissible delays whatsoever. The
dwelling home shall be considered substantially completed when it has been fully constructed in
substantial conformance with the Drawings and Specifications and the appropriate municipal authorities
have issued an occupancy permit.
4.2 Information, subcontracts or the famishing of materials or services under Owner's
control, including, but not limited to, item selection, shall be furnished by the Owner in a timely manner
not to disrupt or delay the orderly and timely construction of the dwelling. A late selection may delay the
orderly progress of the work and the completion/move-in date. Not only shall Contractor not be liable
for such delay, but the Contractor shall be equitably compensated for any overhead costs occasioned by
such delay. In the event the Owner does not make a selection resulting in a substantial delay in the
construction schedule, upon reasonable written notice to Owner, Contractor may suspend all actions on
the construction and Owner shall, within ten (10) days of invoice, pay to Contractor for all additional
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overhead and damages caused by said delay, if any. If Owner's failure to so reimburse Contractor
exceeds thirty (30) days, Contractor may declare a default hereunder without further notice.
ARTICLE 5
SUBSTANTIAL COMPLETION
The date of substantial completion of the contract work is the date when the construction
is sufficiently completed in accordance with the Contract Documents so the Owner can legally occupy
the construction work as evidenced by a Certificate of Occupancy.
ARTICLE b
It is agreed that until Contractor is fully paid all sums due by Owner, Contractor shall retain
exclusive possession of the dwelling during construction so long as Contractor fulfills its obligations
hereunder, subject, of course, to inspection by Owner and their agents at reasonable times. In the event
Owner is in monetary default, not only is Owner not entitled to possession but Contractor has also the
right and is fully justified in refusing to perform any further services hereunder until mutually agreed
arrangements are made with regard to payment of Contractor and all balances due for the construction
price. It is understood that during construction of the new house, Owner plans to live in the Existing
House, and no work will be commenced on the Existing House until Owner vacates same, at which time
prior to Owner's movement into the new house, the total Contract Price plus any additions and/or
deductions, changes, alterations shall be fully paid to Contractor.
ARTICLE 7
INFORMATION AND SERVICES REQUIRED OF THE OWNER
The Owner does represent and warrant, as follows:
7.1 Owner has read and understands the terms, conditions, rights and obligations set forth in
this Construction Agreement.
7.2 Upon reasonable request of Contractor, timely furnish to Contractor reasonable
evidence that Owner has made sufficient financial arrangements to fulfill Owner's obligations under this
Construction Agreement. If so requested by Contractor, Contractor's obligation to commence work is
dependent upon Owner providing such satisfactory information to Contractor in a timely manner which
shall not exceed five (5) business days from the date of receipt of request.
7.3 By signing this Construction Agreement, Owner represents and warrants that the tract of
land upon which the improved dwelling home is to be built conforms to all zoning, planning and other
building requirements; that the tract of land is suitable for the construction required and provided under
the terms of this Construction Agreement; that he is the owner of record of the within described parcel;
that title is good and marketable and insurable by any reputable title company; that a perpetual right-of-
way exists to the parcel; and, that the parcel is free and clear of any encumbrances, liens, and easements,
other than construction financing. Furthermore, Owner represents and warrants to Contractor that, to the
best of Owner's knowledge, there are no actions, cause of actions or claims which might at a later date
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impair title to the aforementioned tract of land. Finally, Owner represents and warrants that he shall, at
his own expense, promptly satisfy any conditions (as which may arise at any time during construction)
which would cause the title to be unacceptable to any recognized reputable title insurance company.
7.4 Owner represents that he has no knowledge or information of any hazardous substances
of any type or kind as defined by appropriate State and Federal statutes, that exists and/or has been stored
or disposed upon the subject tract.
7.5 Owner shall timely furnish, prior to commencement of construction, all surveys
describing the physical characteristics, legal limitations, if any, utility locations on the tract, and a legal
description of the tract.
7.5 Owner shall locate for Contractor upon the tract where and how the improved dwelling
home shall be situated, giving appropriate elevations, benchmarks, or other data necessary for this
purpose. If Owner fails to so timely locate the improved dwelling home and provide such information
prior to the time Contractor commences work, Contractor may delay commencement of work or situate
the dwelling in such a position as he deems appropriate and advisable, in which event Contractor shall be
in no way legally liable or responsible for improper location or elevation and Contractor, in such event,
would provide Owner no less than five (5) business days written notice of Owner's failure to fulfill his
obligations under this sub-paragraph prior to Contractor's location of the home on the tract. .
7.7 Owner has, at his expense, prepared or caused to be prepared for construction of the
improved dwelling home the Plans and Specifications, and Owner warrants that the Plans. and
Specifications are true, correct and accurate as of the commencement of work by Contractor. Any
material deviation from the Plans and Specifications so warranted shall constitute a Change Order and
shall be treated as a Change Order pursuant to the provisions hereof.
ARTICLE 8
OBLIGATIONS OF CONTRACTOR
8.1 Contractor will provide all construction, supervision, inspection, labor, materials, tools,
equipment and subcontracted items necessary for the execution and completion of the contract work.
Contractor represents that it has the knowledge and skill to perform its duties under this contract
properly, promptly and efficiently.
8.2 Contractor will pay all sales, use, gross receipts and similar taxes related to the contract
work to be provided by the Contractor, which taxes have been legally enacted at the time of execution of
this Agreement.
83 Contractor warrants to Owner that all materials and equipment incorporated into the
contract work will be new unless otherwise specified,.and that all contract work will be of good and
workmanlike quality, in conformance with the contract documents.
8.4 Contractor shall be responsible for the acts and omissions of its employees and all
subcontractors engaged by Contractor, their agents and employees, and all other persons performing any
of the work or supplying any of the materials under this contract on behalf of or with the Contractor.
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8.5 Owner will obtain and pay for all necessary permits or authorizations from all
municipal bureaus or utilities which may be required for the construction or occupancy of said work.
Contractor will execute the Owner's name to any applications for such permits or authorizations.
Contractor will provide all construction, supervision, inspection, labor, materials, tools, equipment, and
subcontracted items necessary for the execution and completion of the Contract Work. The Contractor
may substitute materials that are equal in quality to those specified, or shown ina model home, if
applicable, and if Contractor deems advisable to do so.
ARTICLE 9
CHANGES
The Contractor is under no obligation to make any changes, additions, or alterations in the work
provided in the Contract Documents. Upon reasonable request of Owner, Contractor may make changes,
additions, or alterations, but the Contractor shall not be required to do so until the parties have executed a
written Change Order, which will become part of this Agreement, and Owner has agreed to pay
Contractor for changes in the work prior to any Change Order work being performed or with the
following progress payment (draw), at the option of Contractor. Owner agrees to make requests
concerning any changes, additions, or alterations in the work to Contractor and not to the workers,
including subcontractors on the job.
ARTICLE 10
CORRECTION OF WORK
10.1 Contractor shall correct any work that fails to conform to the requirements of the
Contract Documents where such failure to confonn appears during the progress of the Work, and shall
remedy any defects due to faulty materials, equipment or workmanship which appear within a period of
one (1) year from the date of substantial completion. The provisions of this paragraph apply to work
done by subcontractors as well as to work done by direct employees of Contractor provided Contractor
has met the requirements for substantial completion.
10.2 Contractor shall assign, upon payment of the full contract price, to Owner, to the extent
they are applicable, all rights under manufacturer's warranties on appliances, equipment, fixtures and
consumer products included in the house and located on Owner's property, to the extent such warranties
are assignable. Contractor provides no warranties relating to manufactured or consumer products.
10.3 The obligation to perform any warranty work by Contractor as provided for in this
Agreement or by Contractor's Limited Warranty, shall not begin until Contractor has received full
payment for the Project including any Change Order.
THIS CONTRACT CONTAINS ALL OF THE REPRESENTATIONS, WARRANTIES AND
PROMISES OF CONTRACTOR. NO AGENT OR REPRESENTATIVE OF CONTRACTOR IS
AUTHORIZED TO MAKE ANY REPRESENTATION OR PROMISE ON BEHALF OF THE
CONTRACTOR OTHER THAN THOSE CONTAINED HEREIN, AND THE CONTRACTOR MAKES
NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
WARRANTIES OF GOOD WORKMANSHIP, HABITABILITY AND FITNESS OF PURPOSE.
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ARTICLE 11
RELEASE OF LIENS
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Contractor, with his request for final payment, shall deliver to Owner a complete Release of
Liens arising out of this contract and a Stipulation Against Liens filed prior to any commencement of any
work, and, if required, shall furnish an affidavit through it as Contractor that the Releases include all
labor and material for which a lien could be filed. However, the Contractor may, if any subcontractor
refuses to furnish a release or receipt in full, furnish bond satisfactory to Owner to indemnify Owner
against any lien.
ARTICLE 12
ASSIGNMENT OF CONTRACT
Contractor reserves the right to assign any part or parts of this Agreement, but only with the
approval of Owner, which approval shall not be unreasonably withheld, delayed or conditioned.
Subcontracting of certain portions of the work shall not be considered an assignment subject to Owner's
approval. Owner may not assign this Agreement without the written consent of Contractor, which
consent shall not be unreasonably withheld, delayed or conditioned.
ARTICLE 13
ARBITRATION
13.1 All claims, disputes, and other matters in question between the parties in this contract,
arising out of or related to this contract or any breach or alleged breach of this contract, will be decided
by arbitration unless the parties otherwise mutually agree in writing.
13.2 If the parties can agree upon one arbitrator, then there shall be one arbitrator; otherwise,
there shall be three, one named in writing by each party of the contract within ten (10) days after notice
of arbitration is served by either party upon the other, and a third arbitrator selected by these two
arbitrators within ten (10) days thereafter. No one shall serve as an arbitrator who is in any way
financially interested in this contract or in the affairs of either party hereto.
13.3 Any arbitration arising out of or relating to this Agreement, the Project, the Work, the
Contract Documents, or the breach thereof may include by consolidations, joinder or in any other
manner, any other entities or persons whom the Owner or Contractor believe to be substantially involved
in common questions of fact, law or responsibility thereunder. Contractor shall use his best efforts to
require any subcontractors to submit to said arbitration proceeding and the joinder consolidation
hereunder.
13.4 In the event either party hereto wishes to request arbitration of any claim, dispute or
other matter in question, he shall first timely file a notice of demand for arbitration in writing with the
other party specifically describing the claims, disputes and other matters in question which it is wished to
be submitted to arbitration. Thereafter, a period of thirty (30) days shall elapse in order to provide
available time to amicably resolve such disputes, and failing such, the dispute then may be submitted to
an arbitrator as provided herein. The parties agree to proceed in accordance with the rights and
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procedures provided by the Pennsylvania Rules of Civil Procedure, including but not limited to the right
to engage in discovery.
13.5 In any case in which either party elects to submit a claim, dispute or other matter in
question to arbitration, as provided herein, such request or demand for arbitration shall be made no later
than six (6) months from the date said claim, dispute or other matter was known or should recently have
been ]mown by the party requesting arbitration. Any failure to therefore timely demand arbitration shall
constitute a bar to prevent the filing of an untimely claim. This provision shall not however expand or
extend any date or limitation on institution of legal equitable proceedings would be barred by the
applicable statute of limitations.
33.6 This agreement to arbitrate shall be specifically enforceable under the prevailing
arbitration law. Any award rendered by arbitrators shall be final and enforceable by any party to the
arbitration, and judgment may be entered upon it in accordance with the applicable law and any court
having jurisdiction thereon.
ARTICLE 14
NOTICE
14.1 Service of all notice under this Construction Agreement shall be sufficient if given
personally, by a nationally recognized delivery service, or mailed to the party involved at his or its
respective address hereinafter set forth, or at such address as any party may provide in writing from time
to time by certified mail, restricted delivery.
To the Contractor: Harry L. Smith & Sons, Inc.
5943 Devonshire Heights Road
Harrisburg, PA 171 12
To the Owner Robert V. Gothier, Jr. and Bonny L. Gothier
1000 North Front Street, Suite 500
Wormleysburg, PA 17043
(717) 731-0700
14.2 All such notices shall be deemed to have been given on the date delivered in person, or
mailed by registered or certified mail, postage prepaid, restricted delivery, and which latter event it is
deemed to have been given five (5) business days after deposit of any such mailing.
ARTICLE 15
INSURANCE
15.1 Indemnity. Contractor agrees to indemnify and hold Owner harmless from all claims
for bodily injury and property damage (other than the work itself and other property insured under
paragraph 16.2) that may arise from Contractor's operations under this Agreement, except those claims
resulting from the negligent or intentional actions of Owner or any subcontractors or materialmen of
Owner or parties under Owner's direction, responsibility or control.
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15.2 Contractor's Liability Insurance. Contractor shall purchase and maintain such
insurance as will protect it from claims under workmen's compensation acts and other employee benefit
acts, from claims for damages because of bodily injury, including death, and from claims for damages to
property which may arise out of or result from Contractor's operation under this contract, whether such
operations be by it or by any subcontractor or anyone directly or indirectly employed by any of them.
This insurance shall be written for not less than One Million Dollars ($1,000,000.00) single limit and
shall include contractual liability insurance as applicable to Contractor's obligations under this
Agreement. All subcontractors will be required to maintain current certification of insurance on file at
the Contractor's office showing in force comprehensive general liability, commercial automobile
liability, and workmens' compensation insurance.
15.3 Owner's Liability Insurance. Owner shall be responsible for purchasing and
maintaining liability insurance in an amount not less than One Million Dollars single limit and shall list
Contractor as an additional insured on the policy.
15.4 Owner's Property Insurance. Owner shall purchase and maintain property insurance
upon the entire dwelling home at the site to the actual cash value thereof. This insurance shall insure
against the perils of fire, extended coverage, vandalism, and malicious mischief. Contractor shall be a
certificate holder of Owner's contract at all relevant times which must contain a provision that same will
not be canceled with less than fifteen (15) days' notice to Contractor. Furthermore, in the event of
casualty loss at any time when there is any outstanding amounts due Contractor, Owner hereby
authorizes Contractor to notify such insurance carrier to hold said sutra then claimed due in trust prior to
payment to Owner pending written agreement of Owner and Contractor. Owner shall provide a copy of
the policy to Contractor prior to commencement of work. Furthermore, by obtaining such insurance,
Owner waives any and all rights of subrogation against Contractor, his subcontractors, officers, agents
and employees for personal injury and/or for loss or damage to the dwelling home to be constructed
during the construction to the extent that any such loss or damage is covered by insurance. Owner
covenants to timely notify, in writing, the insurance carrier of this waiver which shall be binding upon
Owner's carrier(s).
15.5 By obtaining such insurance herein provided, each party shall waive all rights against
each other for damages caused by any peril or loss covered by insurance hereunder and covenants'to
timely notify in writing the insurance carrier of this waiver which shall be binding upon each party's
insurance carriers.
ARTICLE 16
CONCEALED OR UNKNOWN CONDITIONS
16.1 The Contract Price is for the materials and labor in constriction of the contract work.
Owner shall pay for any additional costs involved in providing extra engineering or foundation work
which may be required if Contractor encounters abnormal or unusual subterranean conditions during the
course of construction including, but not limited to:
(A) Cost of removal of any rock in making excavation for foundation walls, sewage
or water lines.
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(B) Additional material necessary for the construction of footers and foundation that
may be required in excess of blueprint specifications.
(C) The cost of labor and.materials needed to divert or control surface water found
during the course of construction.
16.2 Contractor shall, before such conditions are disturbed, notify Owner of (I) subsurface
or latent physical conditions at the site differing materially from those indicated in this contract or
(2) unknown physical conditions at the site that are of an unusual nature. Owner shall promptly
investigate the conditions, and if he finds that such conditions do materially so differ and cause an
increase in Contractor's costs, or of the time required for performance of any part of the work under this
contract, whether or not changed as a result of such conditions, a specific cost adjustment shall be made
and the Contract Price and time for performance adjusted by Change Order.
ARTICLE 17
NOTIFICATION OF DELAYS AND EXTENSIONS OF TIME
If Contractor is delayed at any time in the progress of the construction work by any act,
failure or neglect of Owner or by changes ordered in the Project or by labor disputes, fire, unusual delay
in transportation, adverse weather conditions not reasonably anticipated, unavoidable casualties, or any
causes beyond Contractor's control as provided in Article 19, or a delay authorized by Owner, Contractor
shall notify Owner in writing within fifteen (15) days of the occurrence and then the date for substantial
completion shall be extended for the period of such delay.
ARTICLE 18
FORCE MAJEURE
If either party shall be delayed or hindered in or prevented from the performance of any act
required hereunder by reason of war, fire or other casualty, an act of God, strike, lock-out, labor trouble,
shortage of materials or equipment or inability to procure same, failure of power, restrictive
governmental laws or regulations, riot, insurrection, or other causes beyond the control of the party
delayed, then performance of such act shall be excused for the period of such delay.
ARTICLE 19
RIGHT OF INGRESS AND REGRESS
It is a covenant of the contract that Owner does hereby grant and convey to Contractor and its
successors and assigns, full and complete rights of ingress, regress and such occupancy or possession of
the premises hereinbefore described as shall reasonably be required by Contractor for the aforesaid
construction. Any refusal thereof after written, notice from Contractor shall be a default by Owner
whereupon the full amount of the Contract Price shall become immediately due and payable.
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ARTICLE 20
DEFAULT
20.1 Default by Owner. If Owner shall default hereunder prior to the beginning of
construction work, Contractor shall retain the-money paid by Owner as liquidated damages, and this
contract shall thereupon terminate. If no money has been paid, Owner agrees to pay Contractor the sum
of $ as liquidated damages and, upon such payment, neither party shall have any
further obligations to the other hereunder. The parties have agreed that, by virtue of the difficulty in
determining Contractor's damages, said sum is an agreed amount as liquidated damages and not as a
penalty. If, following commencement of any work, Owner fails to make a progress payment to
Contractor, or the final payment, as herein provided through no fault of Contractor, or to timely fulfill
any other material obligation of Owner, specified in this Agreement, Contractor may, upon fifteen (15)
days written notice to Owner, terminate the contract and recover from Owner payment for all work
completed and for any proven loss sustained, including reasonable profits all damages permitted by law
and reasonable attorneys' fees if Owner does not cure within said period.
20.2 Default by Contractor. If Contractor, without good or legal cause, defaults or neglects
to carry out the work in accordance with the Contract Documents or fails to perform any material
provision of the contract, Owner may, after twenty (20) days' written notice to Contractor specifying the
default, and without prejudice to any other remedy he may have, make good such deficiencies and may
deduct the cost thereof from the paymentthen or thereafter due Contractor or, at his option, may
terminate the contract and take possession of the site and of all materials, equipment; tools, and
construction equipment and machinery thereon owned by Contractor and may finish the work by
whatever reasonable method appropriate, and if the unpaid balance of the Contract Price exceeds the
expense of finishing the work, such excess shall be paid to Contractor, but if such expense exceeds such
unpaid balance, Contractor shall pay the difference to Owner. If Contractor materially breaches this
Agreement, and the breach is uncured after the notice period or Contractor has not diligently proceeded
to cure said default prior to Owner being entitled to possession, Owner and Contractor shall promptly
meet and agree as to the balance due to Contractor for work and materials properly performed, pursuant
to this Agreement for which payment has not previously been made, whereupon said sum shall be placed
in escrow pending completion of the dwelling which the same said sum shall be paid with any interest
accruing thereon to Contractor absent demonstrable increased costs which Owner incurred to complete
the home but only in accord with Contractor's plans and specifications.
20.3 The remedies herein provided shall be in addition to and not in substitution for the
rights and remedies which would otherwise be vested in either party, under the terms of this Agreement,
or otherwise, all of which rights and remedies are specially reserved by each, and the failure to exercise
the remedies herein provided shall not preclude the resort to any appropriate remedy, nor shall the use of
the special remedies hereby provided prevent the subsequent or concurrent resort to any other remedy
which by law would be. vested in each for the recovery of damages, moneys due, or otherwise, in the
event of a breach of any of the covenants by Owner.
ARTICLE 21
OWNERSHIP OF MATERIALS
It is mutually agreed that all materials delivered to and/or used in the construction of the
premises shall be regarded as the property of Contractor until paid for by Owner. All materials, after use
14
in construction of the premises, shall be regarded as the property of Contractor until paid for by Owner.
No materials shall be removed without consent of the Contractor.
ARTICLE 22
SEPTIC SYSTEM
After final approval of the installation of the septic system by the Sewage Enforcement Officer,
or other officer charged with this duty, of the municipality in which the system is installed, Contractor
shall have no further responsibility for any malfunctions or other problems which may be encountered
with respect to the system, whether due to design or any other cause whatsoever, except workmanship for
one year. Contractor's responsibility for the system shall be limited to Seven Thousand Five Hundred
and 00/100 ($7,500.00) Dollars as set forth in the allowance schedule.
ARTICLE 23
REAL ESTATE TAXES
All real estate taxes, charges and assessments are the responsibility of Owner. Owner shall
indemnify and hold harmless Contractor from any and all claims, demands or liabilities, including
attorneys' fees, arising from the imposition of any such real estate taxes and assessments.
ARTICLE 24
GENERAL PROVISIONS
24.1 It is further hereby understood that Owner reserve their right and that of their
agents, to inspect the said premises at any reasonable time that would not unreasonably interfere with
Contractor's work. Contractor shall reasonably cooperate with such inspections. Owner assumes all risk
for personal injury by doing so.
24.2 In the event of breach of this Agreement by Contractor, Contractor however shall
not, in any event, except as provided herein, be liable for any indirect or consequential damages, costs,
or expenses to include loss of use, loss of opportunity, loss of market value, loss of rental value or similar
such indirect claims.
24.3 Words of any gender herein shall include any other gender, and the singular shall
include the plural and visa versa whenever the same is necessary to produce a fair and meaningful
construction
24.4 This Agreement shall not be altered, amended, changed or modified except in writing by
the parties.
24.5 No third party shall have any rights or benefits from this Construction Agreement, other
than Owner's secured lender. In the event any provision of this Agreement is found to be illegal and
unenforceable shall be severable from the contract and the balance of the contract may be enforced as
though such provision were not contained herein.
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24.6 This Agreement contains the entire agreement between Contractor and Owner. There are
no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise, of
any kind whatsoever concerning the construction, except as stated in writing in this Agreement.
24.7 This Agreement, the rights and obligations as herein provided, shall be binding upon to
the benefit of the parties, their respective successors and permitted assignees.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first
above written.
ATTEST: CONTRACTOR
HARRY L. SMITH & SONS, INC.
By:
ry L. Smith
WITNESS: OWN
Robe t e r.
38675
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NI.
NONWARRA.NTABLE CONDITIONS
The following is a statement of conditions that are not subject to Contractor's Limited
Warranty and explains some of the changes and maintenance items that may occur in your new
home over the first year or so of occupancy. Your home will require more maintenance and care
than most products, since it is made up of many different components, each with its own special
characteristics. Also, an owner must understand that, like other products made by humans, a
house is not perfect. It will show some minor flaws and unforeseeable defects, and it may
require some adjustments and touching up.
All residential construction goes through a period of settlement and, as the seasons
change, periods of expansion or contraction will occur. Asa result, the home will experience
minor material changes which are unavoidable and are considered normal. The owner should
also be aware that he/she is responsible for proper and timely home maintenance. It is helpful to
the owner's maintenance program to keep a color chart of the different materials used on the.
construction and a small supply of corresponding colored paint, stain or grout for easy touch-up.
Damage caused by owner negligence, improper maintenance or changes, alterations or additions
performed by anyone other than the Contractor, his employees, or subcontractors directed by the
Contractor is excluded from the Warranty.
As described in the Limited Warranty provided to you, which this statement of
Nonwarrantable Conditions is made part of, Contractor will correct certain effects that arise
during defined time periods afer construction is completed. Other items that are not covered by
the Contractor's Warranty may be covered by manufacturers' warranties. There are some
conditions, however, that are not covered under the Contractor's Warranty. It is important for
you to read these carefully and understand that you have not contracted for the Contractor to
correct certain types of problems that may occur in your new house. These guidelines will alert
you to certain areas of maintenance that are the responsibility of the new homeowner, and that
could lead to problems if they are neglected.
The following is a list of an outline of some of the conditions and components that are not
warranted by the Contractor. Please be sure you understand this list. Ask the Contractor if you
have any questions and feel free to consult your attorney before signing the acknowledgment and
the Limited Warranty Agreement.
• s
Nonwarrantabie Conditions
1. Concrete foundations, walks, drives, and patios can develop hairline cracks less
than 1/4" inch in width not affecting the structural integrity of the building. There is no known
method of eliminating this condition, which is caused by characteristics of expansion and
contraction. It does not affect the strength of the building and is not a condition covered by any
warranty.
2. Masonry and mortar can develop hairline cracks due to shrinkage in either the
mortar or brick. This is normal and should not be considered a defect. It is not covered by any
warranty.
3. Wood will sometimes crack or "spread apart" due to the drying out process. This
is most often caused by the heat inside the house or the exposure to the sun on the outside. This
is normal and considered a maintenance item to be cared for by the homeowner.
4. Drywall (sheetrock) will sometimes develop nail pops or settlement cracks. This
is a normal part of the drying out process and an item that can be easily handled by the
homeowner with spackling during normal redecorating. However, if the homeowner wishes, we
will send in a repairman. at the end of one year and make necessary repairs. Our repairs will not
include repainting.
5. Floor Squeaks: After extensive research and writing on the subject, it has been
concluded that much has been tried but little can be done about floor squeaks. Accordingly, floor
squeaks are not covered by the builder's warranties. Generally, they will appear and disappear
over time with changes in weather.
6. Floors: Your floors are not warranted for damaged caused by neglect or the
incidents of use. Wood, the and carpet all require maintenance. Floor casters are recommended
to prevent scratching or chipping of wood or tile; clean stains from carpets or wood or tile
immediately to prevent discoloration. Carpet has a tendency to loosen in damp weather and will
stretch tight again in dryer weather.
7. Caulking: Exterior and interior caulking in bathtubs, shower stalls, and ceramic
tile surfaces will crack or bleed somewhat in the months after installation. This is normal and
should not be considered a problem. This is not covered by the warranty and is a minor
2
occurrence to be maintained by the homeowner. However, if the homeowner wishes, we will
send in a repairman at the end of one year and make necessary repairs.
8. Brick. Discoloration: Most bricks may discolor due to the elements, rain run-off,
weathering, or bleaching. Thus, the color of the bricks is not considered a warranty item.
9. Broken Glass: Any broken glass or mirrors which are not noted on the final
inspection form will not be covered, excludinE cracks or broken Blass due to improper
installation within the warranty period.
10. Frozen Pipes: The homeowner must take precautions to prevent freezing during
severe cold weather, such as removing outside hoses from sillcocks, and turning off the water
system if the house is to be left for extended periods during cold weather. Frozen pipes or
sillcocks not caused by defects in material or workmanship will not be considered a warranty
item.
11. Stained Wood: All items that are stained will normally have a variation of colors,
due to the different texture of the woods. Doors that have panels will sometimes dry out and
leave a small crack of bare wood. This is due to weather changes. None of these is a warrantable
condition (to the extent within normal tolerances).
12. Paint: Good quality paint has been used internally and externally on your home.
Nevertheless,, exterior paint can sometimes crack or check. This is not a defect in the paint, but it
is most often caused by other sources. You should avoid allowing lawn sprinklers to hit painted
areas, washing down painted areas, etc. Inside, do not scrub latex-painted walls, and be aware of
the newly painted wall as you are moving furniture. The best paint will be stained or chipped if it
is not cared for properly. Any defects in painting not caused by defects in materials or initial
application that are not noted at final inspection are nonwarantable conditions.
13. Cosmetic Items: The upkeep of cosmetic aspects of your home is your
responsibility. You have not contracted with the Contractor to cover ordinary wear and tear or
other occurrences subsequent to construction that affect the condition of features in your home.
Chips, scratches, or mares in tile, woodwork, walls, porcelain, brick, mirrors, plumbing fixtures,
marble and Formica tops, lighting fixtures, kitchen and other appliances, doors, paneling, siding,
3
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screens, windows, carpet, vinyl floors, cabinets, etc., which are not recognized and noted by you
at final inspection are nonwarrantable conditions.
14. Plumbing: Dripping faucets not caused by defects in materials or workmanship,
toilet adjustments, and toilet seats are covered by the builder's warranty for a thirty-day period
only. After that, they are the owner's responsibility. If the plumbing is "stopped up" during the
warranty period and the person servicing the plumbing finds foreign material in the line, the .
owner will be billed for the call.
15. Alterations to Grading: Your lot has been graded to insure proper drainage away
from your home. Should you wish to change the drainage pattern due to landscaping, installation
of patio or service walks, or other reasons, be sure a proper drainage slope is retained. We
assume No Responsibility for the grading or subsequent flooding or stagnant pool formation if
the established pattern is altered.
16. Lawn and Shrubs: We accept No Responsibility for the growth of grass or.shrubs.
Once we grade and properly seed, and/or sod and fertilize, it is for the homeowner to water and
spread ground cover to prevent erosion. We will not regrade a yard, nor remove or replace any
shrubs or trees, except for those which are noted as diseased at final inspection.
17. Roof Damage: After the initial one year period, the warranty on your roof is for
material only and is prorated over the period of the lifetime use of the roof. Warranty claims for
any defects in materials will be handled with the manufacturer with our assistance. The
Contractor will be responsible for any damages caused by walking on the roof or by installing a
TV antenna or other item on a roof.
18. Heating and Air Conditioning: Your heating and air conditioning is covered by a
manufacturer's warranty. It is the owner's responsibility to be sure that filters are kept clean and
changed as required. Failure to do so may void your warranty. It is also a good policy to have
the equipment serviced or checked at least yearly.
19. Humidity System: (to be inserted)'
4
s
I/We acknowledge having read, understood and received a copy of the above outline of
nonwarrantable items. We understand and agree that these are conditions for which we have not
contracted and will not hold the Contractor liable.
Owner: Owner:
Robert V. Gothier, Jr. Bonny. Gothier
Date:
38944
5
i e
LIMITED WARRANTY AGREEMENT
This LIMITED WARRANTY AGREEMENT is entered into by HARRY L. SMITH & SONS,
INC. (hereinafter, "Contractor") and Robert V. Gothier, Jr. and Bonny L. Gothier (hereinafter,
collectively "Owner") in conjunction with that certain Construction Agreement between Contractor and
Owner dated May 3 o , 2002 for the construction of an improved dwelling home located at 99 Manor
Drive, Dillsburg, Monaghan Township, York County, Pennsylvania.
What is Covered by the Warranty.
Contractor warrants that all construction related to the home performed by Contractor and
subcontractors retained and selected by Contractor has been performed in substantial conformity with the
Plans and Specifications and approved change orders pursuant to the Construction Agreement.
Contractor warrants that all materials used in construction are new and free from defect and that
construction will be of good and workmanlike quality determined by the standards of construction in the
Harrisburg, Pennsylvania area. Contractor warrants that for a period of one (1) year from the date of
substantial completion, Contractor will adjust or correct minor defects, omissions, or malfunctions. such
as missing equipment or hardware; sticking doors, drawers and windows; dripping faucets; and other
minor malfunctions reported by Owner upon inspection of the property.
Furthermore, within one (1) year from the date of substantial completion, Contractor will repair
or replace, at Contractor's option, any defective materials or work (except work not covered) and any
latent defects in material or workmanship by the standards of construction relevant in the Harrisburg,
Pennsylvania area. A latent defect is defined as one which was not apparent at the time of initial
occupancy. Owner agrees to accept a reasonable match in any repair or replacement in the event the
original item is no longer available.
2. What is Not Covered.
A. This Limited Warranty does not cover damage resulting from fires, floods, storms.
electrical malfunctions not caused by defective materials or workmanship, accidents, acts of God; or
damages from alterations, misuse or abuse of the covered items by any person, or damage resulting from
Owner's failure to observe any operating instructions furnished by Contractor at the time of installation:
failure of Owner to regularly and properly maintain the home and its systems, such as the humidifier
system, for example; or damage resulting solely from a malfunction of telephone, gas company, power
company, or water company equipment or lines.
B. Any items furnished or installed by Owner, or subcontractors selected or retained by
Owner, are not covered by this Limited Warranty.
C. To the extent a manufacturer is responsible, this Limited Warranty does not cover any
appliance, piece of equipment, or the item, which is a "consumer product" for the purposes of the
Magnuson-Moss Warranty Act, 15 U.S.C. Section 2301 et seq., installed or included in Owner's
property. The following are examples of such appliances; and equipment, though not every home
f f
includes all of these items and some homes may include appliances or equipment not in this list:
refrigerator, range, space heater, washing machine, dishwasher, garbage disposal, ventilating fan, air
conditioner, heat pump or furnace.
(1) Contractor represents it has made all such excluded warranties available for
Owner's inspection and Owner acknowledges that they have received copies of any such warranties.
(Owner's Initials)
(2) Contractor hereby assigns, to the extent that they are assignable, and conveys
to owner all warranties provided to Contractor on any manufactured items that have been installed or
included in the Owner's property. Owner accepts this assignment and acknowledges that, to the extent
such warranties are assignable, Contractor's only responsibility relating to such items is to lend
assistance to Owner in settling any claim resulting from the installation of these products.
(Owner's Initials)
(Contractor's Initials)
D. The non-warrantable conditions, and any damage resulting therefrom, as set forth on the
five (5) page document titled "Non-Warrantable Conditions" executed between the parties
contemporaneously herewith are, of course, not covered by this Limited Warranty.
E. Any injury to persons or damages to personal or real property, other than the home. in
whole or in part, which may be a consequence of or incident to or result from any defects in materials or
performance of the work is excluded.
3. Remedies and Limitations.
A. Owner understands that the sole and exclusive remedy under this Limited Warranty
Agreement is repair and replacement of any portion of the improved dwelling horse so covered by this
Limited Warranty by Contractor at no cost to Owner.
(Owner's Initials)
B. Owner also understands that, with respect to any claim whatsoever asserted by Owner
against Contractor, there will be no right to recover or request compensation for, and Contractor shall not
be liable for any monetary damages, or incidental, indirect, consequential damages, or for secondary, or
punitive damages, absent fraud or Contractor's gross negligence. Contractor shall not be responsible for
any monetary sum for breach of this Warranty, absent Contractor's knowing failure to perform its
obligations hereunder after written notice. Any corrective work shall not extend the term of the Warranty
for any non-corrected item, but shall extend the Warranty for a period of one (1) year for only the
specific item(s) corrected, repaired or replaced.
(Owner's Initials)
2
t a
C. This Limited Warranty is personal to the original purchaser and does not run with the
property or the items contained in the house. The original purchaser may not assign, transfer. or convey
this Warranty without the prior written consent of Contractor, which consent shall not be unreasonably
withheld.
4. How to Obtain Warranty Service.
If a problem develops during the one (1) year warranty period, Owner shalt promptly notify the
Contractor of the specific problem, in writing, and what may be necessary to correct or repair it, if
known. Contractor, absent unforeseen circumstances, will commence performing its obligation under
this Limited Warranty within thirty (30) days of receipt of request, and will diligently pursue these
obligations until completion. Owner shall give Contractor full opportunity tc inspect the claimed defect
prior to any work commencing. If the problem may appear to require immediate attention,. Owner make a
report by telephone or facsimile and Contractor shall use his best efforts to address the matter
complained of in a prompt fashion. If Owner is unclear whether the problem is or is not warranty work,
Owner shall contact the Contractor.
Repair work will be done during Contractor's normal working hours. Owner agrees to provide
Contractor or Contractor's representative access to the house, and the presence during the work of a
responsible adult with the authority to approve repair and sign a call-back ticket upon completion of the
repair.
If the problem is covered under a manufacturer's warranty, Owner shall follow the instructions
provided with such warranty. In the absence of a written manufacturer's warranty. Contractor should be
contacted to obtain information and assistance in filing a claim.
5. Arbitration.
Any claim or controversy arising out of this Limited Warranty or breach thereof shall be
controlled by the arbitration provisions set forth in the Construction Agreement between Contractor and
Owner.
THIS LIMITED WARRANTY IS THE ONLY EXPRESS WARRANTY EXTENDED TO
OWNER BY CONTRACTOR. ANY ITEM OR CONDITIONS NOT SPECIFICALLY COVERED BY
THIS WARRANTY, OR IN THE DOCUMENTS HEREIN REFERRED, ARE EXCLUDED FROM
COVERAGE AND ARE THE RESPONSIBILITY OF OWNER. IT IS EXPRESSLY UNDERSTOOD
THAT THIS LIMITED WARRANTY IS IN LIEU OF ANY AND ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
HABITABILITY.
t s
6. Specific Legal Rights
THIS LIMITED WARRANTY GIVES THE OWNER SPECIFIC LEGAL RIGHTS WHICH
SHALL NOT LIMIT OTHER NON-WARRANTY RIGHTS WHICH MAY BE AVAILABLE TO
OWNER.
We acknowledge having read, understood and received a copy of this Limited Warranty
Agreement.
WITNESS: CONTRACTOR:
HARRY L. SMITH & SONS, INC.
By:
H . L. Smith, President
Dated:
38762
4
f •
ROBERT V
BONNY L.
GOTHIER, JR and
GOTHIER,
Owner
IN THE COURT OF COMMON PLEAS
YORK COUNTY, PENNSYLVANIA
V.
HARRY L. SMITH & SONS, INC.,
Contractor
NO.
STIPULATION AGAINST L2 NS
WHEREAS, ROBERT V. GOTHIER, JR. and BONNY L. GOTHIER, of 99
Manor Drive, Dillsburg, Pennsylvania 17019 (the "Owner") the
owner of the hereinafter described tract of land, has executed or
is about to execute contemporaneously herewith a contract with
HARRY L. SMITH & SONS, INC. of 5943 Devonshire Heights Road,
Harrisburg, Pennsylvania 17112 (the "Contractor") for
improvements to the premises located at 99 Manor Drive,
Dillsburg, Monaghan Township, York County, Pennsylvania, more
particularly described on "Exhibit All attached hereto and made a
part hereof (the "Premises").
NOW, May _, 2002, before any authority has been given by
said owner to the said Contractor to commence work on said
Premises or to otherwise construct any improvements thereto, or
to purchase materials for the same, or to enter into any
contracts with any subcontractors, or materialmen, or to
authorize any purchases by or through any subcontractors or
materialmen, in consideration of the making of said contract with
the owner and the further consideration of one Dollar ($1.00), to
Contractor paid by said Owner, and with the intent of all parties
to be legally bound hereby, it is agreed that no lien shall be
filed against the building or Premises or any part thereof, by
the Contractor or any subcontractor, or by any of the materialmen
or workmen or any other person for any labor, or materials
purchased, or extra labor or materials purchased, for the
building and improvements to the Premises (including hereafter
changes made thereto), the right to file liens being expressly
waived.
It is the full intent of the Contractor, for itself and for
any subcontractors or materialmen claiming for themselves, or by,
through or under the contract or the Contractor, that the right
to file a mechanic's lien, under the provisions of law and/or of
Acts of Assembly in such cases made and provided, for work done
or materials furnished in and about the building and improvements
to the Premises above described is hereby waived.
WITNESS our hands and seals the day and year first above
written.
K?l
fitness
/ le'
Witness
8 8 BARMY L
Sr4I'1
SOBS , INC
Attest*
By?
Exhibit A
ALL THAT CERTAIN lot or tract of land situate in Monaghan
Township, York County, Pennsylvania, being more particularly
bounded and described as follows, to wit:
BEGINNING at a point on the southern right-of-way line of the
Dillsburg Road, also known as Bailey Road, LR 66001, at the line
dividing lands now or formerly of Jacob J. Myers, et al. and
lands now or formerly of Florence Eckels; thence along said
dividing line, South 12 degrees 47 minutes 34 seconds East, a
distance of 2,637.48 feet to a point dividing Lot 8 and Lot 5 on
the hereinafter mentioned plan of lots; thence, along the line
dividing Lot 8 from Lots 5 and 6 on the hereinafter mentioned
plan, South 67 degrees 07 minutes 30 seconds West, a distance of
1,187.44 feet to a point on the line dividing Lots 8 and 6 on the
said plan; thence, continuing along the said dividing line, and
along a curve to the left having a radius of 275.00 feet, an arc
distance of 370.72 feet to a point on said dividing line; thence,
continuing. along said dividing line, South 10 degrees 6 minutes
54 seconds East, a distance of 263.36 feet to a point on said
dividing line; thence, continuing along said dividing line, South
09 degrees 09 minutes 01 second East, a distance of 436.79 feet
to a point on the northern right-of-way line of Cemetery Road;
thence, along said northern right-of-way line, North 73 degrees
22 minutes 46 seconds West, a distance of 55.52 feet to a point
at the line of lands now or formerly of the Jennie Fishel Estate;
thence, continuing along said lands, North 09 degrees 09 minutes
01 second West, a distance of 422.12 feet to a point at the lands
now or formerly of Robert J. Dennison; thence, along said lands,
North 10 degrees 06 minutes 54 seconds West, a distance of 262.49
feet to a point; thence along the line dividing Lots 8 and 6A on
the hereinafter mentioned plan and along a curve to the right
having a radius of 325.00 feet an arc distance of 276.27 feet to
a point on the line dividing the said lots; thence, along said
dividing line and continuing along lands now or formerly of John
W. Heller and wife, North 14 degrees 13 minutes 20 seconds West,
a distance of 578.70 feet to a point at said lands; thence,
continuing along the line of lands now or formerly of Heller,
South 59 degrees 31 minutes 02 seconds West, a distance of 82.19
feet; thence, along lands now or late of Dennison, South 74
degrees 16 minutes 25 seconds West, a distance of 79.21 feet to a
point on the line of Elliot Road, as shown on the hereinafter
mentioned plan of lots but as is unopened as of this date;
thence, North 10 degrees 38 minutes 03 seconds East, a distance
of 52.44 feet to a point; thence, continuing along the line of
the said Elliot Road, and along a curve to the right having a
radius of 125.00 feet an arc distance of 1.50 feet to a point at
the corner of Lot 1 on the hereinafter mentioned plan; thence,
along said Lot 1, North 78 degrees 35 minutes 54 seconds East, a
distance of 891.10 feet to a point; thence continuing along said
lot, North 13 degrees 06 minutes 43 seconds West, a distance of
568.39 feet to a point; thence, continuing along Lot 1 and Lot 4
of said plan, North 26 degrees 31 minutes 37 seconds East, a
distance of 472.46 feet to a point; thence, along Lot 4, North 61
degrees 17 minutes 27 seconds East, a distance of 593.60 feet to
a point on the line of lands now or formerly of Bentzel; thence,
along the lands now or formerly of Bentzel, South 48 degrees 57
minutes. 10 seconds East, a distance of 60.49 feet to a point;
thence, continuing along lands now or formerly of Bentzel, North
45 degrees 02 minutes 50 seconds East, a distance of 658.35 feet
to a point; thence, continuing along the lands now or formerly of
Bentzel, North 12 degrees 50 minutes 17 seconds West, a distance
of 916.36 feet to a point on the southern right-of-way line of
the Dillsburg Road; thence, along said right-of-way line, North
79 degrees 12 minutes 26 seconds East, a distance of 36.20 feet
to the point or place of BEGINNING..
BEING all of Lot 8 as shown on the final plan of the Deerhead
Manor Subdivision prepared for the Myers, Lock, Ashway and Titus,
as prepared by William E. Secra and Associates and dated August
15, 1975, and all as recorded in the Recorder of Deeds Office in
and for York County, Pennsylvania, in Plan Book Y, Page 414.
Said lot containing 54.224 acres, as shown on such plan.
TOGETHER with and subject to, for all times now and in the
future, the right of ingress, egress and regress over, through
and across a certain private road extending over and across lands
adjoining the aforementioned lands to the west and running from
the public road leading to Mount Pleasant (being known variously
as the Mount Pleasant Road, Manor Drive, and Township Route 894),
eastwardly over and across property now or late of Danner to the
western boundary line of the aforementioned lot, as the same is
now located and maintained, and as the same is shown on the
aforementioned plan of lots, and as the same is now used by the
Grantors herein, Heller, and Dennison, and to the Grantees, their
heirs, assigns, and successors, here and forever hereafter.
BEING the same premises The Peter M. Portmann Revocable
Declaration of Trust, by deed dated May 25, 2001, and recorded
June 11, 2001, in the Office of the Recorder of Deeds in and for
York County, Pennsylvania, in Record Book 1441, Page 4654,
granted and conveyed unto, Robert V. Gothier, Jr. and Bonny L.
Gothier.
SPECIFICATIONS
New Construction - Residential
OwnerfA4ortgagor. Robert V. Gothier, Jr. and Bonny L. Gothier
1772 North Meadow Drive, Mechanicsburg, PA 17055
Address of Property: 99 Portman Drive, D llsburg, PA 17019
Contractor. Harry L. Smith & Sons, Inc.
5943 Devonshire Heights Road
Harrisburg, PA 17112
(717) 545-5842
The contractor shall provide all necessary labor and materials and perform all work required to
complete the building within the scope of these specifications and in accordance with the plans attached hereto
and made a part hereof
The contractor and all eub contractors sha4 comply with all building and sub-division ordinances and
sanitary laws applicable to this work.
A survey of the budding site will be furnished by the owner. The owner shall also establish the location
of the building and die grade level, The contractor is responsible for the laying out of the budding. The
contractor shall fiuvish insurance as required by law and to comply with the requirements of the mortgagee.
EXCAVATION: All top soil from immediate area of the building and approximately 30' around shall be
scraped and piled on the lot away from the building site. Excavation for footers shalt
extend to solid undisturbed earth, at least 6" below kreal frost level.
FOOTERS:
Size. 20" x 10"
Material: concrete
BASEMENT WALLS:
Svc: 10" concrete, 9 High
Material: concrete; crawl space 10" ClvLU.; Garages and Porches 8" C.MU.
Steel I-Beam Size: 10" x 25 Lb.
Material: steel
Column Supports Type: 4" SteelFHA.
WATERPROOFING: Foundation coating sprayed tar
Area Weils, MateriaL• none
Size:
Drain 'illeSize: 8" Form-A-Drain exterior for drainage ( 8" Form-A-Drain for radon interior of
footer / Radon piped thin roof/ Radon fan by Owner
Connected to: Sump Pit pumped to Outside House
Top of foundation to be determined above or below crown of road as per plans.
BASEMENT FLOOR:
Mu: 3000 N.
Thickness: 4" Concrete
No. Floor Drains: I
Connected To: Sumn Pit
FRLUTIR"G CAR EYTYY:
Sill Seal on Foundation Wall
Sill Size: 2 x 6
Material: pressure treat
1st Floor Joists Size: 12"
Materiab T3I
1st Floor Joists over girder or beam (Yes) or secured by ledger method (No)
Sub Floor Size: 3/4"
Material: Fir T.G. Plywood
How laid. nailed and glued
Bridging Material: QUA
Spacing: NIA
0
FRAMING CARPENTRY(CONTIIIUM):
Exterior Wall Studding Ske: 2 x 6
Material: spruce
EXTERIOR WALL PLATES:
Size: 2x6
Material: spruce
EXTERIOR WALL NO. OF PLATES
Bottom: 1
Top: 2
EXTERIOR WALL SHEATING:
Size: 1/2"
Material: FirPlywood
SIDING:
Material: Dryvit and L and S Stone
INTERIOR WALL:
Stud Size: 2x4
Material: spruce
Plates size: 2 x 4
Material:
No. Plates Bottom: 1
No. Plates Top: 2
2
HEADERS, ALL FRAME WALLS - Each header will bear on at least one jack stud per end.
Opening up to 3' Header Size: 2 x V
Material, spruce
Opening Y to 6' Header Size: 2 x10"
Material: spruce
Opening 6' -12' Header Size: 2 x10"
Material: spruce
Opening over 12' Header Size: 2 x12"
Material: spruce BASEMENT STAIRWAY:
Size Horses: pre-manubeured Yellow pine
No. Horses:
Rise:
Tread:
Riser Material and Size:
Tread Material and Size:
JOISTS (For Load Carrying Floor)%
Size IT'
Material: T.JS.
Placed: 16" o.o.
Bridging Material* N/A.
Spaced: N/A
SUB-FLOORING:
Size:.3/4"
Material: T.G. Fir Plywood
How Laid: nailed and glued -
CEILING JOISTS:
Trusses Area 2' o.m
Size:. Stick Built Areas 2 s 3
Material: Spruce
Placed: 16" O.c.
Bridging Material: N/A
Spaced: N/A
0
3
ROOF RAFTERS:
Trusses Area 2' o.e
Size: Stick Built Areas 2 x 8
Material: spruce
Spaced: 16" o.c,
RIDGE.
Size: 2 x 10 at Stick Built Areas
Materiah spruce
If Hip roof, hip rafter Size: 2x 10
Material: Spruce
ROOF SHEATHING MATERIAL: CDX Fir Plywood ,
Size: l/2"
ROOFING:
0
Slnderiaw Material: 15 lb. felt
Shingle Weight: GAF or EIX Architectural Design 30 Year Warranty
Shingle Exposure: 5"
How Fastened: nailed
CORNICE:
Face Board Material: Spruce
Size: 2x8
Soffit Material: Aluminum Alcoa
Size: As plans.
Rakeboard Material: 2 x 8 Size: As plans.
WINDOWS:
Type: Lincoln Aluminum clad with Screens, No Grilles.
Hardware Finish: bright brass
Model Luck: Plymouth
No. Hinges per Door. 3
Size Hinges: 3 lt2"
Hinge Finish: bright brass
ATTIC VENTILATION: Ridge Vent
EXTERIOR DOORS MATERIAL: By Plan - Allowance
Jamb Size: 6"
Hardware Make: By Allowance Schlage - F Series Plymouth
MASONRY ABOVE FOUNDATION:
Material: Land S Pre-Manuigctured Stone
Size: Random
Manufacturer. Land S
Mortar Mlx: Standard Color
INTERIOR FLOORING. carpet - hardwood Br finishing - vinyl - all ceramic the in all areas -
underlayman and installation - Allowance.
INTERIOR CARPENTRY:
Interior Door Style:
Thickness: 13/8" Flush Hardboard 6'8" Pre-Primed
Material:
No. Hinges: 3
Make Hardware: Plymouth Schlage F-series
Hardware Finish: 605
Jamb Material: Poplar
Size: '/."Paint Grade
Door Stop Material: poplar
Size: 1318"
Baseboard Material: Poplar
- Sae: '/:' x 5-%, " Sanitary Paint Crrade
Casing: '/. " x 3 Y: " SaniteryPaint Grade
ll'ITERIOR CARPENTRY (CONTINUED):
Window Sill Material: Poplar
Size: 1 '1/4 " x 4 5/8"
Closet Rods Material: 1 3/8'.' round white painted steel rods
Closet Shelves Material: Birch plywood
Size: '/4"
Plumbing Access Panels Material: N/A
Door Bumpers: Ives-Solid Wallmount
- Interior Wall Surface Type: Drywall
Thickness: %d'
Interior Decorations Walls: Painted
Trim: Painted - Spray one coat, Brnsh one coat
Doors: Painted -Spray one coat
?Nails: Painted- Spray 2 cow
KITCHEN EQUIPMENT: By Allowance $50,000.00
PLUMBING:
Water Supply Pipes Size: 3/4" main line & 1/2" supply to baths: Type L
Material: copper
Drainage Pipes Size: comply with code requitement
Material: pv.c.
Water Supply.. Public or Private: private: Existing Well
Sewer Private:
New Septic System - Permits By Owner
It Private, Size of Septic Tank: By Design
No. Feet drain field:
Drain connected to:
HEAT: Heat system shall be designed to heat all of the living area to a minimum temperature of 75 °F
When exterior temperature is 0 °F.
Type:
Size Duct of Pipe: duct
Material Duct or Pipe:
Fuel: Gas
Size Fuel Storage: N/A _
Register or Radiator Type: register
Does Heat Plant Furoisb Domestic Hot Water. no
ELECTRIC:
Entrance Cable Size: 320 AMP SERVICE
Materiah
Fuse or Breaker Boa Make: breaker
No. Circuits:
Sine Wire to Normal Circuits: by code
Size Wire to Range and Oven: by code
No. Convenience Locations: 350 locations @ $25.00
No. Fixture Hangings: 105
No. G.F.I. Locations: 7
Inspections
- No. Overhead Fixtures: light fixtures allowance
_ No. Outside Lights and Locations: light Ixttaes allowance
Will All Outlets he Grounded: yes
Will telephone wiring be concealed: yes
5
INSULATION:
Exterior Wall, Type: R-19
Interior Wall, Type: R-11
Ceiling: R-38 Blown where applicable
Type: fiberglass
11
DRYWALL-NEW AND EXISTING WORK: By Alloww=S24,900.00
GUTTER AND DOWNSPOUTS:
- Size Gutter. 5"
Material: Aluminum
Size Drop. 3"
Material: Alumimmm
Chimney Flashing Material: Aluminum
EXTERIOR GRADING:
Slope from house: By Elevation on Plans.
No Fill or Topsoil hauling on or off lot included in Contract.
4 y _ <, WALKS AND DRIVES:
Sidewalk: Stamp concrete fromNew House Front Porch to Existing Sidewalk.
New Front Porch Material: Stamp concrete
Existing Front Porch will not be changed.
GarageFloorMaterial: concrete 3500lbs.
Thickness: 4"
Llst any special work or material not covered above:
All Permits by Owner.
J
FSTF,R
OR
Excavation Allowance. . ................. ....... ............................... ........... .
$ 7,500.00
Footer Forms will be 8" Form A-Drain-Interior for Radon, Exterior for Drainage.
Roofing will be GAF or ELK 30 Year Architectural NOT Metal -Do not remove existing House Roof.
Lincoln Window Allowance ......................................................................... $ 45,020.00
Two (2) Skylites: 21 `h "x 46 TV, Non vent Vehm
Exterior Doors ardLocks Allows= .......... ...._........................................... ... $ 4,600.00
Total Porch and Deck Allowance - E-PAY Flooring 1/4" x G' boards on Deck including
Framing Allowance ................ ..................... .............................. ...... $ 10,270.00
Deck Material above Foyer on Balcony to be Rubber under Floating Trex.
Metal Pipe Rail 38" High at Deck and Balcony, no rails Powder Coated.
19 pair PVC Shutters on Existing House as Plans.
Butt Glazed Suspended Connector 3" Aluminum Frame: One section 13 L.F.,
One section I I L.F. Allowance ............................................................ $ 4,650.00
Exterior Stone Work. Allowance - Stone will be L and S Syrnhetk Stone, Style like Barn,
Color more Brown and Earth Stone. Includes inside Fireplace Facing ................. $ 39,596.00
- DryvitAllowance -Including Materiai,Labor, accessories,ard cauking ....................... $76,162.00
Stamp Concrete Front Porch - New House Stamp Concrete Walk from New House Front
Porch to Existing Sidewalk.
New Metal Bilco Door - 62" wide, 88" Long.
Septic Sand Mound $7,500.00 by Contractor, Design and Permit By Owner.
No Landscapiag.
No Seeding.
Find Existing Wel. No Well or Purnp work included in Contract.
No Driveway Cost in Contract: Contractor NOT responsible for repairs or resurfacing
existing driveway.
))?I48
Stair Foyer: Poplar Skirts Handrail Birch 46010
Poplar Risers Newell Post 94011
Maple Treads Pane Balusters 45015
- Material Cost A2owance ................................................................. $ 12,384.00
All other Stairs including New Stairs in Existing House will be Yellow Pine Stairs,
- Birch mails with Handrails 46010 and Newel Post Wl 1 and Primed Balusters ;#5015 .
Horse Head at Staircase by Owner.
e
Kitchen Cabinets and Appliances Allowance -Includes Cabinets in New House and
Existing House; and All Tops, All Buikins, Vanillas and Vanity tops, Hood Vents,
refinishing in Existing Kitchen, and all appliances, ducts, and vents ..................... S50,000.00
Sauna Purchased by Owner, Installed by Contractor.
No Stairs in Garage from Floor to Attic. °
Change Master Bedroom Ceiling as per Changes on Print Attached.
No Framing in Great Room for Entertainment Area.
Master Bath Shower will be like Alternate -No Door.
Allowance for Pm-Fabricated Wood Burning Fireplace Unit in Master Bedroom
Majestic Model d SHR42 with Two (2) 6" Legs, One (1) 8" Header,
and One (I) 20" Deep x 66" Long Hearth .............................................. S 2,100.00
36" Masonry Fire Box in Great Room
Synthetic Stone Face for Great Room Fireplace by L and S Stone.
All interior Doors will be 13/8" Flush Solid Hardboard Pre-Primed painted.
-
-
Door to Master Bedroom- Solid Hardboard Pre-Primed, TO" Pocket Door.
12' Folding Glass Wall consisting of Four (4) 3'0" Full view doors with wood stiles
hinged together and sliding on an overhead track.
Ali Exterior Doors by Allowance including Hardware ............................................ S 4,600.00
.;. :. Overhead Doors and Openers by Central State Distributors .................................... $ 3,050.00
Plumbing Allowance - which includes Wall Supply Pipes to be Type "L" Copper,
"
Copper Main Line and Branch to Baths %:" Copper P.V.C. Drain lines
s ?r
to meet codes, Two (2) Bradford White 50 Gallon ie IVatefHeaters.......... $ 15,090.00
Plumbing Fixtures Allowance-Includes Tubighower, Faucets, Drains, Toilets and
- - Seats, Tub and Shower Doors, Sinks and Faucets, Whirlpools and Faucets
with Trim Kits and includes all plumbing fixtures ........................................ S 6,900.00
Heating Allowance - Includes /
V Floor System
One Tmne gas-fired furnace, model TUC120, with an output capacity of
120,000 BTU's per hour to be installed in the basement.
One Trane condensing unit, model TTB060, with a cooling capacity of
60,000 BTU's per hour and a cooling coil, model TXA060 to be installed
-
in the plenum of your furnace.
Two Honeywell thermostats, model T-8400 will be installed to give you
finger -tip control of the system
One Trion media air filter and sleeve will be installed in the return plenum
of your initiate,
One April Air hutrAdifier, model 760 will be installed.
Included is all necessary F,WC zoning equipment to zone the glassed
porch separate from the first floor.
2nd Floor System
One Trane gas-fired furnace, model TUC060, with an output capacity of
60,000 BTU's per hour to be installed in loft.
One Trane condensing unit, model TTB036, with a cooling capacity of
36,000 BTU's per hour, and a cooling coil, model TXCO42 to be installed
- in the plenum of your furnace.
One Honeywell thermostat, model T-8400 will be installed to give you
- finger -tip control of the system
One Trion media air filter and sleeve will be installed in the return plenum
of your furnace.
It would be advisable for you to have all the exposed duct work in
your loft wrapped with 6" insulation. This area may be within
several degrees of the outside temperature, which can cause moisture
to form on the ducts, As a result, this moisture then may run out or
run of the exposed ducts. We cannot assume any responsibility for
any problems caused by this moisture..: ......................................... S 23,846.00
Gas Propane Tank Allowance .................................................................... $ 2,000.00
Electric - 320 Amp Service, 350 Locations at $25.00 Each, 105 Fixture Hangings,
7 G.F.Ls, Inspections. -
Light Fixtures Allowance - which includes Fixtures, Recessed Lighting, Fans, Chimes,
-. .: `: Exterior Lights, Fan/Light Combos, and Bulbs ....................................... $ 10,000.00
7
Total Painting Allowance for New and Existing House - includes wall paper stripping,
Woodwork paint stripping, and exterior painting .....................................
AITFRlr)R TRIM S32,000.00
Casing: '/," x 3 '/+" Sanitary casing paint grade.
Base: ''/," x 5 %z' Sanitary Base paint grade.
Closet Allowance........ - ............................................................... S 3,500.00
Curved Maple Bench in Great Room Allowance ..................................... 5 1,500.00
Window Seat in Bedroom 4A203 Allowance ........................................ S 650.00
Bath Accessories Allowance - Mirrors ......................................................... $ 1,500.00
Floor Covering Allowance - Including All Ceramic Tile in all areas, Carpet, Vinyl, -
Hardwood & Finishing, Marble, Underlayment and Installation
and Sanding .41?u?z
,
of Existing floors .................................... ............ ........................ 540,000-00
Security - Sound - Specialty Wiring Allowance .............................................. S 5,000.00
Interior Door Locks - Plymouth Schlage, F-Series, #605 Finish.
House Cleaning before Moving Allowance ............... .. ........
...........................
F_V1 9 C TgDl14F S 2,000.00
Labor and Material for Renovators of Items Listed Below ate:
Cut Out Brick on Existing House to Connector to New House.
New Office Wall and #122 Double Door installed.
Two (2) Doors Library to be removed and walled in.
Remove existing stairs, install new stairs - rails (in Stair Allowance). Try to use
existing Stair Rail parts.
New Stairs in Existing House may not be in Compliance with New Building Codes.
Remove -wall -door Living Room to Hall, install Two (2) 4" Permacast Columns .
Three (3) window seats in Library (Delete).
Remove Gas stove and restore firebox and mantle. Not responsible for Relining
or Rebuilding New Chimney. You may have to Reflue inside of Chimney to
make it safe.
Cut opening in masonry wall Rear Exercise Room up to 4' Wide if Possible.
Build 2od floor subfloor to receive New Stairs. -
These items listed have an Allowance of ........................................... 5.15,000.00
Refinish Bath and Mud Room Floors are part of Flooring Allowance.
New Ceramic Floor in Kitchen are part of Flooring Allowance.
All Flooring and Finishing are part of Flooring Allowance.
New Kitchen Cabinets and Counter Tops are part of Kitchen Cabinets and
Appliances Allowance.
Book Shelves in Library are part of Kitchen Cabinets and Appliances Allowance.
Refinish and Paint Existing Cabinets also New Hardware are part of Kitchen
Cabinets and Appliances Allowance.
All New Wallpaper will be by Owner.
To Remove Door Hardware and Replace 1" and 2" floor door locks with New
Modem door locks. Will require additional Labor Cost to
Furnish, Install, Repair and Patch Existing holes in Doors and Trim Work.
Remove all existing wallpaper and refinish wag on la and 2°d floors to
accept new painting (in Painting Allowance).
Strip and refinish existing trim and windows (in Painting Allowance).
This Contract does not include installing Drywall or coating over any Existing walls
and Ceilings.
If Well is in location ofNew Building -No New Well in Contract.
PP&L Main Power Lines from Street to House may have to be relocated to build
New House. Contractor will coordinate work, but Costs will be by Owner.
Existing Windows (It may be Cost Effective to Replace Windows rather than repair
and repaint existing windows.
All Utility Expenses will be paid in their entirety by Owner.
8
ALLOWANCES:
Throughout these specifications, the owner will be confronted by the occasional utilization of allowances.
Allowances are utilized where practical, to allow the owner as much latitude as possible to design and firnish
then home to suit their individual tastes. The dollar figure represents an approximated price for which the
con ractor believes quality items may be purchased and installed, irobding sales tax.
It is understood that the owner atone is responsible for staying within his allocation for each item and that Die
exceeds the allowance, the additional cost will be paid to the contractor at the construction payment scheduled
i irtiediatety following completion of the rnentioned work.
OWNER POSSESSION AND SETTLEMENT:
It shall be understood that before the owner takes possession of the house, all outstanding invoices, change
orders and e.,== shall be paid in full and settlement made with Contractor. Contractor reserves right to
substitute material as to like quality.
Owner/
Co or
ORDER DOCUMENT
PROJECT: Robert V. Gothier, Jr. and Bonny L Gothier
99 Manor Drive
Dillsburg, PA 17019
CONTRACTOR: HARRY L. SMITH 8 SONS, INC.
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
WORK ORDER NUMBER: 1
DATE: September 11, 2002
ARCHITECTS PROJECT NO.:
CONTRACT DATE: May 30, 2002
CONTRACT FOR:$1,025,W0.00
THE CONTRACT IS CHANGED AS FOLLOWS:
to
15 hours .............
Put in ditch 100 LF of 4" PVC ............................................................................. $156.03
Pitt in ditch 200 LF of 1 1/2" PVC ........................................................................ $265.74
ZA amne un unv? ........................................ ,................. ........................... .v.,.?.a.?
90XT Skidicacer to vmrK On electnc line. ausi. Oraae tTenn ....................................... a I,WO.w
1. 111L V I\IV,I I,,--11. v. v. vv.......v ........................................................... ?.,
2. NET CHANGE BY PREVIOUSLY AUTHORIZED WORK ORDERS ......................... $0.00
3. THE CONTRACT SUM PRIOR TO THIS WORK ORDER WAS.............. ............... $1,025,000.00
4. THE CONTRACT SUM WILL BE INCREASED BY THIS WORK ORDER IN
THE AMOUNT OF ....................................................................................... $6,695.35
5. THE NEW CONTRACT SUM INCLUDING THIS WORK ORDER WILL BE .............. $1,031,695.35
THE CONTRACT TIME WILL BE EXTENDED BY FOUR WEEKS (28) DAYS.
THE DATE OF SUBSTANTIAL COMPLETION AS OF THE DATE OF THIS WORK ORDER
THEREFORE IS:
HARRY L. SMITH
CONTRACTOR
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
BY:
DATE:
BY:
DA"
ORDER DOCUMENT
PROJECT: Robert V. Gothier, Jr. and Sonny L. Gothier WORK ORDER NUMBER: 2
99 Manor Drive DATE: September 25, 2002
Dilisburg, PA 17019 ARCHITECTS PROJECT NO.:
CONTRACT DATE: May 30, 2002
CONTRACT FOR:$1,025,000.00
CONTRACTOR: HARRY L. SMITH & SONS, INC.
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
THE CONTRACT IS CHANGED AS FOLLOWS:
nIIU s Lauri !VI cjG "U w ................................................................................... 7 w.
Materials from Yale Electric ................................................................................ $1,369.08
lines are installed, labor to oracle dust ............................................................... $810.00
Homestead Excavating backfllling electric, spread dust after fine installed, 10 hours...... $600.00
Stone dust from Penney ..................................................................................... $663.27
1. THE ORIGINAL CONTRACT SUM WAS ............................................................0 i,utD,vvv.Uv
2. NET CHANGE BY PREVIOUSLY AUTHORIZED WORK ORDERS ......................... $6,695.35
3. THE CONTRACT SUM PRIOR TO THIS WORK ORDER WAS ............................. $1,031,695.35
4. THE CONTRACT SUM WILL BE INCREASED BY THIS WORK ORDER IN
THE AMOUNT OF ....................................................................................... $4,442.35
5. THE NEW CONTRACT SUM INCLUDING THIS WORK ORDER WILL BE............ $1,036,137.70
THE CONTRACT TIME WILL BE EXTENDED BY L_) DAYS.
THE DATE OF SUBSTANTIAL COMPLETION AS OF THE DATE OF THIS WORK ORDER
THEREFORE IS:
HARRY L. SMITH
CONTRACTOR
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
BY:
DA'
BY:
DATE:
ORDER DOCUMENT
PROJECT: Robert V. Gothier, Jr. and Bonny L. Gothier WORK ORDER NUMBER: 3
99 Manor Drive DATE: October 21, 2002
Dillsburg, PA 17019 ARCHITECTS PROJECT NO.:
CONTRACT DATE: May 30, 2002
CONTRACT FOR:$1,025,000.00
CONTRACTOR: HARRY L SMITH & SONS, INC.
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
THE CONTRACT IS CHANGED AS FOLLOWS:
Credit for installing Advantech subtlcoring ............................................................. 4449.10
NOl
1. THE ORIGINAL CONTRACT SUM WAS ........................................................... $1,025,000.00
2. NET CHANGE BY PREVIOUSLY AUTHORIZED WORK ORDERS ......................... $11,137.70
3. THE CONTRACT SUM PRIOR TO THIS WORK ORDER WAS ............................. $1,036,137.70
4. THE CONTRACT SUM WILL BE INCREASED BY THIS WORK ORDER IN
THE AMOUNT OF ....................................................................................... -$449.10
5. THE NEW CONTRACT SUM INCLUDING THIS WORK ORDER WILL BE............ $1,035,688.60
THE CONTRACT TIME WILL BE EXTENDED BY L-) DAYS.
THE DATE OF SUBSTANTIAL COMPLETION AS OF THE DATE OF THIS WORK ORDER
THEREFORE IS:
HARRY L. SMITH
CONTRACTOR
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
BY: BY:
DATE: DATE:
VVORK ORDER DOCUMENT
PROJECT: Robert V. Gothier, Jr. and Bonny L. Gothier WORK ORDER NUMBER: d
99 Manor Drive DATE: January 9, 2003
Dillsburg, PA 17019 ARCHITECTS PROJECT NO.,
CONTRACT DATE: May 30, 2002
CONTRACT FOR:$1,025,000.00
CONTRACTOR: HARRY L. SMITH & SONS, INC.
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
THE CONTRACT IS CHANGED AS FOLLOWS:
Arress dear from Plav room to Attic and build walkwav - and enclose oval window:
$1,772.27 ..........................---.......... ........ $1,772.27
$2,947.58........_ ................................................. $2,947.58
Pocket Door at Kitchen Area wW) 3'0" x 68" doors; now (2) 3'0" x 8'0" dM
.
$655.50 .......................................................... $655.50
water Goset room remove
rvizuenai gnu Lawr ............................................................... ........................ $280.00
1. THE ORIGINAL CONTRACT SUM WAS ........................................................... $1,025,000.00
2. NET CHANGE BY PREVIOUSLY AUTHORIZED WORK ORDERS. ... ......... ...$10,688.60
3. THE CONTRACT SUM PRIOR TO THIS WORK ORDER WAS ............................. $1,035;688.60
4. THE CONTRACT SUM WILL BE INCREASED BY THIS WORK ORDER IN
THE AMOUNT OF ................................. ..... ........... ....... -......... ............. ...... $8.824.68
5. THE NEW CONTRACT SUM INCLUDING THIS WORK ORDER WILL BE............ $1,044,51328
THE CONTRACT TIME WILL BE EXTENDED BY (_j DAYS.
THE DATE OF SUBSTANTIAL COMPLETION AS OF THE DATE OF THIS WORK ORDER ?
THEREFORE IS:
HARRY L. SMITH
CONTRACTOR
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
BY:
DA'
?? Lf lJ 1 ?4r??'
BY:
DATE:
fr'?
L
Labor to install Sauna vs. Labor and Material to install Steamer... No Charge .............. $0.00
ORDER DOCUMENT
PROJECT: Robert V. Gothier, Jr. and Bonny L. Gothier
99 Manor Drive
Dillsburg, PA 17019
CONTRACTOR: HARRY L. SMITH & SONS, INC.
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
WORK ORDER NUMBER: 5
DATE: February 26, 2003
ARCHITECTS PROJECT NO.:
CONTRACT DATE: May 30, 2002
CONTRACT FOR:$1,025,000.00
THE CONTRACT IS CHANGED AS FOLLOWS:
Cut out concrete
Pour Footers
1. THE ORIGINAL CONTRACT SUM WAS ............................................................. $1,025,000.00
2. NET CHANGE BY PREVIOUSLY AUTHORIZED WORK ORDERS .......................... $19,513.26
3. THE CONTRACT SUM PRIOR TO THIS WORK ORDER WAS ............................... $1,044,513.28
4. THE CONTRACT SUM WILL BE INCREASED BY THIS WORK ORDER IN
THE AMOUNT OF ............. ............................................................... ............ $10.014.20
5. THE NEW CONTRACT SUM INCLUDING THIS WORK ORDER WILL BE............ $1,054,527.48
THE CONTRACT TIME WILL BE EXTENDED BY
C_) DAYS.
THE DATE OF SUBSTANTIAL COMPLETION AS OF THE DATE OF THIS WORK ORDER
THEREFORE IS:
HARRY L. SMITH
CONTRACTOR
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
BY: BY:
JYORK ORDER DOCUMENT
PROJECT: Robert V. Gothier, Jr. and Bonny L. Gothier
99 Manor Drive
Dillsburg, PA 17019
CONTRACTOR: HARRY L. SMITH & SONS, INC.
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
WORK ORDER NUMBER: 6
DATE: April 22, 2003
ARCHITECTS PROJECT NO.:
CONTRACT DATE: May 30, 2002
CONTRACT FOR:$1,025,000.00
THE CONTRACT IS CHANGED AS FOLLOWS:
NOT VALID UNTIL SIGNED BY OWNER AND CONTRACTOR
6 GFI Circuits (d). $45.00---- ............................ $360.00
r 1 ' 1. THE ORIGINAL CONTRACT UM WAS ........................................... $1,025,000.00
2. NET CHANGE BY PREVIO AUTHORIZED WORK ORDERS....... $29,527.48
3. THE CONTRACT SUM PRIG TO THIS WORK ORDER WAS ................................. $1,054,52748
4. THE CONTRACT SUM WILL BE INCREASED BY THIS WORK ORDER IN
THE AMOUNT OF... ..................... .................................. ..................... ........ $12,911.63
5. THE NEW CONTRACT SUM INCLUDING THIS WORK ORDER WILL BE............ $1,067,439.11
THE CONTRACT TIME WILL BE EXTENDED BY TWO WEEKS (14) DAYS.
THE DATE OF SUBSTANTIAL COMPLETION AS OF THE DATE OF THIS WORK ORDER
THEREFORE IS:
HARRY L. SMITH
CONTRACTOR
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
BY: BY:
DATE: DA
&ORK ORDER DOCUMENT
PROJECT: Robert V. Gothier, Jr. and Bonny L. Gothier
99 Manor Drive
Dillsburg, PA 17019
CONTRACTOR: HARRY L SMITH & SONS, INC.
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
WORK ORDER NUMBER: 7
DATE: May 6. 2003
ARCHITECTS PROJECT NO.:
CONTRACT DATE: May 30, 2002
CONTRACT FOR11,025,000.00
THE CONTRACT IS CHANGED AS FOLLOWS:
to
Durango Levers on the First Floor and Dark Bronze Patina Winchester Knobs on 5econo
Patina Hinnas This quote does not include the replacement of knobs or hinges of
axistinn Lincoln Glass Doors ......................... ........................................_............... $3,093.00
NOT VALID UNTIL SIGNED BY OWNER AND CONTRACTOR
1. THE ORIGINAL CONTRACT SUM WAS......... .............. 51,025,000.00
2. NET CHANGE BY PREVIOUSLY AUTHORIZED WORK ORDERS ............................ $42,439.11
... $1,067,439.11
3. THE CONTRACT SUM PRIOR TO THIS WORK ORDER WAS... --- ........ ..... ...
4. THE CONTRACT SUM WILL BE INCREASED BY THIS WORK ORDER IN
THE AMOUNT OF .......................................................................................... $3,093.00
5. THE NEW CONTRACT SUM INCLUDING THIS WORK ORDER WILL BE........ _.. $1,070,532.11
THE CONTRACT TIME WILL BE EXTENDED BY TWO WEEKS (14) DAYS.
THE DATE OF SUBSTANTIAL COMPLETION AS OF THE DATE OF THIS WORK ORDER
THEREFORE IS:
HARRY L. SMITH
CONTRACTOR
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
BY BY:
DATE: DA
ORDER DOCUMENT
PROJECT: Robert V. Gothier, Jr. and Bonny L. Gothier
99 Manor Drive
Dillsburg, PA 17019
CONTRACTOR: HARRY L. SMITH & SONS, INC.
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
WORK ORDER NUMBER: 8
DATE: May 6, 2003
ARCHITECTS PROJECT NO.:
CONTRACT DATE: May 30, 2002
CONTRACT FOR:$1,025,000.00
THE CONTRACT IS CHANGED AS FOLLOWS:
--
Upgrade the Master e rcom Double Doors from Solid Double Doors 5'0" x 68" to
True Style Custom V Grade 60" x TO ...................................................................... $400.00
1. 1 rlt UYUbINAL I UIN I FCHL I JUM VVAS .... .......................................................... $1,025,000.00
2. NET CHANGE BY PREVIOUSLY AUTHORIZED WORK ORDERS ............................ $45,532.11
3. THE CONTRACT SUM PRIOR TO THIS WORK ORDER WAS ...................... ....... ... $1,070,532.11
4. THE CONTRACT SUM WILL BE INCREASED BY THIS WORK ORDER IN
THE AMOUNT OF .......................................................................................... $400.00
5. THE NEW CONTRACT SUM INCLUDING THIS WORK ORDER WILL BE............ $1,070,932.11
THE CONTRACT TIME WILL BE EXTENDED BY TWO WEEKS (14) DAYS.
THE DATE OF SUBSTANTIAL COMPLETION AS OF THE DATE OF THIS WORK ORDER
THEREFORE IS:
HARRY L. SMITH
CONTRACTOR
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
BY: BY.
DATE: DA-
ORDER DOCUMENT
PROJECT: Robert V. Gothier, Jr. and Bonny L. Gothier
99 Manor Drive
Dillsburg, PA 17019
CONTRACTOR: HARRY L SMITH & SONS, INC.
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
WORK ORDER NUMBER: 9
DATE: June 6, 2003
ARCHITECTS PROJECT NO.:
CONTRACT DATE: May 30, 2002
CONTRACT FOR:$1,025,000.00
1. THE ORIGINAL CONTRACT SUM WAS ............................................................... ?51,uzb,uuu.uu
2. NET CHANGE BY PREVIOUSLY AUTHORIZED WORK ORDERS ............................ $45,932.11
3. THE CONTRACT SUM PRIOR TO THIS WORK ORDER WAS ................................. $1,070,932.11
4. THE CONTRACT SUM WILL BE INCREASED BY THIS WORK ORDER IN
THE AMOUNT OF .......................................................................................... $2,484.00
5. THE NEW CONTRACT SUM INCLUDING THIS WORK ORDER WILL BE............ $1,073,416.11
THE CONTRACT TIME WILL BE EXTENDED BY TWO WEEKS (14) DAYS.
THE DATE OF SUBSTANTIAL COMPLETION AS OF THE DATE OF THIS WORK ORDER
THEREFORE IS:
HARRY L. SMITH
CONTRACTOR
5943 DEVONSHIRE
I-iARRISSURG, PA
HEIGHTS ROAD
17112
BY: BY:
THE CONTRACT IS CHANGED AS FOLLOWS:
ORDER DOCUMENT
PROJECT: Robert V. Gothier, Jr. and Bonny L. Gothier
99 Manor Drive
Dillsburg, PA 17019
CONTRACTOR: HARRY L. SMITH & SONS, INC.
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
WORK ORDER NUMBER: 10
DATE: June 9, 2003
ARCHITECTS PROJECT NO.:
CONTRACT DATE: May 30, 2002
CONTRACT FOR:$1,025,000.00
THE CONTRACT IS CHANGED AS FOLLOWS:
15%.......... $ 158.73
$1,216.93 $1,216.93
1. THE ORIGINAL CONTRACT SUM WAS ....... .............. ................._......._................ $1,025,000.00
2. NET CHANGE BY PREVIOUSLY AUTHORIZED WORK ORDERS... ...... .................... $48,416.11
3. THE CONTRACT SUM PRIOR TO THIS WORK ORDER WAS ................... ......... $1,073,416.11
4. THE CONTRACT SUM WILL BE INCREASED BY THIS WORK ORDER IN
THE AMOUNT OF ............................................................................................ $1,216.93
5. THE NEW CONTRACT SUM INCLUDING THIS WORK ORDER WILL BE............ $1,074,633.04
THE CONTRACT TIME WILL BE EXTENDED BY TWO WEEKS (14) DAYS.
THE DATE OF SUBSTANTIAL COMPLETION AS OF THE DATE OF THIS WORK ORDER
THEREFORE IS:
HARRY L. SMITH
CONTRACTOR
5943 DEVONSHIRE HEIGHTS ROAD
HARRISBURG, PA 17112
BY:
DATE:
BY:
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UO of Equipment at the Gothier Job
Descri tion Price
per piece
Total
luminum Pole Jacks 331.10 662.20
luminum Pole Jacks 176.00 704.00
inum Pole Extensions 71.50 143.00
110.00 440.00
Braces 49.50 198.00
lank 430.10 430.10
fete sets of metal Scaffolds 123.20 492.80
old brace - orie r set
1 18.81 75.24
Safe Rail Brackets 350.00
Nails 300.00
20 Jacks
Roof 35.19 703.78
llaneous Tools and Su lies 1,500.00
l• Ban 88.00 176.00
5,175.12
EXHIBIT "B"
RRY I
L. SMT & SONS, INC. BEFORE A PANEL OF a FBITR LTORS
Claimant
V.
ROBERT' V. GOTHEER, JR. and
BONNY L. GO=R
Respondents
RESPONDENTS' ANSWER TO STATEMENT OF CLALM AND
COUNTERCLALM
AND NOW comes Respondents, Robert V. Gothier, Jr. and Bonny L. Gothier, by
and through their counsel, Law Offices Stephen C. Nudel, PC, averring as follows:
Admitted.
2. Admitted.
3. Admitted in part, Denied in part. It is admitted that the parties entered into
a construction agreement (Claimant's Exhibit "A") on or about May 30,
2002 ("Agreement"). The Agreement is a document that speaks for itself,
therefore any characterizations of it are Denied.
4. Admitted in part, Denied in part. It is admitted that the Respondents
requested work necessitating the preparation of separate work. The work
orders are documents that speak for themselves, therefore any
characterization of them is Denied. By way of further answer, the work
orders do not necessarily represent the agreement of the parties. The work
orders attached at E:diibit "B" are all unsigned. With respect to work
orders nine and ten, Respondents never received these work orders, never
authorized the work therein and do not owe Claimant for these work
orders. Respondents incorporate the allegations in their counterclaims into
this paragraph. All remaining allegations are Denied. Change orders one
and six through 10 provide for a total of 98 additional days which was
never agreed to by Respondents, and which would not accurately reflect
time required to complete the change orders.
5. Denied. By way of frther answer, Claimant was provided a notice of
default on May 9, 2003. Claimant took no action to correct the default
causing Respondents to terminate the contract on July 3, 2003 and find
substitute contractors to finish performance of the Agreement. True and
correct copies of the Letters sent to Claimant are attached as Exhibit "F"'
By way of further answer, the ultimate termination of the Agreement was
consentual.
6. Denied. Claimant was paid for all work it performed. Respondents
rightfully terminated the Agreement. Respondents incorporate the
allegations in this counterclaim into this paragraph. In addition, this
paragraph contains a conclusion of law, to which no response is required.
To the extent a response is required, the paragraph is Denied. By way of
further answer, Claimant's Exhibit C does not accurately reflect a
summary of the costs of the project. With respect to Exhibit C, Claimant
and Respondents agr. ee that Claimant is not owed any money from Draws
one, Dvo, three and four. Claimant and Respondents also agree chat
Claimant performed no work with respect to draw seven and that Claimant
Resaondenrs will continue =he labels used or he exhibits by Cia=ants to =rl; ;xa con_fusiou. Because
C'.a== aCached E°,tiibirs .k-E :0 -,Is comDiast. Respondenrs ??ll star. ?Hnr e7,hfhirs wirh Exhibn F.
2
is not owed any money for draw seven. However, with respect to draws
one, two and four, Respondents incurred additional expenses to complete
or repair the work done'oy Claimant. With respect to draw five, Claimant
has a balance because it was not paying its subcontractors and the work
was incomplete and Respondents incurred additional expenses to complete
the work under draw five. W`rh respect to draw six, Claimant has a
balance because it was not paying it subcontractors and the work was
incomplete and Respondents incurred additional expenses to complete the
work under draw six. As a result of the Claimant's breach of the
Agreement, Respondent was required to pay a subcontractor directly under
draw six in order to facilitate the project. With respect to draw eight,
Claimant performed no work under this draw and Respondents incurred
additional expenses to complete the work. With respect to draw nine,
Claimant did not complete the work under this draw and Respondents
incurred additional expenses to complete the work. With respect to draw
ten, Claimant performed no work under this draw and Respondents
incu-.ed additional expenses to complete the work. With respect to draw
eleven, Claimant did not achieve substantial completion of the project as
defined under the Agreement, and accordingly, Claimant is not entitled to
any money from this draw. With respect to the claim for substantial
completion o_f wor'on the existing house, Claimant did not complete the
work on the exisring house and Respondents incurred additional expenses
in completing the work. Respondents' Exhibit "G" accurately re lects a
3
V, V
-nancial summary of the amount paid to Claimant and additional amounts
scent by Respondents.
7. Admitted in part, Denied in parr.. The Claimant's Exhibit "D" does
accurately reflect the amount and payments made on work orders one
through eight. With respect to work orders nine and ten, Exhibit "D" does
not accurately reflect what is owed. The response to paragraph 4 is
incorporated herein.
8. Denied. Proof of any amount owing is demanded at hearing. Ir. fact,
Claimant owes Respondents $118,706.58, plus costs and attomey fees as
provided in the Agreement.
9. It is admitted that Respondents have refused to pay Claimant any further
amount, because Claimant was paid for all work it performed under the
Agreement.
10. Denied. On or about July 3, 2003, by agreement of the parties,
Respondents allowed vlr. Smith and his son to take their equipment off
the project site. Respondents do not possess any of the equipment listed
on Claimant's Exhibit E. and are unaware of the whereabouts of the
equipment listed in Exhibit E. Proof of the value of the equipment is
demanded at hearing. Byway of further answer, the Agreement, in
section 202, allows Respondents to retain equipment and materials in the
event of a default by the Claimant.
Counterclaim of Respondents
11_. During the spring of 2003, it was reported o Respondents that Claimant,
despite'oeing paid by Respondents, was act paying the subcontractors
performing the work under the Agreement.
12. Claimant was submitting requests for draws under the Agreement for work
that was not performed.
13. Claimant was not completing construction on the project in a timely
manner as outlined in the Agreement. The Agreement provides that
completion must occur within one year.
14. At that time, the HVAC and drywall contractor had not been paid by
Claimant, despite Claimant billing for and Respondents paying Claimant
for their respective work.
15. The-HVAC contractor refused to perform any further work until payment
was made by Claimant.
16. The masonry subcontractor refused to perform any work on Respondents'
project as a result of unpaid invoices by Claimant on this project and other
projects with the Claimant.
17. On May 9, 2003, Claimant was given notice of default for failure to pay
the subcontractors. See Exhibit 'T'
18. Around this time, the electrical and plumbing subcontractors/employees of
Claimant informed the Respondents that they quit performing work on [he
proiect because of a lack of payment by Claimant.
5
? ,J? y
19 Based on information and belief, Claimant encouraged the masonry
subcontractor to overbill Respondents the amount Claimant owed the
masonry subcontractor on otherjobs.
20. Based upon information and belief, many suppliers.were unwilling to
supply Claimant with materials for this project due, in part, to his lack of
payment.
21. Having failed to cure the default, Respondents terminated the Agreement
on July'), 2003. See Exhibit F°.
22. - After a meeting between the parties, Claimant and Respondent agreed that
the termination would be consentual.
23. The Agreement provides that Claimant is liable to Respondents for costs
to complete the Agreement in excess of the stated amount.
24. Respondents incurred substantial expenses in engaging substitute
contractors to finish the work not performed by Claimant under the
Agreement, in paying subcontractors that were not paid by Claimant, and
in repairing defective or incomplete work of Claimant. Attached hereto
and incorporated herein as Exhibit "0" is a summary of the payments
made to Claimant and the payments made to substitute contractors to
complete the work contemplated by the Agreement.
25. As a result of the defaults and delays of the Claimant, Respondent Robert
God-der had to expend an enormous amount of time coordinating and
facilitating the project.
6
T *' •
26. Due to Respondent Robert Gotbier's professional experience, he was able
to perform the function of managing the project himself rather than hire a
substitute to perform this function.
27. From on or about Vtay 2003, Respondent spent an enormous amount of
time and resources to further the completion or the project that would not
have othe-Rise been aecessarv but for Claimant's default. Robert V.
Gothier continues to spend management time for the project.
23. Respondent Robert Gothier was able to act in this capacity due to his
professional experience. Were he not able to do so, Respondents would
have needed to hire a general contractor to oversee the project after
Claimant defaulted and the subsequent termination of the Agreement.
29. As a result, Respondent is entitled to be awarded the $30,750 for
substantial completion as damages for the time and resources he expended
to manage and complete the project.
30. Allowing Claimant a credit for substantial completion would be a windfall
for Claimant because Respondent had the necessary expertise to act in his
own 'oehalf with respect to completing the project. Granting Claimant a
credit for substantial completion would be an unjust result.
31. Tile Respondents incurred °;117,956.58 or costs/damages over and above
the contracted price to secure substitute performance, which amount is
subject to further verification by Respondents.
32. The Agreement urovides for he award of costs and attorneys fees to the
prevailing party.
s r, s .
33. Several items of work performed by Claimant needed to be replaced or
redone at the expense of Respondents.
34. Claimant's work was incomplete or defective in several areas causing
damage to Respondents.
35. A sink and two spigots in the garage require installation.
36. The floors of the basement and garage evert- installed and subsequently
repaired incorrectly and require replacement at a cost to the Respondents.
37. The wiring in the kitchen is not installed in accordance with the applicable
code and requires additional expense to r,-;,oair.
WHEREFORE, Respondents request that the Claimants prayer for relief be Denied and
Judgment be found in favor of Respondents in the amount of $113,706.58, plus costs of
attomeys fees, interest and costs to correct ongoing deficiencies.
Respectf?illy submitted,
LAW OFFICES STEPHEN C. N=L, PC
Date: January 24, 2005
3
PA iD No. 41 /O3
219 Pine Street
Harrisburg; PA 17101
(717) 236-5000
Counsel JO Respondents
f. 4- x
HARRY L. SMITH & SONS, INC
Petitioner,
V.
ROBERT V. GOTHIER, JR. and
BONNY L. GOTHIER,
Respondents
. IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 03-6494
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, at
Harrisburg, Pennsylvania, as follows:
Roger R. Laguna, Jr., Esquire
Laguna Reyes Maloney, LLP
1119 North Front Street
Harrisburg, PA 17102
Date: S-j
Attorney ID #80142
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorney for Respondents
HARRY L. SMITH & SONS, INC.
Plaintiff,
V.
ROBERT V. GOTHIER, JR. and
BONNY L. GOTHIER,
Defendants
IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
NO. 1230 CV 2006 MP
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, at Harrisburg, Pennsylvania, as follows:
Roger R. Laguna, Jr., Esquire
Laguna Reyes Maloney, LLP
1119 North Front Street
Harrisburg, PA 17102
Date: ;I,6-4
Andrew T. Kravitz, Esquire
Attorney ID 480142
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorney for Defendants
viAGFD,
IN THE COURT OF COMMON PLEAS FOR DAUPHIN COUNTY, PENNSYLVANIA
G & C ASSOCIATES, LLC,
2933 N. Front Street
Harrisburg, PA 17110
PLAINTIFF
CIVIL ACTION - LAW
CJ
NO.: 2006 ITT 1203 DJ
VS.
CLARISSA TAYLOR
420 Harris Street
Harrisburg, PA 17102
DEFENDANT
r N
j c:_
TO: G & C Associates, LLC: o
You are hereby notified to file a written response to the enclosed Counterclaim within`lY
twenty(20) days from service hereof or a judgment may be entered against you.
ANSWER TO COMPLAINT AND COUNTERCLAIM
AND NOW comes Clarissa Taylor, by and through her attorney, James W. Harris,
Esquire and states the following:
1. Admitted to the extent that it alleges such.
2. Admitted.
3. Denied.
4. Admitted.
5. No answer is required as the Plaintiff did not allege anything.
6. Admitted.
7. Admitted.
8. Denied.
9. It is denied that Defendant owes any amount to the Plaintiff.
10. See Answer #9 above.
11. Denied. It is alleged and asserted that Defendant could not owe this amount.
12. Admitted but Defendant is not liable for utility incurred before she took
possession of the premises.
13. See Answer #12 above.
14. Admitted.
15. See Answer 412 above.
16. Denied. Defendant has refused to pay that portion of the bill, which she did
not use.
17. Denied. It is alleged and asserted that Plaintiff did not render any services to
the Defendant.
COUNT 2: BREACH OF IMPLIED CONTRACT
18. No answer is required.
19. Admitted.
20. Admitted to the extent she would pay for services used.
21. See Answer #16 above.
22. Denied. See Answer #16 above.
23. Denied. See Answer #16 above.
24. Denied. See Answer #16 above.
COUNT 3: OUANTUM MERUIT
25. No answer is required.
26. Denied. It is alleged that defendant did not breach the lease.
27. See Answer #16 above and #26.
28. Denied. See Answer #26 above.
29. See Answer #26 above.
30. See Answer #26 above.
31. Denied. See Answer #16 above.
WHEREFORE, Defendant demands judgment in her favor including costs.
COUNTERCLAIM: DEFENDANT vs. PLAINTIFF
32. Plaintiff incorporates her above answers set forth at length herein.
33. Plaintiff Clarissa Taylor (Thereafter "Plaintiff") resides at 420 Harris Street,
Harrisburg, PA 17102.
34. G & C Associates, LLC (Hereafter "Defendant") is a Pennsylvania limited
Liability Company with its registered office located at 2933 North Front Street, Harrisburg,
PA 17110.
35. The dwelling is located in Dauphin County, Pennsylvania.
36. On or about November 1, 2005, Plaintiff rented a dwelling located at 1932
Susquehanna Street, Harrisburg, PA at a rate of five hundred fifty ($550.00) dollars per
month.
37. The Defendant represented that the dwelling was habitable, safe and in good
condition.
38. This representation was fraudulent and designed to mislead the Plaintiff.
39. In January 2006, Plaintiff was descending the stair steps inside the dwelling
when one of the steps gave way causing her to fall breaking her right leg.
40. The aforesaid accident was caused by the negligence, carelessness and/or
recklessness of Defendant, acting individually and/or by and through their agents (ostensible,
apparent and/or actual), servants, workmen and/or employees and consisting, inter alia, of the
following:
(a) carelessly and negligently allowing and permitting a defect to exist in
said dwelling;
(b) carelessly and negligently allowing and permitting the existence of the
dangerous and/or defective stair steps;
(c) carelessly and negligently allowing and permitting said steps to exist in
state of disrepair;
(d) negligently creating a defect on said steps;
(e) negligently creating a dangerous and/or defective condition or
conditions on said steps;
(f) failing to maintain said steps in a safe and proper condition;
(g) failing to maintain said steps so as to allow the dangerous and/or
defective condition of same;
(h) failing to regularly inspect said steps so as to insure they were in a
proper and safe condition;
(i) failing to warn and/or notify Plaintiff of the existence of a defect on
said steps;
(j) failing to warn and/or notify Plaintiff of the degree of disrepair of said
steps;
(k) failing to warn and/or notify Plaintiff of the degree of disrepair of said
steps;
(1) failing to remedy the defect on said steps;
(m) failing to remedy the dangerous and/or defective steps;
(n) failing to remedy the disrepair of said steps;
(o) failing to provide safe stair steps for her to travel in the dwelling;
(p) negligently creating the dangerous condition inside the dwelling;
(q) negligently creating the dangerous condition of the stairway in the
dwelling;
(r) violating the ordinances of the City of Harrisburg and the statutes of the
Commonwealth of Pennsylvania; and
(s) otherwise failing to exercise due care under the circumstances as pled
above.
41. As a result of Defendant's negligence as aforesaid, Plaintiff sustained a
fracture and dislocation of her right foot, which condition is of a permanent nature. Plaintiff
also makes a claim herein for such injuries, conditions and consequences of which she has no
present knowledge.
42. As a further result of this accident and by reason of the injuries sustained,
Plaintiff has in the past been obliged to receive and undergo medical attention and care and to
expend various sums of money and/or to incur various expenses for the injury she has
suffered, and she may in the future continue to be obliged to expend such sums or to incur
such excess of $1,500.00.
43. As a further result of this accident and by reason of the injuries sustained,
Plaintiff has sustained an impairment of her earning capacity and power.
44. As a further result of this accident and by reason of the injuries sustained,
Plaintiff has in the past incurred and may in the future continue to incur other financial
expenses or losses.
45. As a further result of this accident and by reason of the injuries sustained,
Plaintiff has in the past suffered and may in the future continue to suffer great pain, agony,
mental anguish, embarrassment and humiliation, and has in the past been hindered and may in
the future continue to be hindered from attending to her daily duties, functions and
occupation, to her great detriment and loss.
WHEREFORE, Plaintiff demands judgment against the named Defendant,
individually, jointly and/or severally, in a sum in excess of Fifty Thousand ($50,000.00)
Dollars.
Res ly sub FSAW
By:
James W. Harris, Esquire
Attorney for the Plaintiff
48 East Princess Street
York, Pennsylvania 17403
(717) 845-3505
I.D. #10373
VERIFICATION
I verify that the statements made in this ANSWER TO COMPLAINT AND
COUNTERCLAIM are true and correct. I understand that false statements herein are made
subject to the penalties of 18 Pa. C.S. section 4904 relating to unsworn falsification to
authorities.
•
Date:
James W. Harris, Esquire
Attorney for the Defendant
48 East Princess Street
York, Pennsylvania 17403
(717) 845-3505
I.D.#10373
CERTIFICATE OF SERVICE
AND NOW, this day of 2005, I, James W. Harris,
W 4W
Esquire, hereby certify that a true and correct copy of the foregoing ANSWER TO
COMPLAINT AND COUNTERCLAIM was served on Michael B. Volk, Esquire by United
States Mail, first class, postage prepaid, addressed as follows:
Michael B. Volk, Esquire
Capozzi & Associates, P.C.
2933 North Front Street
Harrisburg, Pennsylvania 17110
By. •
James W. Harris, Esquire
Attorney for the Defendant
48 East Princess Street
York, Pennsylvania 17403
(717) 845-3505
I.D. #10373
Curtis R. Long
Prothonotary
Office of the Protbonotarp
Cumberranb Countp
Renee K. Simpson
Deputy Prothonotary
John E. Slike
Solicitor
nL -*-) L9(5 CVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 28TH DAY OF OCTOBER, 2009, AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA
R C P 230.2.
BY THE COURT,
CURTIS R. LONG
PROTHONOTARY
One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573