HomeMy WebLinkAbout06-3245BERNARD V. KELLY, JR., and : IN THE COURT OF COMMON PLEAS OF
MICHELE A. KELLY, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION - LAW
HOME DESIGNS UNLIMITED, INC., DOCKET NO.
Defendant O` _ 3214S
N O T I C E
You have been sued in court. If you wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by
attorney and filing in writing with the court your defenses or
objections to the claims set forth against you. You are warned
that if you fail to do so the case may proceed without you and a
judgment may be entered against you by the court without further
notice for any money claimed in the complaint or for any other
claim or relief requested by the plaintiff. You may lose money
or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Lawyer Referral Service
Cumberland County
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, Pennsylvania 17013
(800) 990-9108
By:
Jam s D. Bog r Esquire
Pa. I.D. No. 475
By; y ? ou Je r B. Hipp, Esquire
Pa. I D. No. 86556
One West Main Street
Shiremanstown, PA 17011
(717) 737-8761
Attorneys for Plaintiffs,
Bernard V. Kelly, Jr. and
Michele A. Kelly
BERNARD V. KELLY, JR., and : IN THE COURT OF COMMON PLEAS OF
MICHELE A. KELLY, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION - LAW /}%J ?'-
HOME DESIGNS UNLIMITED, LLC, DOCKET NO. 01, 3?7 S (2"'// . TG2-/rj
Defendant
COMPLAINT
Bernard V. Kelly, Jr., and Michele A. Kelly, Plaintiffs, by
and through their attorneys, Jennifer B. Hipp, Esquire, and James
D. Bogar, Esquire, respectfully represent as follows:
1. Plaintiffs herein are Bernard V. Kelly, Jr., and Michele
A. Kelly, husband and wife, with an address of 5730 Aspen Lane,
Enola, Pennsylvania 17025.
2. Defendant herein is Home Designs Unlimited, LLC, a
limited liability company organized and existing under the laws
of the Commonwealth of Pennsylvania, having its principal office
at 199 Beagle Club Road, Carlisle, Pennsylvania 17013 and a
mailing address of P.O. Box 387, New Kingston, Pennsylvania
17072.
3. Plaintiffs and Defendant entered into a written
contract, dated January 13, 2003, for the construction of a
residential property. A copy of the Residential Construction
Contract is attached hereto, marked as Exhibit "A" and
incorporated herein.
4. Paragraph No. 8 of the Residential Construction Contract
specifies that Defendant "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 completion of the contract." See Exhibit "A", Paragraph
No. 8.
5. During the progress of construction of their home at
5730 Aspen Lane, Enola, Pennsylvania, Plaintiffs discovered
several areas of Defendant's work that failed to conform to the
requirements of the contract documents.
6. Plaintiffs contacted Defendant on multiple occasions to
advise Defendant of the non-conforming work.
7. Defendants either ignored Plaintiffs' requests for
remedy of the defective and substandard work and/or promised to
remedy the defective work but failed to adequately do so.
8. Plaintiffs sent to Defendant by facsimile on August 30,
2004, September 16, 2004 and November 5, 2004 a "follow-up list"
setting forth the outstanding items and work that failed to
conform to the requirements of the contract documents. A copy of
the follow-up list is attached hereto and incorporated herein as
Exhibit "B".
9. Defendant advised Plaintiffs that it would address all
of the items on the Plaintiffs' follow-up list.
10. Defendant failed to adequately follow-up and correct
the faulty items or to follow-up at all.
11. Of the items listed on the follow-up list, only the
serious storm water drainage problems persist.
12. Plaintiffs hired the engineering firm Gannett Fleming,
Inc., to review their storm water drainage concerns.
13. Gannett Fleming, Inc., issued a report identifying the
causes of the storm water drainage problems and recommending a
course of action for remediation. A copy of the Gannett Fleming,
Inc. report is attached hereto and incorporated herein as Exhibit
.,C„
14. On or about February 17, 2006, Plaintiffs provided a
copy of the Gannett Fleming report (See Exhibit "C") to
Defendant.
15. Defendant has failed to respond to Plaintiffs regarding
the Gannett Fleming report or to take any of the remedial action
as set forth in the report.
16. The cost to remediate the stormwater damage issues
pursuant to the Gannett Fleming, Inc. report (See Exhibit "C")
would be in the amount of nine thousand dollars ($9,000.00).
17. Plaintiffs have fully complied with all the terms of
the Residential Construction Contract.
18. Plaintiffs have paid, in full, Defendant pursuant to
the terms and conditions of the Residential Construction
Contract.
19. Despite Plaintiffs' repeated demands, Defendant has
failed and refused to respond to Plaintiffs' request for
completion of the contractually obligated items.
COUNT I - BREACH OF CONTRACT
20. The averments of Paragraphs 1 through and including 19
hereinabove are incorporated herein by reference thereto.
21. By virtue of the contract between Plaintiffs and
Defendant, Defendant agreed to perform, in full, all of the items
as set forth in the Residential Construction Contract. See
Exhibit "A"
22. Defendant has failed to fully perform its obligations
as set forth in the Residential Construction Contract.
23. To date, Defendant, despite proper requests and demands
by the Plaintiffs, has failed to fully comply with the terms of
the Residential Construction Contract.
WHEREFORE, Plaintiffs demand judgment against Defendant,
Home Designs Unlimited, LLC, in the amount of nine thousand
dollars ($9,000.00), plus interest, together with the costs of
this action, attorney's fees, engineering fees and any other
relief deemed just and appropriate.
COUNT II - QUANTUM MERUIT/IMPLIED CONTRACT
24. The averments of Paragraphs 1 through and including 23
hereinabove are incorporated herein by reference thereto.
25. Pursuant to the terms and conditions of the Residential
Construction Contract, Plaintiffs fully remitted payment to Home
Designs Unlimited, LLC.
26. Pursuant to the terms of the Residential Construction
Contract, Defendant is obligated to complete all of the items
related to the construction of the Plaintiffs' residential home
at 5730 Aspen Lane, Enola, Pennsylvania in a workmen-like manner.
27. To date, Defendant, despite proper requests and demands
by Plaintiffs, has failed to honor the terms and conditions of
the Residential Construction Contract.
28. By reason of Defendant's request for payment by
Plaintiffs, Defendant impliedly agreed to fully and adequately
perform pursuant to the terms and conditions of the Residential
Construction Contract.
WHEREFORE, Plaintiffs demand judgment against Defendant,
Home Designs Unlimited, LLC, in the amount of nine thousand
dollars ($9,000.00), plus interest, together with the costs of
this action, attorney's fees, engineering fees and any other
relief deemed just and appropriate.
COUNT III - UNJUST ENRICHMENT
29. The averments of Paragraphs 1 through and including 28
hereinabove are incorporated herein by reference thereto.
30. Defendant obtained payment from Plaintiffs in the full
amount as set forth in the Residential Construction Contract.
See Exhibit "A"
31. As a direct and proximate result of Defendant's refusal
to perform pursuant to the terms and conditions of the
Residential Construction Contract, Defendant has been unjustly
enriched in the amount of nine thousand dollars ($9,000.00).
, Plaintiffs demand judgment against Defendant,
Home Designs Unlimited, LLC, in the amount of nine thousand
dollars ($9,000.00), plus interest, together with the costs of
this action, attorney's fees, engineering fees and any other
relief deemed just and appropriate.
Date: June 7, 2006 f
e fifer B. Hipp, Esquire
Pa. I.D. No. 86556
Ja s D. Boga Esquire
Pa. I.D. No. 475
One West Main Street
Shiremanstown, PA 17011
(717) 737-8761
Attorneys for Plaintiffs,
Bernard V. Kelly, Jr. and
Michele A. Kelly
Residential Construction Contract
EXHIBIT
A-
AGREEMENT made the \3?day of a 20 o3 by and between Home Designs
Unlimited (hereinafter referred to as "Contractor') and '?'err y i
of
(hereinafter referred to as "Buyer")
\_1056
WITNESSETH that in consideration of the mutual covenants and agreements herein contained, and in
intending to be legally bound hereby, the parties hereto do agree to. the following terms and conditions:
1. De ' 'ons The following terms shall have the assigned meanings for the purposes of this
agreement:
1.i. Contract Documents. The contract documents consist of this agreement (including specific
and general conditions hereto), and drawings, specifications, plans, amendments and change
orders relating to this agreement. These aforesaid documents constitute the entire contract
between the parties, and shall not be modified except by written amendment to the said
contract documents. The contract documents do not inclnde and specifically exclude any and
all oral discussions, understandings, and agreements between the said parties prior to the
execution of this agreement. See Exhibit A&B
1.2. Allowances. An allowance, as used in this agreement, means the Contractor's good faith
estimate of the cost to.provide the work, supply, material or technical advice necessary -to
complete the portion of the project identified, which may be adjusted up or down when actual
costs have been calculated.
2. Contract Work.
construction of a
Contractor agrees to furnish all material and labor.necessary for the
. In consideration for
Contractor the sum of
in
accordance with paragraph (5) herein below, and subject to additions and/or deductions for other
payments in accordance with paragraph (6) herein below and by change order as provided in
subparagraph (5.3) of this contract.
THE ABOVE STATED CONTRACT IS BINDING UPON CONTRACTOR ONLY IF THE
CONTRACT WORK IS COMMENCED WITHIN 45 DAYS AFTER THE DATE OF THIS
CONTRACT. IN THE EVENT CONTRACT WORK IS NOT COMMENCED WITHIN 45 DAYS
FROM THE DATE OF THIS CONTRACT, CONTRACTOR, AT ITS SOLE OPTION, MAY
TERMINATE THIS CONTRACT AND NEGOTIATE A NEW CONTRACT PRICE WITH BUYER
3. Obligations of Buver.
3.1. Prior to the commencement of construction, Buyer shall obtain and deliver to Contractor an
attorney's certificate of title to the property, which certificate shall be in pro rtn, or other
J upon the
property of Buyer, which property is located and situated at
proof of Buyer's ownership of the premises which is satisfactory to Contractor and its
counsel.
3.2.' Buyer shall furnish to the Contractor all necessary surveys describing the physical
characteristics, soils; reports and subsurface investigations, restrictive covenants, building
restrictions, legal. limitations, utility locations,.and a legal.description of the building site.
Buyer shall review the plans and specifications submitted by Contractor and shall give prompt
written notice to the Contractor of any fault or. defect in the said plans and specifications.
3.3. Buyer shall pay to Contractor all sums due. and owing in accordance with paragraphs (5) and
(6) herein below and shall maintain the insurance required by paragraph (7) of this contract.
4. Obligations of Contractor.
4.1. Contractor will provide all eonshuetion supervisions, inspection; labor, materials, tools,
equipment, and subcontracted items necessary for the execution and completion of the
contract work
4.2. 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. .
43. Contractor shall supervise and direct the work, using his best skill and attention.
4.4. Contractor warrants to the Buyer that all materials and equipment incorporated into the
contract work shall be new unless otherwise specified; and that all contract work will be of
good quality, incontrinaance with the contract documents.
4.5. 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 under this contract on behalf of or with the Contractor.
4.6. The Contractor shall at all times keep the premises reasonably fife from the accumulation of
waste materials or rubbish caused by the operations of the Contractor. At the completion of
the work, the Contractor shall remove all tools, construction equipment, machinery and
surplus materials, and shall leave the work "broom" clean or its equivalent, except as
otherwise specified
5. Payment of Contract Price: Progress Payments.
5.1. In consideration for the performance of the contract work, Buyer agrees to pay Contractor, in
c 1, funds, as compensation for its service% the contract pride of _
Lan 4LYykr"A MM SZXQ:: 6`V tin,,r k(vA (1.?uit??
($ wags %w, c)b ) (subject to provisio of paragraph (2) of this contract).
5.2. The contract price shalt be paid by Buyer to Contractor based upon written applications for
payment which may be submitted by Buyer at the fallowing times:
$_9A_ Deposit due upon execution of this Agreement (Non Refundable):
% of the Contract Price upon the completion of the foundation;
% of the Contract Price when the roof is completed, when framing and sheathing
are completed and when all windows are set in place;
% of the Contract Price when the installation of electrical and phmnbing systems,
in rough form, are -completed,
,ul? % of the Contract Price when the interior drywall is sanded "Y for painting;
Balance of Contract Price, and any other payments required by paragraph (6) herein under, upon
substantial completion of the building as outlined herein or at the time of occupancy of the building by
Buyer:
(Bank(Mortgage Co. payments and or Draw Schedule to override payment schedule of contract, with
exception of Non Refundable Deposit)
5.3. The Buyer, without invalidating the contract, may order changes in the work consisting of
additions, deletions, or modifications, the contract sum and the contract time being adjusted
accordingly. All such changes in the work shall be authorized by written change order signed
by the Buyer.
5.4. A change order is a written order to the Contractor signed by the Buyer or his authorized
agent and issued after the execution of this agreement, authorizing a change in the project
and/or an adjustment in the Contract Price, or the performance time schedule.'
5.5. The cost or credit to the Buyer for a change in the work shall be determined by Contractor
5.6. The making of final payment shall constitute a waiver or all claims by the Buyer except those
arising from (1) unsettled liens (2) fitults or defects appearing within one"year after,
completion or (3) failure of the work to comply with the requirements of the contract .
documents. The acceptance of final payment shall constitute 'a waiver of all claims by the
Contractor except those previously made in writing and still unsettled.
6. Other Payments. The following items shall be paid by the Buyer in addition to the contract price:
• The cost of excavating which includes the cost of rock removal, regardless of whether such
removal requires the aid of explosives.
• Additional costs involved in providing extra engineering or foundation work which maybe
required if the Contractor encounters abnormal or unusual subterranean conditions during the
course of construction
• The cost of extra concrete block and labor necessary to install the same for the construction of
foundation that maybe required in excess of blueprint specifications.
• The cost of labor and materials needed to divert or control surface or subsurface water found
during the course of construction.
• The cost of all fill and topsoil required to backfiR and grade the job site.
• The cost of removal of all excess dirt and fill from the job site.
7, limmm` c. Unless otherwise .provided, the Buyer shall purchase and maintain property insurance
upon the entire contract work at the site to the full insurable value thereof The insurance shall
include the interests of the Buyer, the Contractor, and Subcontractors in the contract work and
shall insure against the perils of fire, extended coverage, vandalism and malicious mischief, any
insured loss to be adjusted with the Buyer and made payable to the Buyer as trustee for the
insureds as their interests may appear, subject to the requirements of any mortgagee clause. The
Buyer shall provide a copy of all policies to the Contractor prior to the commencement of the
work. The Buyer and Contractor waive all rights against each other for damages caused by fire or
other perils to the. extent covered by insurance provided under this paragraph. The Contractor shall
require similar waivers by Subcontractors.
8. Correction of V?orF. The 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 workpkansbip which
appear within a period of one year from the date of completion of the contract ors of
this paragraph apply to the work of Subcontractors as well as to work done by.direct employees of
the Contractor. Contractor does not, warrant a waterproof or damp proof basement. Contractor
agrees to provide Buyer with a complete list of warrantable and non-warrantable items. -me
Contractor makes, and there exist; no other warranties, written or implied, concerning the contract
work or any other subject matter of this agreement.
9. Contract Commencement and Conletion
s
9.1. The work to be performed under this contract shall be commenced on or about
or within 15 days after the date Buyer bas filled all, obligations required by paragraph (3) of
this contract, and except as otherwise provided or permitted by the contract, shall be.
substantially completed not later than 1Xn dr?kl -" 6 &4rrr+14 Cec sA-r:Q+I? .
9.1 If the Contractor is delayed at any time in the progress of the construction work by any act
or failure orneglect of the Buyer or by changes ordered in the project or by labor disputes,
fire, unusual delay in transportation, adverse: weather conditions, unavoidable casualties, or
any causes beyond the Contractor's control, or a delay authorized by the Buyer, then the date
for substantial completion shall be extended by aperiod of time equal to the period of such
delay.
9.3. Buyer acknowledges and understands that commencement and completion times represent the
best professional estimation of the Contractor: Unless otherwise provided herein, Buyer shall
be responsible for any and all rents, utilities and mortgage interest expenses or fees during the
entire construction period, regardless of whether additional time is required for construction
to be completed whether due to adverse conditions, scheduling problems, material non-
availability, or for any other reason beyond the Contractor's control
• Neither the Buyer nor the Contractor shall assign their or its respective interests in this agreement
without the written consent of the other, except to the assignment of proceeds.
• This agreement shall be governed by the laws in effect at the location of this project.
Home Designs Unlimited
Design & Construction
Buy
Buyer
Authorized Signature
veagn a eonsnnenon
Job Name Benwdffi Michelle Kelly 'Date Jamuarv 13, 2003
'Location Lot#127-5730Asm Lane - - Phone 717.255.2213
Fnola, PA 17025 717-766-8077 W
The Westbury Community - -
L Earhmtes and.Alba9oces
EeRhmoving Fixed NFU! me . rice
Fxcaviuft Baakt-dling Rough Grade X
Dtiv y Stone _ x _
. Dyrmoim Blasting Sealxmn6otcomnctia,cmuut
ClemffiGrub - x
Top Sal&Fill - Sahma86 ofConsumbon contemn .
TOTAL ESTIMATES / ALLOWANCES FOR EARTNMOVINO 0.00
Miseelleneous Allowmrcesi - - ,
I. LiduinHPeckage Allowance ( includes rae md. bath fuwlidn combos, _ $ 1.800.00
- z dombdl ki4ame, detecta5, hdmioraad exlmionlidds)- -.
- - S
3. --wmE: Suodrd Reasxd-S55.ODSeoh S .
-a Eyeball Recessed-S65.00Eaeb
- S
s. - Souv $Ioeed Reoe>eod-595.00 Jbrclr' S ..
r S
7 S
TOTAL FOR MISCELLANEOUS ESTIMATES/ALLOWANCES S 1;800:00
TOTAL OF ALL ESTIMATES/ ALLOWANCES INCLUDED IN SECTION I' ... S 1,800.00
IL Home contract Price S 209,800.00
UL Herne Featares/Optlum Included in Section I
or,
nm
Bitbibit A
uestgn o: i umiruwws
Standard' Specifications
dnderdor
. 6 Panel Masonite Doors
. 3 ''/a" Colonial Baseboard Trim
2 %4" Colonial Casing
. All Windows Trimmed - including Large Window Sills
. GE (or equal) Appliances to Include Range, Hood or Microwave, Dishwasher, and Disposal (where applicable)
Choice of Cabinet Wes - From Standard Line
. Choice of Interior Floor Coverings From .Standard Line ( carpeting installed on 61b, pad )
. Choice of Countertops (choice of formica or cultured marble tops in baths)
.. Beveled Edge Kitchen Countertops. -
. Fiberglass Tub/Shower Combinations - Choice of White or Bisque
. Moroi-Monti=116 Series Faucets in all Befits
. R-38 Ceiling Insulation (R-30 in cathedral areas where applicable)
. ' R=19 Sidewall Insulation
R-19 Floor Insulation (when applicable)
52 Gallon Electrical Water Heater or/ 50 Gallon Gas where Applicable
13igh Efficiency Gas or Propane Furnace with Central Air
• TV & Phone Jacks as per Plan ( 5 Phone Jacks & 5 TV Jacks )
. 2 Nanner Switches
a All Bedrooms wired fw Fan/Light Combo slang with Switch Receptacles
. 1 Fan/Light Combo with Switch Receptacle in Family Room/Den
. Smoke Detectors as per Code (including all bedrooms)
. (3) Garage Electrical Outlets
Exterior
. Steel insulated Exterior Doors
. Smooth Star Series Front Doan - Sidelights as per Plan ( choice of full or half glass
. Insulated Vinyl Windows with Tilt Feature and Grills
. Vinyl Soffits and Fascia
. Aluminum Seamless Gutters and Downspouts
25 Year Dimensional Fiberglass Shingles
• : 2 Outside Hose Bilks (frost free)
2 Outside Electrical Outlets
Door Chime at Front Entry Door
Lights at all Exterior Doors -Pole Light were Applicable
Frorerar & Consouc don
. All Framing Sizes to meet Code
. 2x6 Exterior Walls with 7/16" OSB Sheathing
. '/." T&G Sub Floors
. Pressure Treated Sill Plate
. '/d' Underlayment Under all Vinyl Areas
. 3" Perimeter Foundation Drains as Required
a Radon System as Required
e 200' Amp Service
. WatchDog Waterproofing system
. 10 Year Residential Warranty Program (RWC)
Exhibit B
Follow-up list - 5730 Aspen Lane (Kelly)
-Repair crack and repaint vaulted ceiling in Master Bedroom.
-Repair cracked tile around tub in Master Bath.
-Remove blue strip on hard wood floor in hallway..
-Several windows have no insulation in them.
-Large crack in the wall of the Family Room. `
-Floor in dining Room is uneven (slopes up) as you move towards the bay window. ( 51 nts 'In m icLli?)
-Master Bath - Top part of one of the windows will not stay up.
-Crack in wall of Master Bedroom by the bathroom archway.
-Hallway floors are uneven.
-Handle on sliding screen door sticks.
-Back left bedroom door rubs on the carpet.
-Squeaky doors on bonus room and door from house to garage.
-Window in front left bedroom sticks - difficult to move up & down.
-Wood under sliding door needs to be replaced (outside).
-Both sets of stairs never screwed into beams (per employee of HDi1).
-Misc. nail pops.
-Large number of cracks and gaps in corners (both wall and base boards).
-THE YARD!
-Contact McNaughton regarding water problem being caused by run-off from his property. (Tell them your client is
pissed):
-fix caulking on kitchen tile
-install 5 dimmer switches as requested at Christmas time
-crack in wall in bathroom by towel bar
-squeaky floorboards in living room, dining room, and bonus room
-check siding above front door (rust stains?)
-left door of toaster bathroom sticks
-windows not sealed well - cold air blows in around edges and back rooms can be freezing!
-possible moisture in some back windows
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EXHIBIT
Gannett Fleming
('ele6raa{rto W ears o
January 23, 2006
Mr, Bernie Kelly
5730 Aspen Way
Enola, PA 17025
OANN91T FLEMING, INC.
P.O. Box 87100
Hanitsburg, PA 17108-7100
Location:
207 8We Avenue
Camp PA 17011
O81ac 17 783.7211
Fix; (71 763.6180
www.gannettseming.com
Re; Kelly Residence (Lot 127, Westbury Development)
Hampden Township, Cumberland County, PA
Storm Water Drainage Problems
Gannett pleming Job Number: 045602
Dear Mr. Kelly:
Gannett Fleming, Jne. is pleased to provide you with this letter describing our findings from a July 8,
2005 meeting with W. Jerry Spease, Hampden Township Engineer, from two separate site visits to your
property, which were held on June 9 and July 8, 2005, and review of the plans for Phuo 6B and Phase 7A
and 7B, Please note that these findings are based on a review of the approved plans with the Township
and visual observations from site visits. A site survey was not performed to verify field conditions.
Cerrently, at the rear of the Kelly residential property, stormwater is being concentrated in a low area
located approximately in the center of the yard, not far from the edge of apatio and the house. Stormwater
collects in this area and remains after the storm event has ceased. We believe there are four (4) factors
contributing to this drainage problem
1. The Kelly property along with their neighbor's property to the south are graded to direct
stormwater from the upstream drainage area through the center of their rear yards, without any
6tormwater collection and conveyance facilities to handle the stormwater flows. A
stormwater inlet (1-67-A from Phase 7A and 7B plans) is located at the southwestern corner
of the Kelly property. The grate of this stormwater inlet is higher than the surrounding land,
and is not collecting surface stormwater flows, From the review of the approved plans for
Phase 7A and 7B of the Westbury Development, there is a 20' stormwater easement located at
the rear and southwestern side lot lines of the Kelly property (10' on each side of the property
line). From the review of the approved plans for Phase 7A and 7B of the Westbury
Development, the Phase 6B lots were to have been graded to direct stormwater to the front
and rear of the properties, with a swale dtrcrdng upstream surface runoff into the stormwatu
inlet (I-67-A). It is important to note that we were told, in the July 8, 2005 meeting with Ivir.
Jerry Spease, that Hampden Township does not require individual lot grading to be shown on
Residential Subdivision Plans and the plans for Phase 6B of the Westbury Development did
A 7lndisdon of Excellence
Since 1915 r EXHIBIT r
C
Gnnneit Fleming
Mr. Bernie Kelly
1/23/2006
Page 2
not show proposed grading for the lots. The approved Phase 6B plans did show grading for
Aspen Lane, which showed the Kelly's lot approximately 6' higher than the road elevation
along the frontage of the property, We do not believe that the Kelly's first floor elevation is
approximately 6' higher then the road elevation along the property frontage. Section
506(2)(H) of the Hampden Township Subdivision and Land Development Ordinance states
"Lots shall be laid out and graded to provide positive drainage away from buildings and septic
systems. The Township Commissioners may require a grading and drainage plan for
individual lots indicating it buildable area within each lot, complying with the setback
requirements, for which positive drainage is assured." Also Section 507(1) and (2) (Lot
Grading for Subdivisions and Land Developments) states (1) 'Blocks and lots shall be graded
to provide proper drainage away from buildings and to prevent the collection of stormwater in
pools, Minimum 2% slopes away from the structures shall be required, for a distance of 10
feet" and (2) "Lot grading shall be of such design as to carry surface waters to the nearest
practical street, storm drain or natural watercourse. Where drainage swalos are used to deliver
surface waters away from the buildings, their grade shall not be less than I % nor mom than
4%. The swales shall be sodded, planted or lined as required, A grading and drainage plan
shall be required for all land developments." The Kelly's sump pump is located such that
flows from the sump pump contribute to the ponding and wetness in the back yard. The sump
pump should be directed away from the back yard, which would reduce the amount of water
to the back yard and also eliminate a source of water that continues after the runoff from the
storm has ceased.
2. We do not believe that the storm sewer system from Longwood Lane is collecting stormwater
as intended by the approved plans, The approved plans for Phase 7A and 7B of Westbury
Development have a stormwater inlet (I-67-A) located at the southwestern comer of the Kelly
lot within a stormwater swale, Stormwater inlet I-67-A is installed, however it is not installed
in a low point to collect water and is located too high to collect surface runoff, At the time of
the site visits, I-67-A had a sediment filter bag installed in the inlet, which did not allow us to
look in the inlet. However, based on the approved plans for Phase 7A and 7B, Inlet I-67-A is
5.84' deep. There is a stormwater manhole (ST-MR-2) installed at the northwestern corner.
The manhole has a solid cover installed and is installed higher than the surrounding land, We
believe this system should have boon installed within a stormwater swate. The land around the
inlet I.67-A should be graded to direct surface runoff to the inlet. This stormater system
located at the rear of the Kelly property connects into the Aspen Lane storm sewer system,
which flows to a stormwater management facility. Runoff from these lots is currently not
being collected by inlet I.67-A to direct the flow towards the stormwater management facility,
but instead is flowing into the drainage channel at the northern side of the Kelly lot and to
Sears Run,
3. It does not appear that topsoil was reapplied upon final grading and prior to seeding of the
area. Areas of the lot appear to be compacted significantly enough to limit the soils ability to
absorb stormwater, specifically there is an area along the western property line that, as you
have stated, was used by construction equipment to travel between Phase 6B and Phases 7A
and 7B. This area is actually still mounded up as to depict a travel way from your lot back
Genet Fleming
Mr. Bernie Kelly
1/23/2006
Page 3
towards Phase 7B. The compacted soils along with the lack of topsoil on the drainage area is
limiting the absorption of stormwater by the soil and increasing the amount of runoff directed
through your property. As stated in the Hampden Township Laud Development Ordinance,
Section 510.(5) (Topsoil Preservation) "All of the topsoil from areas where cuts and fills have
been made should be stockpiled and redistributed uniformly after grading. All areas of the
site shalt be stabilized by seeding or planting on slopes of less than ten (10) percent and shall
be stabilized by sodding on slopes 1096 or more and planted in ground cover on slopes 20%
or greater." Please note that a soils scientist has not been consulted on the conditions of the
site soils.
4. There is minimal slope across the Kelly rear yard, except for along the northern side of the
property. The stormwater from upstream lots and the Kelly's sump pump are collecting in
this minimum sloping area, creating pending and puddles.
Based on the site visits, it appears an attempt was made to help alleviate the ponding of atormwater in
the Kelly rear yard. A perforated PVC pipe outlet is located at the top of the elope at the northern side
of the property. Mr. Kelly stated that the contractor had installed a stone trench with this perforated
pipe to help collect the stormwater from this ponding area. On July 8, 2005 we had made our second
site visit, which happened to be the afternoon after a morning rain. Water was ponded in the yard;
however no water was flowing out of the end of the PVC pipe. We do not believe this attempt is
helping the drainage problem as we did not see any proof of flow leaving the PVC pipe.
We believe that the above mentioned factors are contributing to the drainage problem in the Kelly rear
yard. We feel that the Kelly lot along with their upstream neighbors lots should have been graded
towards the rear lot line and stormwater should have been collected and conveyed in a swale along the
rear property line to inlet I-67-A.
If you should have any questions, please feel free to call me at (717) 763-7212, Extension 2214,
Sincerely,
GANNETT PI.SMING, INC.
Pater S. Joyce, P.E?
Project Manager
VERIFICATION
We verify that the statements made in this Complaint are
true and correct. We understand that unsworn statements herein
are made subject to the penalties of 18. Pa. C.S.A. § 4904,
relating to unsworn falsification to authorities.
Date: UUI1C I 2006 1?-
Bernard V. Kelly, Jr.
Mic ele A. Kelly
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STONE LAFAVER G SHERLETSKI
BY ELIZABETH B. STONE
SUPREME CT. ID.#60251
414 BRIDGE STREET
NEW CUMBERLAND, PA 17070
717-774-7435
BERNARD V. KELLY, JR. and
MICHELE A. KELLY,
Plaintiffs,
V.
HOME DESIGNS UNLIMITED, LLC.,
Defendant
ATTORNEYS FOR DEFENDANT
HOME DESIGNS UNLIMITED, LLC
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 06 - 3245 CIVIL TERM
CIVIL ACTION - IN LAW
JURY TRIAL DEMANDED
NOTICT
You have been sued in court. If you wish to defend against the
claims set forth in the following pages, you must take action within
twenty (20) days after this complaint and notice are served, by
entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set
forth against you. You are warned that if you fail to do so the case
may proceed without you and a judgment may be entered against you by
the Court without further notice for any money claimed in the com-
plaint or for any other claim or relief requested by the plaintiff.
You may lose money or property or other rights important to you.
You SHOULD TARE THIS PAPER TO YOUR LAMYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT wHERE
YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 South Bedford Street
Carlisle, PA 17013-3302
Telephone: (717) 249-3166
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Le han demandado a usted en la corte. Si usted guiere defenderse
de estas demandas expuestas en las paginas siguientes, usted tiene
viente (20) dias de plaza al partir de la fecha de la demanda y la
notificacion. Usted debe presentar una apariencia escrita o en
persona o par abogado y archivar en la corte en forma escrita sus
defensas o sus objectiones a las demandas en contra de su persona.
Sea avisado que si usted no se defiende, la corte tomara medidas y
puede entrar una orden contra usted sin previo aviso o notificacion y
par cualquier queja o alivio que es pedido en la peticion de demanda.
Usted puede perder dinero o sus propiedades o otros derechos
importantes para usted.
IaJ= ESTA DEWNDA A UN ABODAGO ISMIATA EMM. SI NO TIENE
ABOGADO O BI NO TIMM EL DIMMO SUPICIENRE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA O WJM POR TELEP'0N0 A LA 08ICINA CQYA DIRECCION SE
ENCOSNTRA ESCRITA ASAJO PARR AVERIGOAR DONDE SQ PDEDE CONSEGOIR
ASISTENCIA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
32 South Bedford Street
Carlisle, PA 17013-3302
Telephone: (717) 249-3166
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STONE LAFAVER & SHEKLETS
BY ELIZABETH B. STONE
SUPREME CT. ID.#60251
414 BRIDGE STREET
NEW CUMBERLAND, PA 17070
717-774-7435
ATTORNEYS FOR DEFENDANT
HOME DESIGNS UNLIMITED, LLC
BERNARD V. KELLY, JR. and
MICHELE A. KELLY,
Plaintiffs,
V.
HOME DESIGNS UNLIMITED, LLC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 06 - 3245 CIVIL TERM
CIVIL ACTION - IN LAW
JURY TRIAL DEMANDED
DEFENDANT'S PRELIMINARY OBJECTIONS
TO PLAINTIFF'S COMPLAINT
AND NOW, comes the defendant, Home Designs Unlimited,
LLC., by and through its attorneys, Stone LaFaver & Shekletski,
and files the following preliminary objections pursuant to Pa. R.
C. P. §1028 et seq., and in support thereof, avers as follows:
DEFENDANT'S PRELIMINARY OBJECTION
PURSUANT TO PA. R.C.P. 1028 (a)(6)
PRIOR AGREEMENT FOR ALTERNATIVE DISPUTE RESOLUTION
1. Plaintiffs signed a home warranty contract issued by
Residential Warranty Corporation - New Home Warranty, on
September 18, 2003, with the Defendant. Pursuant to the RWC
program, this warranty includes a provision for binding
7
arbitration in the event that there is a dispute. Plaintiffs
have failed to plead specifically this provision in the warranty
contract; therefore, this complaint must be dismissed for prior
agreement for alternative dispute resolution. Attached herein is
a copy of the warranty contract, marked as Exhibit "A", and made
a part of the record thereto.
WHEREFORE, Defendant requests that this Honorable Court
dismiss the Plaintiffs' complaint with prejudice.
tted,
Respectfully ZHaJEI
STONE LaFAVER Elizal th tone, qu
Sup
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15d, n 1770
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DATED: q13 `z)k
YH. Sto &) quire
Sup. . I 39785
414 Bridge Street, Box E
New Cumberland, PA 17070
(717) 774-7435
Attorneys for the Defendant
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EXHIBIT "A"
~ APPIICAItEtr)rN enFOR WARRANTY FORM ApplicationNo. 2365401
ResidenfalT.Wty Corporation-New Home Warranty
ANUWAW ,;T LIMITED WARRANTY
CJWAFONQ&MW Compleie ALL information in spaces provided. WPIC 319 REV. 09 / 01
smeeeer31ee.nwdam.PA17111 See hack for detailed instructions. - -
eh:stt-%uw° r" 7n-1st + Attach, a copy of the seulment sleet to this form 99/1 f/ 290'
1. Bauder Namq.8010 DEBIT UNLIMITED Registmdm Number 010618
2. Lot/fob • 127 Block # Devetopmmtlsnbdividon WEBTBUR7!
House Numbei•aadShod Name 3736 ASPEN LN
City ENOLA state PA TIP 17025
3. If the mailing address to be and for this home is diRamt from 42, plena
4.. se ]odng Date: s. ?. Fun Occupancy Der. ..
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7. `Bscladom: The Penchant saknowledges that the Booed :oases. Ffaoy.. will not be warn mad by me RWC Waeaety dace day wave not
an euiaded by aonaef or mg as trelhde4' dms ffi et mint pedb& (iWWWM* ft0baer Ent 61111 1111 NW U e'esdadsar.} c%a
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?Top 2 copies of this form ?A copy of the walcumt sheet X X
*'A cbeck for TOTAL DUB (we ccakellstimr above). mod. 7,7 two , rnr •e Y. ;
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BERNARD V. KELLY, JR., and : IN THE COURT OF COMMON PLEAS OF
MICHELE A. KELLY, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION - LAW
HOME DESIGNS UNLIMITED, LLC, DOCKET NO. 06-3245 CIVIL TERM
Defendant
ANSWER OF BERNARD V. KELLY. JR.
AND MICHELE A. KELLY TO DEFENDANT'S
Bernard V. Kelly, Jr. and Michele A. Kelly, Plaintiffs, by
and through their attorneys, James D. Bogar, Esquire, and
Jennifer B. Hipp, Esquire, hereby file their Answer to Defendant
Home Designs Unlimited, LLC's Preliminary Objection and
respectfully represent as follows:
1. Admitted in part, denied in part. It is admitted that
Plaintiffs entered into a home warranty contract with Defendant.
It is specifically denied that any provisions in the home
warranty contract require binding arbitration for resolution of
the issues presented in Plaintiff's Complaint. By way of further
answer, the allegations set forth in Defendant's Paragraph No. 1
are conclusions of law to which no response is required.
2. On or about December 31, 2004, Defendant's
representative, Denise P. Thompson, Vice President, Home Designs
Unlimited, LLC, advised Plaintiffs that the storm water drainage
issues were not covered or included in the home warranty
contract. A copy of Ms. Thompson's December 31, 2004
correspondence is attached hereto and incorporated herein as
Exhibit "A".
WHEREFORE, Bernard V. Kelly, Jr. and Michele A. Kelly,
respectfully request that this Honorable Court overrule
Defendant, Home Designs Unlimited, LLC's Preliminary Objection
and order that Defendant file its Answer to their Complaint and
order any other relief as is deemed appropriate.
Respectfully submitted,
Date: July20, 2006
Jenn r B.' Hipp, Esquire
Pa. . No. 86556
JA es D. Bo , Esquire
Pa. I.D. Noa9475
One West Main Street
Shiremanstown, PA 17011
(717) 737-8761
Attorneys for Plaintiffs,
Bernard V. Kelly, Jr. and
Michele A. Kelly
BERNARD V. KELLY, JR., and
MICHELE A. KELLY,
Plaintiffs
V.
HOME DESIGNS UNLIMITED, LLC,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
DOCKET NO. 06-3245 CIVIL TERM
CERTIFICATE OF SERVICE
I, Jennifer B. Hipp, Esquire, hereby certify that I am this
day serving the foregoing Answer to Preliminary Objection upon
the following named individual this day by depositing same in the
United States Mail, First Class, postage prepaid, at
Shiremanstown, Pennsylvania, addressed as follows:
Elizabeth B. Stone, Esquire
Stone LaFaver & Shekletski
414 Bridge Street, P.O. Box E
New Cumberland, PA 17070
Date: July 20 , 2006
Esquire
UNLIMITED
_ ?esi?x c-G `?"parastructiox
- - www.HomeDesignsUnlimited.com -
December 31, 2004
Attn: Jennifer B. Hipp
James D. Bogar'
One West Main Street
Shirememanstown, PA 17011
SENT VIA FAX AND US MAIL
Dear Ms. Hipp,
This letter will serve as our written response to your letter dated. December 14, 2004 and
our phone conversation on December 16, 2004. As we discussed, the majority of the
Kelly's year-end warranty items have been scheduled and completed. According to our
records, on November 15, 2004 our representative completed all the covered warranty
items on the list with the exception of those that required further action and/or scheduling
by our sub contractors. Those items are as follows:
1. Drywall Cracks/Repain - On 12/08/04 Geesaman Drywaller's completed some
work, but due to limited time available all the required repairs could not be
completed. The Kelly's were instructed by the drywallers to contact their office
to schedule the balance of the work to be completed. According to their records,
they were never contacted to re-schedule.
2. Windows This will require a scheduled meeting with our window
representative to inspect and evaluate the windows that the Kelly's are
experiencing a problem with. Any corrective measures and/or parts will be
scheduled and/or ordered upon the completion of this evaluation. This inspection
can be scheduled as soon as the Kelly's have available time.
3. Un-Level Floors -These issues could not be addressed during our scheduled
work list on November 15, 2004. This will require and inspection by our Framing .
Contractor. At his recommendations, we will then take the necessary corrective
actions to address their concerns. This inspection can be scheduled as soon as the
Kelly's have available time.
P.O. Box 387, New Kingstown, PA 17072.Office 717-960-0295 • Fax 717-960-9744
HDU@HomeDesignsUnlimited.com
Ibis leaves only (2) items on the Kelly's year-end warranty list that are not considered
warranty issues and will not be completed by Home: Designs Unlimited. They are the
installation of (5) dimmer switches and the backyard drainage issues.
The dimmer switches are not part of the Kelly's contract. or are they considered a
warranty item. We have suggested to the Kelly's in the past that they should contact
Gaffney's Electrical Contracting @ 717-432-9473 directly,to obtain a quote and schedule
this work to be completed.,
As it relates to the backyard drainage issue, it is our position at this time that the backyard
drainage issues the Kelly's are experiencing is not considered a covered warranty item as
outlined in the Warranty Standards - Year One Coverage - 3.16 provided to them by the
Residential Warranty Corporation. As you are aware, we have already completed
additional work at the Kelly's residence above their contract for which we have never
received payment. The Kelly's, authorized'this work prior to any work commencing.
We certainly understand the frustration the Kelly's must be experiencing as a result of
this water drainage problem. However, we feel that other factors are contributing to their
problem that is beyond the control of Home Designs Unlimited
Please be assured that we will appropriately address the balance of items with the Kelly's
home that are considered.builder's responsibility as set forth in their Year One
Residential Warranty Coverage. If you have any questions or require clarification of their
warranty, please feel free to contact. the Residential Warranty Corporation @ 717-561-
4480.
I will look forward to hearing from you in an effort to bring this matter to a quick and
complete close that will be satisfactory to all parties involved.
Sincerely,
Home Designs 'ited LLC
ign & Cons u n -
Denise P. Thompson
Vice President
Cc: David R. Thompson-President
File
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BERNARD V
MICHELE A
KELLY, JR., and
KELLY,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
HOME DESIGNS UNLIMITED, LLC, DOCKET NO. 06-3245 CIVIL TERM
Defendant
PLAINTIFFS BERNARD V KELLY JR AND MICHELE A. KELLY'S
PRAECIPE FOR LISTING CASE FOR ARGUMENT
1
2
State matter to be argued:
Defendant Home Designs Unlimited, LLC's Preliminary
objections to Plaintiffs Bernard V. Kelly and Michele
A. Kelly's Complaint and Plaintiffs' Answer to
Defendant's Preliminary Objections.
Identify counsel who will argue case:
(a) for Plaintiff:
James D. Bogar, Esquire
Bogar & Hipp Law Offices
One West Main Street, Shiremanstown, PA 17011
Telephone number: (717) 737-8761
Facsimile number: (717) 737-2086
(b) for Defendant:
Elizabeth B. Stone, Esquire*
414 Bridge Street, P.O. Box E
New Cumberland, PA 17070
Telephone number: (717) 774-7435
Facsimile number: (717) 774-3869
*attorney listed of record for Defendant
3. We will notify all parties in writing within two days
that this case has been listed for argument.
4. Argument Court date: September 6, 2006
Respectfully submitted,
Dated: August 16, 2006 BY. ?J&j6w'
James . Bogar, E,quire
Bogar & Hipp La ffices
One West Main Street
Shiremanstown, Pennsylvania 17011
Telephone: (717) 737-8761
Facsimile: (717) 737-2086
Supreme Court ID No. 19475
Attorney for Plaintiffs
r ?
BERNARD V. KELLY, JR., and : IN THE COURT OF COMMON PLEAS OF
MICHELE A. KELLY, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION - LAW
HOME DESIGNS UNLIMITED, LLC, DOCKET NO. 06-3245 CIVIL TERM
Defendant
CERTIFICATE OF SERVICE
On this date we do swear and affirm that a true and correct
copy of Plaintiffs Bernard V. Kelly and Michele A. Kelly's
Praecipe for Listing Case for Argument in the above-captioned
matter was served upon Defendant, Home Designs Unlimited, LLC, by
forwarding a copy thereof to Elizabeth B. Stone, Esquire,
attorney of record for Defendant to the following address, by
First Class United States Mail as follows:
Elizabeth B. Stone, Esquire
414 Bridge Street, P.O. Box E
New Cumberland, PA 17070
Dated: August 16, 2006
By: l 4 ,
Ja es D. B ga , Esquire
Pa. I.D. N 9475
1 West Main Street
Shiremanstown, PA 17011
(717) 737-8761
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BERNARD V. KELLY, JR., and
MICHELE A. KELLY,
Plaintiffs
VS.
HOME DESIGNS UNLIMITED, LLC.,
Defendant
TO THE PROTHONOTARY:
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2006-3245 CIVIL TERM
PP.AECIPE
Please remove the above case from the argument court scheduled for September 6,
2006, without prejudice to have the matter re-filed for disposition at a later date.
Date: 9*?e? t' app
1 West Main Street
Shiremanstown, PA 17011
Jafnes D. Bar
Attorney at aw
Supreme Cou # 19475
_ tQ
BERNARD V. KELLY, JR., and
MICHELE A. KELLY,
Plaintiffs
vs.
HOME DESIGNS UNLIMITED, LLC.,
Defendant
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2006-3245 CIVIL TERM
PRAECIPE
TO THE PROTHONOTARY:
Please enter my appearance for the Defendant, Home Designs Unliminted, LLC in the
above matter.
Date: 3? f?u 2b
el L. Andes
Attorney at Law
Supreme Court ID #17225
525 North 12'h Street
P.O. Box 168
Lemoyne, PA 17043
(717) 761-5361
TO THE PROTHONOTARY:
Please withdraw the appearance of the undersigned as attorney for the Defendant,
Home Designs Unlimited, LLC in the above matter.
STONE, LaFAVERX SHMLETSKI
Date: 5-6u,
David H. Stoney V
Attorney at Law
Supreme Court ID # 3 Sf
414 Bridge Street
New Cumberland, PA 17070
(717) 774-7435
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BERNARD V. KELLY, JR., and : IN THE COURT OF COMMON PLEAS OF
MICHELE A. KELLY, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION - LAW
HOME DESIGNS UNLIMITED, LLC, DOCKET NO. 06-3245 CIVIL TERM
Defendant
PLAINTIFFS BERNARD V. KELLY JR. AND MICHELE A. KELLY'S
PRAECIPE FOR LISTING CASE FOR ARGUMENT
1. State matter to be argued:
Defendant Home Designs Unlimited, LLC's Preliminary
Objections to Plaintiffs Bernard V. Kelly and Michele
A. Kelly's Complaint and Plaintiffs' Answer to
Defendant's Preliminary Objections.
2. Identify counsel who will argue case:
(a) for Plaintiff:
James D. Bogar, Esquire
Bogar & Hipp Law Offices
One West Main Street, Shiremanstown, PA 17011
Telephone number: (717) 737-8761
Facsimile number: (717) 737-2086
(b) for Defendant :
Samuel L. Andes, Esquire
525 North 12th Street
P.O. Box 168
Lemoyne, PA 17043
Telephone number: (717) 761-5361
Facsimile number: (717) 761-1435
3. We will notify all parties in writing within two days
that this case has been listed for argument.
W 1'
4. Argument Court date: October 25, 2006
Respectfully submitted,
Dated: September 25, 2006 BY.
James D. Boga squire
Bogar & Hipp L Offices
One West Main Street
Shiremanstown, Pennsylvania 17011
Telephone: (717) 737-8761
Facsimile: (717) 737-2086
Supreme Court ID No. 19475
Attorney for Plaintiffs
BERNARD V. KELLY, JR., and
MICHELE A. KELLY,
Plaintiffs
V.
HOME DESIGNS UNLIMITED, LLC,
Defendant
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
DOCKET NO. 06-3245 CIVIL TERM
CERTIFICATE OF SERVICE
On this date we do swear and affirm that a true and correct
copy of Plaintiffs Bernard V. Kelly and Michele A. Kelly's
Praecipe for Listing Case for Argument in the above-captioned
matter was served upon Defendant, Home Designs Unlimited, LLC, by
forwarding a copy thereof to Samuel L. Andes, Esquire, attorney
of record for Defendant to the following address, by First Class
United States Mail as follows:
Samuel L. Andes, Esquire
525 North 12th Street
P.O. 168
Lemoyne, PA 17043
Dated: September 25, 2006
By:
Jam 4s D. Bo a , Esquire
Pa. I.D. No. 9475
1 West Main Street
Shiremanstown, PA 17011
(717) 737-8761
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SHERIFF'S RETURN - REGULAR
CASE NO: 2006-03245 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
KELLY BERNARD V JR ET AL
VS
HOME DESIGNS UNLIMITED INC
VALERIE WEARY Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
HOME DESIGNS UNLIMITED INC the
DEFENDANT , at 1149:00 HOURS, on the 13th day of June 2006
at 199 BEAGLE CLUB ROAD
CARLISLE, PA 17013 by handing to
CHERIE SCHOCK ADULT ON CHARGE
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 18.00
Service 4.40
Postage .39
Surcharge 10.00 R. Thomas Kline
32.79? 00/00/0000
Ch,,, ?/i glop
Sworn and Subscibed to By: I,
before me this day D uty Sheriff
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of A. D.
BERNARD V. KELLY, JR., and
MICHELE A. KELLY,
Plaintiffs
VS.
HOME DESIGNS UNLIMITED, LLC.,
Defendant
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2006-3245 CIVIL TERM
DEFENDANT'S PETITION TO COMPEL ARBITRATION
AND NOW come the above-named Defendant, by its attorney, Samuel L. Andes, and
petition the court to compel the Plaintiffs to submit their claims to binding arbitration, based
upon the following:
1. The Petitioner herein is the Defendant. The Respondents are the Plaintiffs.
2. The claims in this matter arise out of a residence which the Defendant consulted
for the Plaintiffs and claims Plaintiffs have made as to the workmanship provided by
Defendant and various implied warranties arising out of the contract between the parties.
3. At the time the parties signed the contract they discussed a home warranty
program available to Plaintiffs from the Residential Warranty Corporation (hereinafter
"RWC") and Plaintiffs were provided with a copy of the warranty documents, a copy of
which are attached hereto and marked as EXHIBIT A.
4. After Defendant had substantially completed the construction of the home for
Plaintiffs, Plaintiffs elected to accept RWC's limited warranty program and, at the time,
completed and signed an "application for warranty form", a copy of which is attached hereto
and marked as EXHIBIT B.
5. Thereafter, RWC accepted the application of the parties and issued its limited
warranty to the Plaintiffs for the residence.
6. As noted in the application for warranty form, the warranty includes a provision
for binding arbitration. By completing the application and accepting the terms of the
warranty, Plaintiffs accepted the provision of the warranty requiring them to submit their
claims to binding arbitration.
7. By the express terms of the application for warranty form, the Plaintiffs, by
accepting RWC's limited warranty, waived all other "... warranties, oral arguments, or
representations" and acknowledged that the Defendant made no "warranty, express or
implied as to quality, fitness for a particular purchase, merchantability, habitability or
otherwise" except as expressly set forth in the RWC limited warranty.
8. As a result of the above, Plaintiffs must submit the claims in this matter to
arbitration pursuant to the RWC limited warranty program.
9. Defendant does not have a copy of the final warranty booklet or document issued
by RWC to Plaintiffs and believes that document is within the exclusive possession and
control of Plaintiffs. Defendant, However, believes that the document attached hereto and
marked as EXHIBIT A is identical to the booklet provided to Plaintiffs in January of 2003
and thereafter provided to Defendants by RWC.
WHEREFORE, Defendant prays this court to enter an order compelling Plaintiffs to
submit their claims in this matter to binding arbitration in accordance with the terms of the
RWC limited warranty document and to stay all further proceedings in this matter until the
arbitration process has been completed.
Samue . Andes
Attorney for Defendant
Supreme Court ID #17225
525 North 12th Street
P.O. Box 168
Lemoyne, PA 17043
(717) 761-5361
.,
I verify that the statements made in this document are true and correct. I understand
that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904
(unsworn falsification to authorities).
Home Designs Unlimited, LLC
Date:
DAVID R. THOMPSON, Pr sident
EXHIBIT A
ESIDENTIAL
1111AARRANTY
ORPORATIONP
1 10 Year New Home Warranty
RESIDENTIAL WARRANTY CORPORATION
PRESENTS
THE LIMITED WARRANTY
10 YEAR WRITTEN WARRANTY FOR NEW HOMES
Within 90 days after receiving this War=
ranty book, you should receive a
validation sticker from RWC. If you do
not, contact your Builder to verify that the
forms were properly processed and sent to
RWC. You do not have a warranty without
the validation sticker.
Place validation sticker here.
Warranty is invalid without sticker.
This Limited Warranty does not cover consequential or incidental damages. The Warrantor's total aggregate liability
of this Limited Warranty is limited to the Final Sales Price listed on the Application For Warrantyform.
The Builder makes no housing merchant implied warranty or any other warranties, express or implied, in connection
with the attached sales contract or the warranted Home, and all such warranties are excluded, except as expressly
provided in this Limited Warranty. There are no warranties which extend beyond the face of this Limited Warranty.
Some states do not allow the exclusion or limitation of incidental or consequential damages by the Builder so all of
the limitations or exclusions of this Limited Warranty may not apply to you.
For your Limited Warranty to be in effect, you should receive the following documentation:
• Limited Warranty #319 - Application For Warranty form #316 (Refer to I.B.3. for applicability)-
- Validation Sticker #385- •
Insurer: Western Pacific Mutual Insurance Company, A Risk Retention Group
'S, 1996 Harrisburg, PA
Rev. 9101
RESIDENTIAL WARRANTY CORPORATION
5300 Derry Street, Harrisburg, PA 17111-3598 (717) 561-4480
TABLE OF CONTENTS
Section I. Definitions ............................................1
Section 11. The Limited Warranty ...........................3
Section III. Warranty Standards ..............................7
Section IV. Requesting Warranty Performance .....18
Section V. Addenda ..............................................20
A. Newark, Delaware
B. State of New York
C. State of Indiana
D. HUD (Applicable to VA/FHA financed homes only)
E. Maryland Addendum
page 319.1
A. Introduction
To help you better understand your Limited Warranty,
refer- to the following list of definitions which apply in this
book.
B. Definitions
1.
2.
3.
page 319.1
tr1996 Harrisburg, PA
Rev_9i01
Administrator
Residential Warranty Corporation (RWC) is the
Administrator of this Limited Warranty. RWC is
neither Warrantor nor Insurer.
Appliances and Items of Equipment, including At-
tachments and Appurtenances
Water heaters, pumps, stoves, refrigerators, com-
pactors, garbage disposals, ranges, dishwashers,
washers and dryers, bathtubs, sinks, commodes,
faucets, light fixtures, switches, outlets, thenno-
stats, furnaces and oil tanks, humidifiers, oil
purifiers, air conditioning materials, in-house sprin-
kler systems and similar items.
Application For Warranty
The form signed at closing by you, the Purchaser,
and your Builder which identifies the location, the
Effective Date Of Warranty and the Final Sales
Price of the enrolled Horne. If the Builder is par-
ticipating in the RWC electronic enrollment
process, the Application for Warranty form is elimi-
nated.
4. Arbitrator
A representative of an independent arbitration ser-
vice agreed upon by you, the Purchaser, and the
Administrator to determine coverage on an Unre-
solved Warranty Issue.
5. Builder
The person, corporation, partnership or other entity
which participates in the RWC Limited Warranty
Program and has obtained this Limited Warranty
for you.
6. Building Codes
The following codes are acceptable to the Insurer
of the Limited Warranty:
a. Building Codes
(1) CABO l & 2 Family Dwelling Code
(2) National Building Code (BOCA)
(3) Southern Building Code (SBCCI)
(4) Uniform Building Code (ICBO)
(5) International Building Code (IBC), (IRC)
b. Mechanical Codes
(1) CABO l & 2 Family Dwelling Code
(2) National Mechanical Code (BOCA)
(3) Southern Mechanical Code (SBCCI)
(4) Uniform Mechanical Code (ICBO)
(5) International Building Code (IBC), (IRC)
c. Plumbing Codes
(1) CABO 1 & 2 Family Dwelling Code
(2) International Plumbing Code
(3) National Plumbing Code (BOCA)
(4) Southern Plumbing Code (SBCCI)
(5) Southern Gas Code (SBCCI)
(6) Unifonn Plumbing Code (ICBO)
(7) International Building Code (IBC), (IRC)
d. Electrical Codes
(1) CABO 1 & 2 Family Dwelling Code
(2) National Electrical Code (NEC)
7. Consequential Damages
All consequential damages including, but not lim-
ited to, damage to the Home that is caused by a
warranted Defect but is not itself a warranted De-
fect and costs of shelter, transportation, food,
moving, storage or other incidental expenses related
to relocation during repairs.
8. Cooling, Ventilating and Heating Systems
All ductwork, refrigerant lines, steam and water
pipes, registers, convectors and dampers.
9. Defect
A condition of any item warranted by this Limited
Warranty which exceeds the allowable tolerance
specified in this Limited Warranty. Failure to com-
plete construction of the Home or any portion of the
Home, in whole or in part, is not considered a De-
fect.
10. Effective Date Of Warranty
The date coverage begins as specified on the Appli-
cation for Warranty form. If the builder is
participating in the electronic enrollment process,
the effective date is date of closing or occupancy,
whichever occurs first.*
11. Electrical Systems
All wiring, electrical boxes and connections up to
the house side of the meter base.
12. Home
The single family dwelling, identified on the Appli-
cation For Warranty form, which may be a
townhome, condominium or duplex.
13. Insurer
Western Pacific Mutual Insurance Company, a Risk
Retention Group (WPIC). Located at 1655
Lafayette Street, Suite 200, Denver CO 80218.
*FHA/VA Homeowners, refer to HUD Addendum, Section V.D.
Phone: 303-388-5688.
14. Limited Warranty
The terms and conditions contained in this book
including any applicable addenda.
15. Major Structural Defects (MSD)
All of the following conditions must be met to con-
stitute a Major Structural Defect:
a. actual physical damage to one or more of the
following specified load-bearing segments of
the home;
b. causing the failure of the specific major struc-
tural components; and
c. which affects its load-bearing fiinction to the
degree that it materially affects the physical
safety of the occupants of the home.
Load-bearing components of the home deemed to
have MSD potential:
(1) roof framing members (rafters and trusses);
(2) floor framing members (joists and trusses);
(3) bearing walls;
(4) columns;
(5) lintels (other than lintels supporting ve-
neers);
(6) girders;
(7) load-bearing beams; and
(8) foundation systems and footings.
Examples of non-load-bearing elements deemed not
to have Major Structural Defect potential:
(1) non-load-bearing partitions and walls:
(2) wall tile or paper, etc.;
(3) plaster, laths or drywall;
(4) flooring and subflooring material;
(5) brick, stucco, stone or veneer;
(6) any type of exterior siding;
(7) roof shingles, sheathing* and tar paper;
(8) heating, cooling, ventilating, plumbing,
electrical and mechanical systems;
(9) appliances, fixtures or items of equipment; and
(10) doors, trim, cabinets, hardware, insulation,
paint and stains.
16. Owner
See Purchaser.
17. Plumbing Systems
All pipes located within the Home and their fittings,
including gas supply lines and vent pipes.
18. Purchaser
You. The Purchaser includes the first buyer of the
warranted Home and any and all subsequent owners
who take title within the warranty period.
19. Residence
See Home.
20. Sewage Disposal System (Private or Public)
This system includes, but is not limited to, all
waste, drainage, sewer pipes and lines, cleanouts,
tanks, pumps, drainfields and seepage pits, outside
and beyond the exterior wall of the Home.
21. Structurally Attached
An integral part of the Home being structurally sup-
ported by footings, block walls or reinforced
concrete and connected to the foundation of the
Home.
22. Unresolved Warranty Issue
All requests for warranty performance, dernands,
disputes, controversies and differences that may
arise between the parties to this Limited Warranty
that cannot be resolved among the parties. An Unre-
solved Warranty Issue may be a disagreement
regarding:
a. the coverages in this Limited Warranty;
b. an action performed or to be performed by any
party pursuant to this Limited Warranty;
c. the cost to repair or replace any item covered
by this Limited Warranty.
23. Warrantor
Your Builder in Years 1 and 2; the Insurer in Years
3 through 10 and in Years 1 and 2 if your Builder
defaults.
24. Water Supply System (Private or Public)
This system includes, but is not limited to, all sup-
ply and distribution pipes, fittings, valves, pumps
and wells, outside the exterior wall of the Home,
which supply water to the Home.
page 319.2
,?N996 Harrisburg, PA *FHA/VA Homeowners, refer to HUD Addendum, Section V.D.
Rc%. 910 1
A. Introduction to the Limited Warranty
2
3.
4
5
6
1.
2.
3
4
page 319.3
01996 Hamsburg, PA
Rev 9/01
wPlc 9319
This book provides specific details, conditions and
limitations of the Limited Warranty including pro-
cedures for requesting warranty performance and
for binding arbitration, in accordance with the pro-
cedures of the Federal Arbitration Act. Additional
information may be received by calling RWC at
(717) 561-4480. Read this document in its entirety
to understand the protection it affords, the exclu-
sions applicable to it, the Warranty Standards which
determine its interpretations and operation and your
responsibilities.
This is NOT an insurance policy, a maintenance
agreement or a service contract. It is an explanation
of what you, the Purchaser, can expect from this
Limited Warranty.
Appliances and Equipment included in the Home
are not warranted under this Limited Warranty, but
may be covered by separate warranties provided by
the manufacturer or supplier. These warranties are
passed on to you by your Builder at closing and are
separate from this Limited Warranty.
You are responsible for maintenance of your new
Home. General and preventative maintenance are
required to prolong the life of your new Home.
This Limited Warranty is automatically trans-
ferred to subsequent Owners during the ten-year
term of this Limited Warranty.
This Limited Warranty is subject to changes re-
quired by various regulating bodies. FHA and VA,
as well as some local agencies have mandated the
additions noted in the Addenda Section of this Lim-
ited Warranty book. Notations throughout indicate
where the Addenda apply.
B. The Limited Warranty
Actions taken to cure Defects will NOT extend
the periods of specified coverages in this Limited
Warranty.
Only warranted elements which are specifically desig-
nated in the Warranty Standards are covered by this
Limited Warranty.
The Warrantor has the choice to repair, replace or
pay the reasonable cost to repair or replace war-
ranted items which do not meet Warranty Standards
and are not excluded in the Limited Warranty.
If a warranted MSD occurs during the appropriate
coverage period, and is reported as required in Sec-
tion IV, the Warrantor will repair, replace or pay
you the reasonable cost to repair or replace the war-
ranted MSD, limited to actions necessary to restore
the MSD to its load-bearing capacity.
C. Warranty Coverage
ONE YEAR COVERAGE: Your Builder warrants that
for a period of one (1) year after the Effective Date
Of Warranty, warranted items will function and op-
erate as presented in the Warranty Standards of
Year 1, Section III.A. Coverage is ONLY available
where specific Standards and Actions are repre-
sented in this Limited Warranty.*
2. Two YEAR COVERAGE: Your Builder warrants that
for a period of two (2) years from the Effective
Date Of Warranty, specified portions of the heating,
cooling, ventilating, electrical and plumbing sys-
tems, as defined in this Limited Warranty, will
function and operate as presented in the Warranty
Standards of Years 1 and 2 only, Section III.BJ
3. TEN YEAR COVERAGE: Major Structural Defects
(MSD) are warranted for ten (10) years from the
Effective Date Of Warranty.
Your Builder is the Warrantor during Years 1 and 2
of this Limited Warranty and the Insurer is the
Warrantor in Years 3 through 10.
4. CONDOMINIUM COVERAGE: This Limited Warranty
shall only apply to warranted common elements.
Warranted common elements are those portions of
the defined electrical, heating, ventilating, cooling,
plumbing and structural systems which serve two
(2) or more residential units, and are contained
wholly within a residential structure. Warranty cov-
erage for common elements shall be for the same
periods and to the same extent as similar or compa-
rable items in individual residential units. Examples
of common elements which are covered by this
Limited Warranty are hallways, meeting rooms and
other spaces wholly within the residential structure
designated for the use of two (2) or inore units.
Examples of common elements which are not cov-
ered under this Limited Warranty are club houses,
recreational buildings and facilities, exterior struc-
tures, exterior walkways, decks, balconies, arches
or any other non-residential structure which is part
of the condominium.
D. Conditions*
1. This Limited Warranty provides coverage only in
*FHA/VA Homeowners, refer to HUD Addendum, Section V.D.
*H.omeowners in lnrlian, info °• ,-. . . .. -
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Sectioh1 1. after Year 1, to, resulting from, or made worse
by all components of structurally attached
decks, balconies, patios, porches, porch roofs
-The and porticos.
Limited- j. after Year 1, to, resulting from, or made worse
Warranty > by elements of the Home which are constructed
(continued) separate from foundation walls or other struc-
tural elements of the Home such as, but not
limited to, chimneys and concrete floors of
basements and attached garages.
k. to wiring, to and between communication de-
vices from the source of power, whether or not
connected to the interior wiring system of the
Home. Such devices shall include, but not be
limited to, telephone systems, television cable
systems, intercom systems, computer systems
and security systems. Sources of power shall
include, but not be limited to, service entrance
conductors, switches, outlets, receptacles and
junction boxes.
1. to recreational facilities; driveways; walkways;
patios, porches and stoops not structurally at-
tached; decks and balconies which are not
bolted to or cantilevered from the main struc-
ture of the Home; boundary and/or retaining
walls; bulkheads; fences; landscaping, sodding,
seeding, shrubs, trees and plantings; subsurface
drainage systems (other than footer drains);
lawn sprinkler systems; off-site improvements,
including streets, sidewalks, adjacent property
and the like; or any other improvements not
part of the Home itself.
2. Loss or damage resulting from, or made worse by:
a. changes in the grading of the property sur-
rounding the Home by anyone except your
Builder or its employees, agents or subcontrac-
tors.
b. changes in grading caused by erosion.
c. modifications or additions to the Home, or
property under or around the Horne, made after
the Effective Date Of Warranty (other than
changes made in order to meet the obligations
of this Limited Warranty).
page 319.5
C, 1996 Harrisburg. PA
Rra. 9/01
WPIC x319
d. intrusion of water into crawl spaces.*
e. the weight and/or performance of any type of
waterbed or any other furnishing which ex-
ceeds the load-bearing design of the Home.
f. the presence or consequence of unacceptable
levels of radon, formaldehyde, carcinogenic
substances or other pollutants and contami-
nants; or the presence of hazardous or toxic
materials resulting in uninhabitability or health
risk within the Home.
g. acts or omissions by you, your agents, employ-
ees, licensees, invitees; accidents, riots, civil
commotion, nuclear hazards, acts of God or na-
ture, fire, explosion, blasting, smoke, water
escape, windstorms, hail, lightning, ice, snow,
falling trees, aircraft, vehicles, flood, mud
slides, sinkholes, mine subsidence, faults, crev-
ices, earthquake, land shock waves or tremors
occurring before, during or after a volcanic
eruption.
h. your failure to perform routine maintenance.
i. your failure to minimize or prevent such loss or
damage in a timely manner.
j. defects in, but not limited to: recreational fa-
cilities; driveways, walkways; patios, porches
and stoops not structurally attached; decks and
balconies which are not bolted to or cantile-
vered from the main structure of the Home;
boundary and/or retaining walls; bulkheads;
fences; landscaping, sodding, seeding, shrubs,
trees and plantings; subsurface drainage sys-
tems (other than footer drains); lawn sprinkler
systems; off-site improvements, including
streets, sidewalks, adjacent property and the
like; or any other improvements not part of the
Home itself
k. defects in detached garages or outbuildings
(except those which contain plumbing, electri-
cal, heating, cooling or ventilating systems
serving the Home, and then only to the extent
where Defects would affect these systems). A
detached garage is one which is constructed on
its own foundation, separate and apart from the
foundation of the Home. A breezeway, fence,
utility line or similar union shall not cause a
garage or outbuilding to be considered at-
tached.
1. negligent maintenance or operation of the
Home and its systems by anyone other than
your Builder or its agents, employees or sub-
contractors.
in. any portion of a Water Supply System, private
or public, including volume and pressure of
water flow.*
n. quality and potability of water.
o. any portion of a Sewage Disposal System, pri-
vate or public, including design.*
p. dampness, condensation or heat build-up
*FHA/VA Homeowners, refer to HUD Addendum. Section V.D.
page 319.6
C`1996 Harrisburg. PA
Rey.-. 9NI1
3
4
5
6
7
8
9.
caused by your failure to maintain proper venti-
lation. *
Failure of your Builder to complete construction of
the Home or any part of the Home on or before the
Effective Date Of Warranty or damages arising
from such failure. An incomplete item is not con-
sidered a Defect, although your Builder may be
obligated to complete such items under separate
agreements between you and your Builder.
Any deficiency which does not result in actual
physical damage or loss to the Home.
Any Consequential Damages.
Personal property damage or bodily injury.
Violation of applicable Building Codes or ordi-
nances unless such violation results in a Defect
which is otherwise covered under this Limited War-
ranty. Under such circumstances, the obligation of
the Warrantor under this Limited Warranty shall
only be to repair the defective warranted portion of
the Home, but not to restore or bring the Home to
conform to code.
Any request for warranty performance submitted to
the Administrator after an unreasonable delay or
later than 30 days after the expiration of the appli-
cable warranty period.
Warranted Defects that you repair without prior
written authorization of the Administrator.
10. Any damages to, or resulting from a swimming pool
whether located within or outside the Home, as a
result of its construction, placement, use, equip-
ment, maintenance, etc.
11. The removal and/or replacement of items specifi-
cally excluded from coverage under this Limited
Warranty, such as landscaping or personal property,
items not originally installed by your Builder, such
as wallpaper, where removal and replacement are
required to execute a repair.
12. Any Defect consisting of, caused by, contributed to,
or aggravated by moisture, wet or dry rot, mold,
mildew, fungus or rust.
13. Sound transmission and sound proofing between
rooms or floor levels.
14. Appliances and Equipment included in the Home
are not warranted under this Limited Warranty, but
may be covered by separate warranties provided by
the manufacturer or supplier. These warranties are
passed on to you by your Builder at closing and are
separate from this Limited Warranty.'
F. Limitation of Liability
1. The Warrantor's liability and obligations are lim-
ited to the repair, replacement or the payment of the
reasonable cost of repair or replacement of war-
ranted items not to exceed an aggregate equal to the
Final Sales Price of the Home as listed on the Ap-
plication for Warranty form or in the absence of an
Application for Warranty form, as otherwise pro-
vided to the Administrator by the Builder. The
choice to repair, replace or make payment is the
Warrantor's.
2. All other warranties, express or implied, including,
but not limited to, all implied warranties of fitness,
merchantability or habitability, are disclaimed and
excluded to the extent allowed by law.
t Homeowners in the State of New York, refer to State of New York Addendum, Section V.B.
zrrrw A I A U... ,. -..C .. .. ill tT nAJ -.-__ r.. .-
The following Warranty Standards are applicable only to warranted items stated in Section II of
this Limited Warranty. Read Section II to determine if the following Warranty Standards apply.'
CATEGORY OBSERVATION ACTION REQUIRED COMMENTS
1. FOUNDATIONS
BASEMENT 1.1 Cracks appear in No action required. The expansion/contraction joint is placed to
control joints. control cracking. This is not a deficiency.
1.2 Pit, depression or areas Builder will correct those areas in In rooms not initially designed as finished
of unevenness in areas which Defect exceeds 1/4 in. within living areas or where a floor or a portion of
designed for living a 32 in. measurement. a floor surface has been designed for
purposes. specific drainage purposes, a slope which
exceeds 1/4 in. within a 32 in. measurement
is not a deficiency.
1.3 Cracks in poured con- Builder will correct any crack Shrinkage cracks are common and should
crete foundation walls. which exceeds 1/8 in. in width. be expected. Surface patching and epoxy
injection are examples of acceptable repair
methods.
1.4 Cracks in block or Builder will correct cracks which Some cracks are common through masonry
veneer wall. exceed 1/4 in. in width. and mortar joints. Cracks 114 in. or less are
considered routine Owner maintenance.
1.5 Leaks resulting in Builder will correct. A one-time occurrence may not indicate a
actual flow or trickling Defect. Owner must maintain proper
of water through wall grading around the Home and maintain any
or floor, causing an surface water control systems installed by
accumulation. Builder. Dampness and condensation are
normal conditions and are not covered by
this Limited Warranty.
1.6 Disintegration of the Builder will correct disintegrated Disintegration caused by erosion due to
concrete floor surface. surfaces caused by improper salt, chemicals, implements used and other
placement of concrete, factors beyond Builder's control is not a
warranted deficiency.
1.7 Cracks in concrete floor Builder will correct so Defect is not Minor impressions in floor covering are
which rupture or signif- readily noticeable when floor not considered significant imperfections.
icantly impair perfor- covering is in place.
mance of floor covering.
1.8 Condensation on walls, No action required. Maintaining adequate ventilation and
joists, support columns moisture control is considered Owner
and other components maintenance.
of basement area.
CRAWL SPACE 1.9 Cracks in poured con- Builder will correct any crack Surface patching and epoxy injection are
crete foundation walls. which exceeds 1/8 in. in width. examples of acceptable repair methods.
Shrinkage cracks of 1/8 in. or less are
common and should be expected.
1.10 Cracks in block or
veneer wall.
Builder will correct cracks greater
than 1 /4 in. in width.
Surface patching and epoxy injection are
examples of acceptable repair methods.
Shrinkage cracks of 1/4 in. or less are
common and should be expected.
1.11 Inadequate ventilation
1.12 Condensation on walls,
joists, support columns
and other components
of the crawl space area.
page 319.7
?t-199e Harrisburg. P.4
Re,. 9101
WNC 1319
Builder will install properly
sized louvers or vents-
Maintaining adequate ventilation and
moisture control, including seasonal
adjustment of vent openings, is considered
Owner maintenance.
No action required. Maintaining adequate ventilation and
moisture control, including seasonal
adjustment of vent openings, is considered
Owner maintenance.
t Homeowners in the State of New York, refer to State of New York Addendum. Section V.B.
The following Warranty Standards are applicable only to warranted items stated in Section II of
this Limited Warranty. Read Section 11 to determine if the following Warranty Standards apply.
CATEGORY OBSERVATION ACTION REQUIRED COMMENTS
FOUNDATIONS r
SLAB Or GRADE 1.13 Cracks appear at control No action required. Expansion/contraction joint is placed to
joints. control cracking. This is not a deficiency.
14 Pits, depressions or areas Builder will correct areas in which
of unevenness in areas Defect exceeds 1/4 in. within a 32 in.
designed for living measurement.
purposes.
1.15 Disintegration of con- Builder will correct disintegrated
crete floor surface. surfaces caused by improper
placement of concrete.
1.16 Crack in concrete floor
which ruptures or signifi-
cantly impairs perfor-
mance of floor covering.
1.17 Cracks in attached
garage slab.
Builder will correct so Defect is not
readily noticeable when floor
covering is in place.
Builder will correct cracks which
exceed 1/4 in. in width or vertical
displacement.
1.18 Cracks in concrete floor Builder will correct cracks which
of unfinished area (no exceed 1/4 in. in width or
floor covering) or in areas vertical displacement.
not designed for living.
1.19 Cracks in visible face of Builder will correct cracks in
foundation. excess of 1 /8 in. in width.
In rooms not initially designed as finished
living areas or where a floor or a portion of
a floor surface has been designed for
specific drainage purposes, a slope which
exceeds 1/4 in. within a 32 in. measurement
is acceptable.
Disintegration caused by erosion due to
salt, chemicals, implements used and other
factors beyond Builder's control is not a
warranted deficiency.
Minor impressions in floor covering are
not considered significant imperfections.
Surface patching and epoxy injections are
examples of acceptable repair methods.
Shrinkage cracks are common and should
be expected.
Surface patching and epoxy injections are
examples of acceptable repair methods.
Shrinkage cracks are common and should
be expected.
Surface patching and epoxy injections are
examples of acceptable repair methods.
Shrinkage cracks are common and should
be expected.
CEILING 2.1 Uneven ceiling. Builder will correct if unevenness Some minor framing imperfections should
exceeds 1/4 in. within a 32 in. be expected.
measurement.
FLOOR 2.2 High and low areas. Builder will correct if high or low Some minor framing imperfections should
areas exceed 1/4 in. within a 32 in. be expected.
measurement.
2.3 Floor squeaks. Builder will correct if caused by a A squeak-proof floor cannot be guaranteed.
defective joist or improperly Lumber shrinkage as well as temperature
installed subfloor. and humidity changes may cause squeaks.
Ro )F 2.4 Split or warped rafters or No action required. Some splitting and warping is normal and
trusses. is caused by high temperature effects on
lumber.
WALL 2.5 Bow or bulge. Builder will correct if bow or bulge Minor framing imperfections should be
exceeds 1/4 in. within 32 in. expected.
horizontal or vertical measurement.
2.6 Out-of-plumb. Builder will correct where out-of- Minor framing imperfections should be
plumb condition exceeds 3/4 in. expected.
within 8 ft. vertical measurement.
page 319.8 2.7 Wall is out-of-square. No action required. A wall out-of-square is not a Defect.
c 1996 Hamburg. PA
Rcv, 9.K11
The following Warranty Standards are applicable only to warranted items stated in Section II of
'this Limited Warranty. Read Section II to determine if the following Warranty Standards apply.
CATEGORY OBSERVATION ACTION REQUIRED COMMENTS
O.
STRUCTURALLY 3.1 Wood twisting, warping
ATTACHED or splitting.
WOOD DECKS
Builder will correct only if due to
improper installation.
Twisting, warping or splitting of wood
deck material is normal due to exposure to
the elements. Owner maintenance is
required.
3.2 Settlement.
3.3 Loose railing or post.
DOOR 3.4 Binds, sticks or does Builder will correct if caused Seasonal changes may cause doors to
not latch. by faulty workmanship or materials. expand and contract, and are usually
temporary conditions.
3.5 Wood door panel No action required. Panels will shrink and expand and
shrinks. may expose unfinished surfaces.
3.6 Warping. Builder will correct warping which Seasonal changes may cause doors to
exceeds 1/4 in., measured vertically, expand and contract, and are usually
horizontally or diagonally. temporary conditions.
3.7 Split in panel. Builder will correct if split allows Splits which do not allow the entrance of
the entrance of elements. elements are considered normal. Owner
maintenance is required.
3.8 Separation between Builder will correct if daylight is Even with properly installed weather
door and weather- visible or if enhance of elements stripping, some movement of the door,
stripping. occurs under normal conditions. when closed, may be expected. Owner
maintenance is required for minor
alterations to adjustable thresholds and
other parts of the door.
3.9 Screen mesh is torn or Builder will correct only if damage Owner is responsible for establishing a
damaged. is documented prior to occupancy. pre-closing walk-through inspection list.
3.10 Overhead garage door Builder will correct garage doors Some entrance of elements can be expected
fails to operate or allows which do not fit or operate properly. and is not considered a deficiency. If Owner
rain or snow to leak installs a garage door opener, Builder is
through. not responsible for operation of door.
Builder will correct slope of deck
which exceeds a ratio of 2 in. in a
10 ft. measurement.
Builder will correct if due to
improper installation.
Some slope is often provided to allow
for water drainage.
Owner maintenance is required.
ROOFING 3.11 Roof and roof flashing Builder will correct if leak occurs No action is required if leak is due to snow
leaks. under normal conditions. or ice build-up, high winds or driving
rains.
3.12 Lifted, torn or curled
shingles.
Builder will correct if due to
poor installation.
Owner maintenance is required.
3.13 Inadequate ventilation
3.14 Water stays in gutters
3.15 Gutter or downspout
leaks.
Builder will provide adequate
ventilation.
Builder will correct to limit standing
water depth at 1 in.
Builder will correct leaks at
connections.
Moisture accumulation in attics which are
not adequately vented is a deficiency. It is
Owner's responsibility to keep existing
vents clear of obstructions to promote
air flow.
Owner is responsible for keeping gutters
and downspouts clean.
Owner- is responsible for keeping gutters
and downspouts clean. Gutters may over-
flow during heavy rains.
page 319.9
;U996 Hwisburg. FA
Rev. 9/01
WPIC 9319
The following Warranty Standards are applicable only to warranted items stated in Section 11 of
this Limited Warranty. Read Section II to determine if the following Warranty Standards apply.
CATEGORY OBSERVATION ACTION REQUIRED COMMENTS
3. EXTERIOR (CON TNUED)
SITE WORK 3.16 Standing water within Builder will correct water which Standing water beyond the 10 ft. perimeter
10 ft. of the foundation. stands for more than 24 hours, or of the foundation is not covered by this
more than 48 hours in swales. Limited Warranty. Owner is responsible for
establishing and maintaining adequate
ground cover.
3.17 Settling of ground If final grading was performed by If settlement does not exceed 6 in., it is
around foundation walls, Builder, he will replace fill in Owner's responsibility to fill affected
utility trenches or other excessively settled areas only once.* areas. The party responsible for establishing
filled areas on property the final grade shall provide for positive
where there has been drainage away from foundation. Owner
excavation and backfill is responsible for establishing and
which affected maintaining adequate ground cover.
foundation drainage.
STRUCTURALLY 3.18 Settlement, heaving or Builder will correct if movement Stoops, porches and patios which are
ATTACHED movement. exceeds 1 in. from the Home for poured separately and simply abut the
STOOP, PORCH stoops, porches and patios which are house are not covered by this Limited
cot PATIO structurally attached. Warranty.
3.19 Concrete splatters on Builder will correct only if damage Owner is responsible for establishing a
adjacent surfaces. is documented prior to occupancy. pre-closing walk-through inspection list.
WALL COVERING 3.20 Entrance of elements Builder will correct entrance of Any separations 3/8 in. or less are
through separations of elements or separations exceeding considered routine Owner maintenance.
siding or trim joints, or 3/8 in. by caulking or other
separation between trim methods.
and surfaces of
masonry or siding.
3.21 Cracks in stucco, cement Builder will correct cracks which Hairline cracks are common.
and plaster surfaces. exceed 1/8 in. in width.
3.22 Siding materials Builder will correct affected area Separated, loose or delaminated siding can
deteriorate, delaminate if due to improper workmanship also be due to improper maintenance.
or come loose. or materials. Wavy siding may be due to temperature
changes and can be expected.
3.23 Paint or stain peels Builder will correct. If 75% of a Some fading is normal and is caused by
or deteriorates. particular wall is affected, entire weathering. Mildew and fungus on siding
wall will be corrected: are caused by climatic conditions and are
considered routine maintenance. Varnish
or lacquer will deteriorate quickly and is
not covered by this Limited Warranty.
3.24 Paint splatters and Builder will correct only if damage Owner is responsible for establishing a
smears on other surfaces. is documented prior to occupancy. pre-closing walk-through inspection list.
3.25 Faulty application of Builder will correct affected area. Some minor imperfections such as over-
paint on wall and trim If greater than 75% of wall spray, brushmarks, etc., are common and
surfaces. or trim piece is affected, entire should be expected.
surface will be corrected.
3.26 Knot holes bleed Builder will correct affected areas Knot holes will be apparent depending on
through paint or stain. where excessive bleeding of the quality of material used.
knots appear.
3.27 Vent or louver leaks. Builder will correct if caused by Properly installed louvers or vents may at
improper installation. times allow rain or snow to enter under
strong wind conditions and is not a
deficiency.
page 319.10
e i9N6 H in ;?bur . rn *FHA/VA Homeowners, refer to HUD Addendum, Section V.D.
The following Warranty Standards are applicable only to warranted items stated in Section It of
this Limited Warranty. Read Section II to determine if the following Warranty Standards apply.
i
CATEGORY OBSERVATION ACTION REQUIRED COMMENTS
3. EXTERIOR (CONTINUTD)
WALL COVERING 3.28 Cracks in masonry, Builder will correct cracks which Some cracks are common through masonry
(CONTINUED) veneer, stone, etc. exceed 1/4 in. in width. and mortar joints. Cracks 1/4 in. or less are
considered routine Owner maintenance.
WINDOWS 3.29 Condensation or frost No action required. Condensation is relative to the quality and
on interior window type of windows. Temperature differences
surface. in high levels of humidity along with indivi-
dual living habits will cause condensation.
3.30 Clouding or conden-
sation between panes
of glass.
3.31 Glass breakage.
3.32 Excessive drafts and
leaks.
Builder will correct only if damage
is documented prior to occupancy.
Builder will correct only if damage
is documented prior to occupancy.
Builder will correct poorly fitted
windows.
Owner is responsible for establishing a
pre-closing walk-through inspection list.
3.33 Difficult to open, close Builder will correct.
or lock.
Owner is responsible for establishing a
pre-closing walk-through inspection list.
Relative to the quality and type of
windows, some drafts are normally
noticeable around windows, especially
during high winds. It may be necessary for
the Owner to have storm windows installed
to provide a satisfactory solution in high
wind areas. All caulking materials expand
and contract due to temperature variation
and dissimilar materials. Maintenance of
weather stripping is Owner's responsibility.
Windows should open, close and lock with
reasonable pressure.
DOORS 4.1 Latch is loose or rattles. No action required. Some minor movement should be
expected.
4.2 Binds, sticks or does Builder will correct if due to
not latch. faulty workmanship and
materials.
4.3 Warping. Builder will correct warping which
exceeds 1/4 in., measured vertically,
horizontally or diagonally.
4.4 Excessive opening at Builder will correct gaps in excess
bottom. of 1-1/2 in. between bottom of
passage door and finished floor or
2 in. between bottom of closet door
and finished floor.
4.5 Rubs on carpet. Builder will correct.
Seasonal changes may cause doors to
expand and contract, and is usually a
temporary condition.
Seasonal changes may cause doors to
expand and contract, and are usually
temporary conditions.
Gaps under doors are intended for air flow.
Builder is not responsible if Owner installs
carpet.
page 319.11
1:1996 Harrisburg. PA
Rev. 9.'AI -
wric" 0319
The following Warranty Standards are applicable only to warranted items stated in Section II of
this Limited Warranty. Read Section II to determine if the following Warranty Standards apply.
CATEGORY OBSERVATION ACTION REQUIRED
COMMENTS
WALLS, CEILINGS, 4.6 Cracks and separations Builder will correct cracks in excess Minor seam separations and cracks, along
SURFACES, FINISHES in drywall, lath or of 1/8 in. in width. Builder will with other slight imperfections, are
& TRIM plaster; nail pops. correct nail pops which have broken common and should be expected. Minor
finished surface. depressions and slight mounds at nail heads
are.not Defects.
4.7 Peeling of wallpaper. Builder will correct if not due to Builder is not responsible for wallpaper
Owner neglect or abuses. installed by Purchaser. Owner is respon-
sible for maintaining adequate ventilation
in areas of high humidity, such as kitchens
and bathrooms.
4.8 Separated seams in Builder will correct if wall surface Minor imperfections can be expected.
wallpaper. is readily visible.
4.9 Lumps, ridges and nail No action required.. Owner should insure that surface to be
pops in wallboard which covered is suitable for installation of wall
appear after Owner has covering.
wall covering installed
by himself or others.
4.10 Surface deficiencies in Builder will correct readily Owner is responsible for establishing a
finished woodwork. apparent splits, cracks, hammer pre-closing walk-through inspection list.
marks and exposed nail heads, only
if documented prior to occupancy.
4.11 Gaps between trim and Builder will correct gaps in excess Some separation due to lumber shrinkage
adjacent surfaces, and of 1/8 in. at trim joints and 1/4 in. is normal and should be expected.
gaps at trim joints. between trim and adjacent
surfaces.
4.12 Cracks in ceramic grout Builder will correct cracks in excess Cracking of grout joints is common and is
joints. of 1/8 in. one time only. considered routine Owner maintenance
unless excessive.
4.13 Ceramic tile cracks or Builder will correct only if docu- Owner is responsible for establishing a
becomes loose. mented prior to occupancy. pre-closing walk-through inspection list.
4.14 Cracking or deterioration No action required. All interior caulking shrinks and deterior-
of caulking. ates. Owner maintenance is required.
4.15 Wall or trim surfaces Builder will correct affected area. Solve minor imperfections such as over-
visible through paint. If greater than 75% of wall, trim spray, brushmarks, etc., are common and
piece, or ceiling is affected, entire should be expected.
surface will be corrected.
page 319.12
r1996 Harrisburg. PA
Rev. 9/01
WPIC #319
The following Warranty Standards are applicable only to warranted items stated in Section 11 of
tl)is Limited Warranty. Read Section II to determine if the following Warranty Standards apply.
CATEGORY OBSERVATION ACTION REQUIRED COMMENTS
• O•
FLOOR COVERING* 4.16 Resilient flooring comes Builder will correct. Owner maintenance is required.
loose at edge.
4.17 Fades, stains or
discolors.
4.18 Premature wearing
of carpet.
4.19 Visible gaps at carpet
seams.
4.20 Carpet becomes loose or
buckles.
4.21 Gaps at seams of resilient
flooring.
4.22 Fastener pops through
resilient flooring.
4.23 Depressions or ridges in
resilient flooring at
seams of sub-flooring.
4.24 Cuts and gouges in any
floor covering.
4.25 Hollow sounding marble
or tile.
Builder will correct stains or spots Fading is not a deficiency. Owner is
only if documented prior to responsible for establishing a pre-closing
occupancy. walk-through inspection list.
No action required. Excessive wear in high-traffic areas
such as entryways and hallways is normal.
Wearability is directly related to
quality of carpet.
Builder will correct gaps. Seams will be apparent. Owner
maintenance is required.
Builder will correct. Some stretching is normal. Owner should
exercise care in moving furniture.
Builder will correct gaps of similar Minor gaps should be expected.
materials in excess of 1/8 in., and
3/16 in. where dissimilar materials
abut.
Builder will correct where fastener
has broken through floor
covering.
Sharp objects such as high heels, table and
chair legs, can cause similar problems, and
are not covered by this Limited Warranty.
Builder will correct depressions
or ridges which exceed 1/8 in. in
height or depth.
Builder will correct only if
documented prior to occupancy
No action required.
This is determined by placing a 6 in.
straight edge over ridge or depression,
with 3 in. on either side, and measuring
height or depth at sub-flooring seam.
Owner is responsible for establishing a
pre-closing walk-through inspection list.
Hollow sounding marble or tile is not a
deficiency of construction and is not
covered under this warranty.
Sua-FLOORING 4.26 Loose sub-flooring. Builder will correct if due to a Lumber shrinkage as well as temperature
defective joist or improper fastening. and humidity changes may cause loose
sub-flooring.
page 319.13
01996 Harrisburg. PA *FHA/VA Homeowners, refer to HUD Addendum, Section V.D.
Re,. 9101
WPIC 4.119
The following Warranty Standards are applicable only to warranted items stated in Section II of
this Limited Warranty. Read Section II to determine if the following Warranty Standards apply.
CATEGORY OBSERVATION ACTION REQUIRED COMMENTS
5. MECHANICAL
ELECTRICAL 5.1 Circuit breakers trip Builder will correct if tripping Ground Fault Circuit Interrupters (GFCI)
excessively. occurs under normal usage. are intended to trip as a safety factor.
5.2 Outlets, switches or Builder will correct if caused by Owner should exercise routine care and
fixtures malfunction. defective workmanship or maintenance. Replacement of light bulbs
materials. is Owner's responsibility.
HEATING & COOLING 5.3 Condensation lines clog No action required. Condensation lines will clog under normal
under normal use. conditions. Continued operation of drain
line requires Owner maintenance.
5.4 Noisy duct work.
Builder will correct oil canning
noise if caused by improper
installation.
When metal heats and cools, ticking and
cracking may occur and are not covered
by this Limited Warranty.
5.5 Insufficient heating.
5.6 Insufficient cooling.
5.7 Refrigerant line leaks.
Builder will correct if heating
system cannot maintain a 70 degree
Fahrenheit temperature, under normal
operating and weather conditions.
Temperature shall be measured at a
point 5 ft. above center of floor in
affected area. On extremely cold
days, a 6 degree difference between
actual inside temperature and thermo-
stat setting is acceptable. All rooms
may vary in temperature by as much
as 4 degrees.
Builder will correct if cooling
system cannot maintain a 78 degree
Fahrenheit temperature, under normal
operating and weather conditions.
Temperature shall be measured at a
point 5 ft. above center of the floor
in the affected room. On excessively
hot days, where outside temperature
exceeds 95 degrees Fahrenheit, a
difference of 17 degrees from outside
temperature will be difficult to
maintain. All rooms may vary in
temperature by as much as 4 degrees.
Builder will correct.
Orientation of the Home, location of rooms
and location of vents will also provide
a temperature differential. There may be
periods when outdoor temperature falls
below design temperature thereby lowering
temperature in the Home. Certain aspects of
the Home including, but not limited to,
expansive stairways, open foyers,
sunrooms or cathedral ceilings may cause
abnormal variation from these Standards
and are not covered by this Limited
Warranty.
Orientation of the Home, location of rooms
and location of vents will also provide a
temperature differential. There may be
periods when outdoor temperature rises
above design temperature thereby raising
temperature in the Home. Certain aspects of
the Home including, but not limited to,
expansive stairways, open foyers,
sunrooms or cathedral ceilings may cause
abnormal variation from these Standards
and are not covered by this Limited
Warranty.
Owner maintenance is required on the
system.
PLUMBING* 5.8 Pipe freezes and bursts. Builder will correct if due to Proper winterization of pipes is considered
faulty workmanship or materials. routine maintenance and Owner should
maintain suitable temperatures inside the
Home.
5.9 Noisy water pipe
Builder will correct hammering
noise if caused by improper
installation.
Some noise can be expected due to flow
of water and pipe expansion. This is not a
Defect_
5.10 Plumbing fixtures,
appliances and trim
fittings leak or malfunction.
Builder will correct if due to
faulty workmanship and materials.
Owner maintenance is required. Scratches,
tarnishing or marring must be noted on a
pre-closing walk-through inspection list.
page 319.14
,09% Harrisburg- PA *FHA/VA Homeowners, refer to HUD Addendum, Section V.D.
Rec. 9101
WPIC #314
The following Warranty Standards are applicable only to warranted items stated in Section II of
this Limited Warranty. Read Section II to determine if the following Warranty Standards apply.
CATEGORY OBSERVATION ACTION REQUIRED COMMENTS
6. SPECIALTIES
BATHROOM I 6.1 Cabinet separates from
& KITCHEN wall or ceiling.
6.2 Crack in door panel.
6.3 Warping of cabinet door
or drawer front.
Builder will correct separation in
excess of 1/4 in.
Builder will correct only if
documented prior to occupancy.
Builder will correct if warp exceeds
3/8 in. as measured from cabinet
frame.
Some separation is normal. Caulking is an
acceptable method of repair.
Owner is responsible for establishing a
pre-closing walk-through inspection list.
Seasonal changes may cause warping and
may be a temporary condition.
6.4 Doors or drawers do not
operate.
6.5 Chips, cracks, scratches
on countertop, cabinet
fixture, fitting or
appliance.
6.6 Delamination of
countertop or cabinet.
6.7 Cracks or chips in
fixture.
6.8 Defective fixture,
fitting or appliance.
Builder will correct.
Builder will correct only if
documented prior to occupancy
Builder will correct only if
documented prior to occupancy
Builder will correct only if
documented prior to occupancy
Builder will correct.
Owner maintenance is required.
Owner is responsible for establishing a
pre-closing walk-through inspection list.
Owner is responsible for establishing a
pre-closing walk-through inspection list.
Owner is responsible for establishing a
pre-closing walk-through inspection list.
Owner maintenance is required.
CHIMNEY 6.9 Exterior and interior Builder will correct cracks in
& FIREPLACE masonry veneer cracks. excess of 1/4 in. in width.
6.10 Firebox color is changed; No action required.
accumulation of residue
in chimney or flue.
6.11 Chimney separates from Builder will correct separation in
the Home. excess of 1/2 in. within 10 ft.
6.12 Smoke in living area
6.13 Water infiltration into
firebox from flue.
6.14 Firebrick or mortar joint
cracks.
Builder will correct if caused by
improper construction or
inadequate clearance.
No action required.
No action required.
Some cracks are common in masonry and
mortar joints. Cracks 1 /4 in. in width or
less are considered Owner maintenance.
Owner maintenance is required.
Newly built chimneys will often incur
slight amounts of separation.
Temporary negative draft situations can be
caused by high winds; obstructions such as
tree branches too close to the chimney;
the geographic location of the fireplace; or
its relationship to adjoining walls and roof.
In some cases, it may be necessary to open
a window to create an effective draft. Since
negative draft conditions could be temp-
orary, it is necessary that Owner substan-
tiate problem to Builder by constructing a
fire so the condition can be observed.
A certain amount of rainwater can be
expected under certain conditions.
Intense heat may cause cracking.
INSULATION 6.15 Air infiltration around No action required. Air flow around electrical boxes is
electrical receptacles. normal and is not a deficiency.
page 319.15
C•1996 Humisburg, PA
Rc". 9,n1
wpic.4.319
The following Warranty Standards are applicable only to warranted items stated in Section II of
this Limited Warranty. Read Section II to determine if the following Warranty Standards apply.
CATEGORY OBSERVATION ACTION REQUIRED COMMENTS
B. SYSTEMS - YEARS 1 AND 2
ELECTRICAL B.1 Wiring fails to carry Builder will correct if failure is due Switches, outlets and fixtures are applicable
specified load. to improper installation or materials. to Year 1 Coverage Only.
HEATING B.2 Duct work separates. Builder will correct.
& COOLING
Owner maintenance is required.
PLUMBING B.3 Pipe leaks. Builder will correct. Condensation on pipes does not constitute
leakage. Faulty faucets, valves, joints and
fittings are applicable to Year 1 Coverage
Only.
B.4 Water supply stops.
Builder will correct if due to faulty
workmanship or materials inside
the Home.
Drought or causes other than faulty
workmanship and materials will not be
covered under this Limited Warranty.
B.5 Clogged drain or sewer
Builder will correct clog within
structure caused by faulty
workmanship or materials.
Clogs and stoppages beyond the exterior
wall are not covered by this Limited
Warranty. Routine Owner maintenance
and proper use is required.
page 319.16
0,1996 Harrisburg, PA
Rev. 9/01
WPIC #319
The fotio-wing Warranty Standards are applicable only to warranted items stated in Section lI of
t6it Limited Warranty. Read Section II to determine if the following Warranty Standards apply.
CATEGORY OBSERVATION ACTION REQUIRED
MAJOR STRUCTURAL
DEFECTS
COMMENTS
C.1 Major Structural Defects. The criteria for establishing the existence
of a Major Structural Defect is set forth in
Section I.B.15 of this Limited Warranty
Agreement.
The Warrantor will correct Major
Structural Defects, limited to such
actions as are necessary to restore
the load-bearing capability of the
component(s) affected by a Major
Structural Defect.
page 319.17
V996 Harrisburg. PA
Rea,. 9/01
WPIC 4319
page 319.18
V.-1996 Harrisburg. PA
Re'. 9/01
WPIC #319
A. Notice to Warrantor in Years 1 & 2
1. If a Defect occurs in Years I and 2, you must notify
your Builder in writing. Your request for warranty per-
formance should clearly describe the Defect(s) in
reasonable detail. D.
2.
3
4.
B.
Request for warranty performance to your Builder
does not constitute notice to the Administrator, and it
will not extend applicable coverage periods. You must
provide the Warrantor with reasonable weekday access
during normal business hours in order to perform its
obligations.
If a request for warranty performance to your Builder
does not result in satisfactory action within a reason-
able time, written notice must be given to RWC,
Administrator, 5300 Derry Street, Harrisburg, Pennsyl-
vania 17111-3598, Attn: Warranty Resolution
Department. This notice should describe each item in
reasonable detail and should be forwarded by certified
mail, return receipt requested.
Please note that a written request for warranty perfor-
mance must be mailed to RWC and postmarked no
later than thirty (30) days after the expiration of the
applicable warranty period. For example, if the item is
one which is warranted by your Builder during your
second year of coverage, a request for warranty per-
formance must be mailed to RWC and postmarked no
later than thirty (30) days after the end of the second
year to be valid.
Notice to Warrantor in Years 3-10
If a Defect related to a warranted MSD occurs in Years
3 through 10 of this Limited Warranty, you must notify
the Administrator to review the item. All such notices
must be presented in writing to RWC, Administrator,
5300 Derry Street, Harrisburg, Pennsylvania 17111-
3598, Attn: Warranty Resolution Department, by
certified mail, return receipt requested, within a rea-
sonable time after the situation arises. Any such notice
should describe the condition of the MSD in reason-
able detail. Requests for warranty performance
postmarked more than thirty (30) days after the expira-
tion of the term of this Limited Warranty will not be
honored.
C. Purchaser's Obligations
1. Your notice to the Administrator must contain the
following information:
a. Enrollment # and Effective Date Of Warranty;
b. Your Builder's name and address;
c. Your name, address and phone number (including
home and work numbers);
d. Reasonably specific description of the ,warranty
item(s) to be reviewed;
e. A copy of any written notice to your Builder.
f. Photograph(s) may be required.
2. You have an obligation to cooperate with the
Administrator's mediation, inspection and investiga-
tion of your warranty request. From time to time, the
Administrator may request information from you re-
garding an alleged defect. Failure by you or your
appointed representative to respond with the requested
information within thirty (30) days of the date of the
Administrator's request can result in the closing of
your warranty file.
Mediation and Inspection
Within thirty (30) days following the Administrator's receipt
of proper notice of request for warranty performance, the Ad-
ministrator may review and mediate your request by
communicating with you, your Builder and any other indi-
viduals or entities who the Administrator believes possess
relevant information. If, after thirty (30) days, the Administra-
tor has not been able to successfully mediate your request, or
at any earlier time when the Administrator believes that your
Builder and you are at an impasse, then the Administrator will
notify you that your request has become an Unresolved War-
ranty Issue. At any time following the receipt of proper notice
of your request for warranty performance, the Administrator
may schedule an inspection of the item. You must provide the
Administrator reasonable access for any such inspection as
discussed in Section IV.E.2. The Administrator, at its discre-
tion, may schedule a subsequent inspection to determine
Builder compliance.
When a request for warranty performance is filed and the
deficiency cannot be observed under normal conditions, it
is your responsibility to substantiate that the need for
warranty performance exists including any cost involved.
If properly substantiated, you will be reimbursed by the
Warrantor.
E. Arbitration
1. You begin the arbitration process by giving the Ad-
ministrator written notice of your request for
arbitration of an Unresolved Warranty Issue. Within
twenty (20) days after the Administrator's receipt of
your notice of request for arbitration, any Unresolved
Warranty Issue that you have with the Warrantor shall be
submitted to an independent arbitration service upon
which you and the Administrator agree. This binding
arbitration is governed by the procedures of the Federal
Arbitration Act, 9 U.S.C. 1 et. seq. If you submit a
request for arbitration, you must pay the arbitration fees
before the matter is sub-mitted to the arbitration service.
After arbitration, the Arbitrator shall have the power to
award the cost of this fee to any party or to split it among
the parties to the arbitration. The arbitration shall be
conducted in accordance with this Limited Warranty and
the arbitration rules and regulations to the extent that
they are not in conflict with the Federal Arbitration Act.
Within one (1) year after an arbitration award, either
party may apply to the U.S. District Court where the
Home is situated to confirm the award. The Admini-
strator's receipt of a written request for arbitration in
appropriate form shall stop the running of any statute
of limitations applicable to the matter to be arbitrated
until the Arbitrator renders a decision. The decision of
the Arbitrator shall be final and binding upon all par-
ties.!
Since this Limited Warranty provides for mandatory
binding arbitration of Unresolved Warranty Issues, if
any party commences litigation in violation of this
t Homeowners in the State of New York, refer to State of New York Addendum, Section V.B.
page 319.19
'O1996 Harrisburg. PA
Rev. 9/01
wPIC #319
Limited Warranty, such party shall reimburse the other
parties to the litigation for their costs and expenses,
including attorney fees, incurred in seeking dismissal
of such litigation.*
In Years 1 & 2, the Builder shall have sixty (60) days
from the date the Administrator sends the Ar-bitrator's
award to the Builder to comply with the Arbitrator's
decision. In Years 3-10, the Warrantor shall have sixty
(60) days from the date the Administrator receives the
Arbitrator's award to comply with the Arbitrator's de-
cision. Warranty compliance will begin as soon as
possible and will be completed within the sixty-day
compliance period with the exception of any repair
that would reasonably take more than sixty (60) days
to complete, including, but not limited to, repair de-
layed or prolonged by inclement weather. The
Warrantor will complete such repair or replacement as
soon as possible without incurring overtime or week-
end expenses.
You may request a compliance arbitration within
twenty (20) days after the sixty-day compliance period
has expired by giving the Administrator written notice
of your request. You must pay the fees for the compli-
ance arbitration prior to the matter being submitted to
the arbitration service.
2. You must provide the Warrantor with reasonable
weekday access during normal business hours in order
to perform its obligations. Failure by you to provide
such access to the Warrantor may relieve the Warran-
tor of its obligations under this Limited Warranty. If
your Builder does not fulfill its obligations under this
Limited Warranty, the Admini- strator will process the
request for warranty performance as described in this
Limited Warranty and subject to the provisions in Sec-
tion IV.F.
F. Conditions of Warranty Performance
1. When your request for warranty performance is deter-
mined to be a warranted issue, the Warrantor reserves
the right to repair or replace the warranted item, or to pay
you the reasonable cost of repair or replacement.
2. In Years I and 2, if your Builder defaults in its war-
ranty obligations, the Administrator will process the
request for warranty performance provided you pay a
warranty service fee of $250 for each request prior to
repair or replacement.***
3
4.
5
In Years 3 through 10 you must pay the Administrator
a warranty service fee of $500 for each request.**'
If the Administrator elects to award you cash rather
than repair or replace a warranted item, the warranty
service fee will be subtracted from the cash payment.
If the Warrantor pays the reasonable cost of repairing a
warranted item, the payment shall be made to you and to
any mortgagee or mortgagee's successor as each of your
interests may appear; provided that the mortgagee has
notified the Administrator in writing of its security in-
terest in the Home prior to such payment. Warrantor
shall not have any obligation to make payment jointly to
the Purchaser and mortgagee where the mortgagee has
not notified your Builder or the Administrat
of its security interest in the Home prior to such pay-
ment. Any mortgagee shall be completely bound by any
mediation or arbitration relating to a request for war-
ranty performance between you and the Warrantor.*
6. Prior to payment for the reasonable cost of repair or
replacement of warranted items, you must sign and de-
liver to the Builder or the Administrator, as applicable,
a full and unconditional release, in recordable form, of
all legal obligations with respect to the warranted De-
fects and any conditions arising from the warranted
items.
7. Upon completion of repair or replacement of a war-
ranted Defect, you must sign and deliver to the Builder
or the Administrator, as applicable, a full and uncondi-
tional release, in recordable form, of all legal
obligations with respect to the Defect and any condi-
tions arising from the situation. The repaired or
replaced warranted item will continue to be warranted
by this Limited Warranty for the remainder of the ap-
plicable period of coverage.
8. If the Warrantor repairs, replaces or pays you the rea-
sonable cost to repair or replace a warranted item, the
Warrantor shall be subrogated to all your rights of re-
covery against any person or entity. You mast execute
and deliver any and all instruments and papers and
take any and all other actions necessary to secure such
rights, including, but not limited to, assignment of pro-
ceeds of any insurance or other warranties to the
Warrantor. You shall do nothing to prejudice these
rights of subrogation.
9. Any Warrantor obligation is conditioned upon your
proper maintenance of the Home, common elements
and grounds to prevent damage due to neglect, abnor-
mal use or improper maintenance.
10. Condominium Procedures:
a. In the case of common elements of a condo-
minium, at all times, owner(s) of each unit
affected by the common elements in need of war-
ranty performance shall each be responsible to
pay the warranty service fee ($250 in Years 1 and
2, $500 in Years 3 through 10) for each request
for warranty performance.**
b. If a request for warranty performance under this
Limited Warranty involves a common element in a
condominium, the request may be made only by
an authorized representative of the condominium
association. If the Builder retains a voting interest
in the association of more than 50%, the request
may be made by unit owners representing 10% of
the voting interests in the association.
c. If a request for warranty perfonnance under this
Limited Warranty involves a common element af-
fecting multiple units, and all affected units are
not warranted by the RWC Warranty Program, the
Insurer's liability shall be limited to only those
units warranted by the RWC Warranty. The limit
of liability shall be prorated based upon the num-
ber of units warranted by this Limited Warranty.
*FHANA Homeowners, refer to HUD Addendum, Section V.D.
or in writing *Homeowners in Maryland, refer to Maryland Addendum, Section V.E.
*Homeowners in Newark, Delaware, refer to Newark, Delaware, Addendum. Section VA
page 3]9.20
gr1996 Harrisburg. PA
Rea. 9101
WFIC 4319
A. Newark, Delaware, Addendum
The warranty service fee as described in Sections
IV.F.2 and IV.F.3 will be waived for homes built
in the city of Newark, Delaware.
B. State of New York Addendum
2.
3
Except as expressly provided in this Addendum, the
warranties and rights listed herein are in addition to,
and are not exclusive of, any warranties or rights
listed in this Limited Warranty.
Appliances and Items of Equipment - Subject
to other terms and conditions listed in this Limited
Warranty, the exclusion concerning deficiencies in
Appliances and Items of Equipment described in
Section II.E.14 of this Limited Warranty shall not
apply during the first two (2) years of the warranty
term wherever (i) such appliances and items of
equipment are components of the cooling, ventilat-
ing, heating, electrical or plumbing systems; and (ii)
the deficiencies in such fixtures, appliances or items
of equipment are the result of defective installation
by your Builder.
Standards - Section III- If the statutes of the
State of New York provide greater coverage than
the provisions of this Limited Warranty, those pro-
visions shall modify the warranty to allow for the
greater coverage.
Alternative Dispute Resolution - When making
a request for warranty performance pursuant to Sec-
tion IV.E. of this Limited Warranty, you have no
obligation to submit to binding arbitration, nor do
you have to pay any fee or charge for participation
in non-binding arbitration or any mediation process
concerning your request. However, any Unresolved
Warranty Issues must be submitted to arbitration
before a legal proceeding may be commenced. Fur-
ther, if an Owner resorts to litigation, the rights and
obligations imposed by Section IV.E shall apply to
such litigation.
C. State of Indiana Addendum
written warranty, whichever is less.
2. YEARS 3 AND 4 COVERAGE ONLY - During the third
and fourth year following the Effective Date Of
Warranty as specified on the Application For War-
ranty form, and subject to the terms and conditions
listed in this Limited Warranty, your home will be
free from Defects caused by poor workmanship and
materials in its roof and roof systems.
D. HUD Addendum (Applicable to VA/FHA
Financed Homes only)
2
3
The warranties and rights listed above are in addition to,
and are not exclusive of, any warranties listed in this book.
Notwithstanding anything contained in the attached
printed form of the RWC Limited Warranty, this Limited
Warranty shall include the following protection per Sec-
tion II.C, and is amended to read as follows:
Two YEAR COVERAGE - Commencing on the Ef-
fective Date of this Limited Warranty as specified
on the Application For Warranty form, and subject
to the terms and conditions listed herein, your
Builder warrants that for a period of two (2) years
your Home will be free from Defects due to non-
conformity with the Warranty Standards set forth in
Section III of this Limited Warranty. With respect
to fixtures, appliances and items of equipment, the
Warranty is for one (1) year or the manufacturer's
Section I.B.12 Effective Date Of Warranty -
The following language is substituted: The Effec-
tive Date Of Warranty will be the date on which
closing or settlement occurs in connection with the
initial sale of the Home. In no event will the Effec-
tive Date Of Warranty be later than the date of FHA
endorsement of your Mortgage on the Home.
Section I.B.15 Major Structural Defects - The
following language is substituted for a.c.: A Major
Structural Defect is actual physical damage to the
designated load-bearing portions of a home caused
by failure of such load-bearing functions to the ex-
tent that the home becomes unsafe, unsanitary, or
otherwise unlivable. The following language is
added: Delamination or rupture of roof sheathing
shall be deemed a Major Structural Defect in need
of warranty performance.
Section II.C.1 One Year Coverage - The follow-
ing language is added: Notwithstanding anything to
the contrary contained in this Limited Warranty,
during the first year of coverage, your Builder will
repair or restore the reliable function of Appliances
and Equipment damaged during installation or im-
properly installed by your Builder. In addition, your
Builder will correct Construction Deficiencies in
workmanship and materials resulting from the fail-
ure of the Home to comply with standards of
quality as measured by acceptable trade practices.
Construction Deficiencies are Defects (not of a
structural nature) in the Home that are attributable
to poor workmanship or to the use of inferior mate-
rials which result in the impaired fi?nctioning of the
Home or some part of the Horne. Defects resulting
from your abuse or from normal wear and tear are
not considered Construction Deficiencies.
Section II.C.4 Condominium Coverage-The fol-
lowing language is substituted: The Limited
Warranty shall only apply to warranted common
elements which are those portions of the defined
electrical, heating, ventilating, cooling, plumbing
and structural systems which serve two (2) or more
residential units and are contained wholly within a
residential structure that, if defective, would consti-
tute a health or safety condition for the occupants.
Examples of common elements which are covered by
this Limited Warranty are hallways, meetings rooms,
stairwells and other spaces wholly within the resi-
dential structure serving two (2) or more units: and
page 319.21
iC-1996 Harrisburg. PA
Rev. 9101
WPIC 9319
structurally attached balconies, arches and decks.
Examples of common elements which are not cov-
ered under this Limited Warranty are club houses,
recreational buildings and facilities, walkways, exte-
rior structures, or any other non-residential structure
which is part of the condominium.
5. Section II.C - The following coverage is added for
the State of Colorado ONLY: The builder's war-
ranty for basement slabs in the State of Colorado is
extended from the first through the fourth year.
6. Section II.D - The following statement is added:
This agreement is non-cancelable by the Warrantor.
7. Section II.D.9 is deleted.
8
9
10
11
12.
13.
14.
Section II.E.Ld - The following language is sub-
stituted: Loss or damage caused by soil movement,
including subsidence, expansion or lateral move-
ment of the soil which is covered by any other
insurance or for which compensation is granted by
state legislation.
Section II.E.Le-the following language is substi-
tuted: resulting directly or indirectly from flood,
waves, tidal water, overflow of a body of water, or
spray from any of these (whether or not driven by
wind), water which backs up from sewers or drains,
changes in the water table which were not reason-
ably foreseeable, wetlands, springs or aquifers.
Surface water and underground water which cause
an unforeseeable hydrostatic condition with result-
ant damage to the structure are covered.
Section II.E.2.d is deleted.
Section II.E.2.m - The following language is sub-
stituted: any portion of a public Water Supply
System, including volume and pressure of water
flow.
Section II.E.2.o - The following language is sub-
stituted: any portion of a public Sewage Disposal
System, including design.
Section II.E.2.p. - exclusion is deleted.
Section II.E.5-The following language is substi-
tuted: Consequential Damages to personal property
are excluded: Consequential Damages to real prop-
erty as a result of a defect or repair of a defect are
covered.
15. Section III.A
a. SITE WORK - The following language is sub-
stituted:
(1) 3.17 (Action Required) If final grading was
performed by the Builder, he will replace fill in
excessively settled areas.
b. FLOOR COVERING - The following language is
added:
(1) 4.26 (Observation) Gaps or cracks between
finished floor boards. (Action Required)
Builder will correct gaps or cracks which ex-
ceed 1/8 in. in width. (Comments) Finished
wood floors expand and contract due to humid-
ity changes in your home. Cracks and gaps
which shrink and disappear in non-heating sea-
sons are considered normal.
(2) 4.27 (Observation) Cupping, crowning or
loose finished floor boards. (Action Required)
Builder will correct only if caused by a defect
in installation. (Comments) Finished wood
flooring cups from gaining or losing moisture
on one side faster than the other. Some cupping
and crowning should be considered normal due
to growth rings in the tree and the part of the
tree used. The Builder is not responsible for
natural properties of the product, or for cli-
matic conditions and personal living habits
which can affect moisture content of floor
boards. Cupping or crowning action may have
loosened nails or adhesive. Owner is respon-
sible if condition is caused by conditions
beyond Builder's control.
(3) 4.28 (Observation) Ceramic tile cracks or loos-
ens. (Action Required) Builder will correct only
if documented prior to occupancy. (Comments)
Owner is responsible for establishing a pre-clos-
ing walk-through inspection list.
C. PLUMBING - The following language is added:
5.11 (Observation) Septic system fails. (Ac-
tion Required) Builder will correct if damage
is due to poor workmanship or materials, which
are not in conformance with Sewage Enforce-
ment Officer's instructions as per design and
installation only. (Comments) Builder is re-
quired to abide by state or local requirements
for the installation of on-site sewage disposal
system. Any deficiency or failure which occurs
or is caused by a condition other than faulty
workmanship or materials, such as design, is
not covered by this Limited Warranty. Owner
is responsible for routine maintenance of sys
tem, which may include, but not be limited to:
pumping the septic tank; adding chlorine to a
chlorinator; and refraining from driving or
parking vehicles or equipment on the system.
Damages caused by freezing, soil saturation,
underground springs, water run-off, excessive
use and an increase in level of water table are
among causes not covered by this Limited
Warranty.
16. Section III.B.6-The following language is added:
(Observation) Septic system fails. (Action Re-
quired) Builder will correct if damage is due to
poor workmanship or materials, which are not in
confonmance with Sewage Enforcement Officer's
instructions as per design and installation only.
(Comments) Builder is required to abide by state or
local requirements for the installation of on-site
sewage disposal system. Any deficiency or failure
which occurs or is caused by a condition other than
faulty workmanship or materials, such as design, is
not covered by this Limited Warranty. Owner is
responsible for routine maintenance of system,
which may include, but not be limited to: pumping
the septic tank; adding chlorine to a chlorinator; and
17
18
refraining from driving of parking vehicles or
equipment on the system. Damages caused by
freezing, soil saturation, underground springs, water
run-off, excessive use and an increase in level of
water table are among causes not covered by this
Limited Warranty.
Section IV.E.1 Arbitration - Because HUD does
not require binding arbitration, the following is de-
leted: Since this Limited Warranty provides for
mandatory binding arbitration of disputes, if any
party commences litigation in violation of this Lim-
ited Warranty, such party shall reimburse the other
parties to the litigation for their costs and expenses,
including attorney fees, incurred in seeking dis-
missal of such litigation.
Section IV.F.2, F.3, and F.10.a - The following
language is substituted: In the first two (2) years, if
your Builder does not fulfill its obligations under
this Limited Warranty, the Insurer will be respon-
sible for your Builder's obligations, subject to a
one-time warranty service fee of $250. The
Insurer's liability in Years 3 through 10 under this
Limited Warranty is subject to a warranty service
fee of $250 per request for warranty performance.
In each instance, you must pay the fee. prior to the
Insurer's repair or replacement. In the event of pay-
ment, the fee will be subtracted from the cash
payment. In the case of the common elements of a
condominium, the warranty service fee shall be
$250 per home affected by each common element in
need of service, limited to a maximum of $5,000
per free standing structure.
19. Section IV.F.5 - The following language is
added: Where a warranted Defect is determined to
exist and where the Warrantor elects to pay the rea-
sonable cost of repair or replacement in lieu of
perfonning such repair or replacement, the cash offer
must be in writing. You will be given two (2) weeks to
respond. Cash offers over $5,000 are subject to an on-
site review by a HUD approved fee inspector
(inspection costs will be paid by the Warrantor) un-
less:
a. the cash offer is made pursuant to a binding bid
by an independent third party contractor, which
will accept an award of a contract from you
pursuant to such bid;
b. payment is being made in settlement of legal
action;
c. you are represented by legal counsel.
E. Maryland Addendum
You should contact the Administrator personally to
verify the existence of your Warranty. Further, you
should report any Warranty problems, which are not
promptly resolved by your Builder, to the Adminis-
trator.
1. Section IV.F.2 and IV.F.3 are not applicable for
the state of Maryland.
RESIDENTIAL WARRANTY CORPORATION
1,1996 HaTTMUTg. PA
Rev. 9/01
wPIC x] 19
E?7IBIT
October 9, 2006
Samuel L. Andes
Attorney At Law
P.O. 168
525 North Twelfth Street
Lemoyne, PA 17043
RE: Kelly Litigation
Dear Mr. Andes,
Enclosed please find our signed Petition to Compel Arbitration as requested.
We will look forward to hearing from you with further information as it relates to this matter.
Sincerely,
Home Designs nli ' ed, LLC
Denise P. Thompson
Cc: File
P.O. Box 387, New Kingstown, PA 17072.Office 717-960-0295 • Fax 717-960-9744
HDU @ HomeDesignsUnlimited.com
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BERNARD V. KELLY, JR., and
MICHELE A. KELLY,
Plaintiffs
VS.
HOME DESIGNS UNLIMITED, LLC.,
Defendant
OCT I
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2006-3245 CIVIL TERM
RULE TO SHOW CAUSE
A%%
Y
AND NOW this 10 day of 0 (-Vo\a e..r , 2006, upon
consideration of Defendant's Petition to Compel Arbitration, a Rule is hereby issued upon
the Plaintiffs, to show cause, if any they have, why this matter should not be submitted to
arbitration in accordance with said Petition.
The Rule shall be served upon Plaintiffs' counsel of record and is returnable Z.?
days from date of service.
BY THE COURT,
Distribution:
,fames D. Bogar, Esquire (Attorney for Plaintiff)
1 West Main Street, Shiremanstown, PA 17011
.Samuel L. Andes, Esquire (Attorney for Defendant)
P.O. Box 168, Lemoyne, PA 17043
f
I Z • II tiv OZ 130 40DZ
3a JO
301±0-031H
BERNARD V. KELLY, JR., and ) IN THE COURT OF COMMON
MICHELE A. KELLY, ) PLEAS OF CUMBERLAND
Plaintiffs ) COUNTY, PENNSYLVANIA
vs. ) CIVIL ACTION - LAW
HOME DESIGNS UNLIMITED, LLC., ) NO. 2006-3245 CIVIL TERM
Defendant )
PRAECIPE
TO THE PROTHONOTARY:
Please withdraw the Preliminary Objections previously filed in this matter on behalf
of the Defendant.
Samu L. Andes, squire
Attorney for Defendant
Supreme Court ID # 17225
525 North 12`h Street
P.O. Box 168
Lemoyne, PA 17043
(717) 761-5361
C7 C D
17 Y, C-)
Y' CO
BERNARD V. KELLY, JR., and
MICHELE A. KELLY,
Plaintiffs
vs.
HOME DESIGNS UNLIMITED, LLC.,
Defendant
NOTICE
TO PLAINTIFFS NAMED HEREIN:
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2006-3245 CIVIL TERM
YOU ARE HEREBY NOTIFIED TO RESPOND TO THE ENCLOSED ANSWER AND
NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT
JUDGMENT MAY BE ENTERED AGAINST YOU.
Date: 3 4)4 a
w"t ? L 0
Samuel L. An es
Attorney for Defendant
Supreme Court ID 17225
525 North 12th Street
Lemoyne, PA 17043
(717) 761-5361
BERNARD V. KELLY, JR., and
MICHELE A. KELLY,
Plaintiffs
vs.
HOME DESIGNS UNLIMITED, LLC.,
Defendant
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2006-3245 CIVIL TERM
ANSWER AND NEW MATTER OF DEFENDANT HOME DESIGNS UNLIMITED, LLC.
AND NOW comes the above-named Defendant, by its attorney, Samuel L. Andes, and
makes the following Answer, with New Matter, to Plaintiffs' Complaint:
1. Admitted.
2. Admitted.
3. Admitted. However, by way of further answer, Defendant states that, at the time
the parties entered into the agreement, they discussed a warranty program offered by
Residential Warranty Corporation (hereinafter "RWC") which the Plaintiffs later accepted.
Defendant incorporates herein by reference the averments set out in its New Matter.
4. Admitted. However, by way of further answer, the same paragraph provides:
...... Contractor agrees to provide Buyer with the list of warrantable and non-warrantable
items. The Contractor makes, and there exists; no other warranties, written or implied,
concerning the contract work or any other subject matter of this agreement." Defendant
incorporates herein by reference the averments set out in its New Matter.
5. Denied. Plaintiffs complained about water problems on their lot which were not
caused by any of Defendant's work and were not subject to the terms of the contract between
the parties. Simply put, Defendant was not obligated to solve water drainage problems on
the lot by its contract with Plaintiffs.
6. Defendant admits that Plaintiffs contacted Defendant repeatedly to complain about
the water problem on their lot, but that those complaints were not made until after the final
inspection of the property by the Plaintiffs. Defendant denies it had any obligation to correct
that problem.
7. Denied as stated. Although not obligated to take any corrective action for the
water problem on Plaintiffs' lot, Defendant organized meetings with Plaintiffs and their
representatives and representatives of the developer responsible for the water problem in an
effort to correct the problem. Defendant and the developer offered to do certain remedial
work if the parties could agree upon that work, but Plaintiffs failed or refused to proceed in
accordance with that proposal.
8. Admitted.
9. Denied as stated. Defendant agreed to do certain work to complete or correct its
obligations under the contract. Defendant, in fact, did that work.
10. Denied. Defendant returned and completed or corrected all of the work it was
obligated to do under its contract. It was not able to satisfy Plaintiff's complaints about
water on Plaintiffs' lot, but the problems with water on the lot were not within the scope of
the contract between Plaintiffs and Defendant and were not Defendant's obligation to correct.
11. Admitted.
12. Defendant denies, however, that it has any obligations to correct any storm water
drainage problem on the lot because that work was not within the scope of the contract
between the parties and is the responsibilities of Plaintiffs and the developer. Defendant
incorporates herein by reference the averments set out in its New Matter.
13. It is admitted that Gannett Fleming, Inc. issued a report and that a copy of that
report is attached to Plaintiffs' Complaint. It is denied, however, that the problems described
in the report were caused by Defendant or were Defendant's responsibility to correct. The
averments set out in Defendant's New Matter are incorporated herein by reference.
14. Admitted.
15. Denied. To the contrary, Defendant organized a meeting of Plaintiffs, Defendant,
the developer of the subdivision in which Plaintiffs' lot is located, and their representatives,
in an effort to devise away to resolve the water problem on Plaintiffs' lots. Plaintiffs,
however, failed to respond to the requests of Defendant and the developer for information
about a proposed solution to the problem and, as a result, the developer declined to proceed
further with corrective efforts.
16. Denied. After reasonable investigation, Defendant is not aware of exactly what it
will cost to correct the problem on Plaintiffs' lot because that information is within the
exclusive control of Plaintiffs, Plaintiff's engineer, and other parties, including the company
that developed the subdivision. Accordingly, Defendant denies those averments and
demands proof of them at trial.
17. Admitted. Defendant denies, however, that it has any obligation to correct the
water problem on Plaintiffs' lot, which was not created by Defendant and was not within the
scope of Defendant's obligations in its contract with Plaintiffs.
18. Admitted.
19. Denied as stated. Defendant admits it has not undertaken further action to
correct the water problem on Plaintiffs' lot but denies that Defendant has any obligation to
do so. The averments set out in Defendant's New Matter are incorporated herein by
reference.
COUNT I - BREACH OF CONTRACT
20. No answer required. To the extent that an answer is required, Defendant
incorporates herein the averments set out in the other paragraphs of this answer and of
Defendant's New Matter.
21. Admitted. However, the obligations of Defendant under the contract did not
include regrading the lot or taking other steps to correct a water problem which existed on
the lot as a result of the way the property was developed. Defendant incorporates herein, by
reference, the averments set out in its New Matter.
22. Plaintiff well and truly performed all of its obligations under the contract and is
not obligated to solve the water problems on the lot caused by the manner in which the lot
was developed by others. Defendant incorporates herein by reference the averments set out
in its new matter.
23. Denied for the reasons set forth in Paragraphs 21 and 22 above and in
Defendant's New Matter, all of which are incorporated herein by reference.
WHEREFORE, Defendant demands that this court dismiss Plaintiff's Complaint and
enter judgment in favor of Defendant.
COUNT II - QUANTUM MERUIT / IMPLIED CONTRACT
24. No answer required. To the extent that an answer is required, Defendant
incorporates herein the averments set out in the other paragraphs of this answer and of
Defendant's New Matter.
25. Admitted.
26. Admitted. However, Defendant states that it performed all of its obligations
under the contract and is not obligated to cure or correct the water problem on Plaintiff's lot
which was not within the scope of the contract between the parties and was not caused by
Defendant.
27. Denied. Defendant has well and truly performed all of its obligations under the
contract. The averments set forth in Paragraph 26 above and in Defendant's New Matter are
incorporated herein by reference.
28. Denied. Defendant made no implied agreement or warranty. To the contrary,
the agreement between the parties, and the subsequent warranty documents, disclaim any
such promise, agreement, or warranty.
WHEREFORE, Defendant prays this court to dismiss Plaintiff's Complaint and enter
judgment against Plaintiffs and in Defendant's favor in this matter.
COUNT III - UNJUST ENRICHMENT
29. No answer required. To the extent that an answer is required, Defendant
incorporates herein the averments set out in the other paragraphs of this answer and of
Defendant's New Matter.
30. Admitted. However, Defendant well and truly performed all of its obligations
under the agreement between the parties and is fully entitled to the payment it received.
31. Denied. Defendant has not been unjustly enriched in any way by the dealings
between the parties but, to the contrary, has received fair and reasonable payment for the
construction materials and services it provided to Plaintiffs. Defendant has not refused to
perform any of its obligations under the contract and is not obligated to correct the water
problem on Plaintiffs' lot which is not within the scope of the contract between the parties
and which was not caused by Defendant. Defendant incorporates herein, by reference, the
averments set forth in Defendant's New Matter.
WHEREFORE, Defendant prays this court to dismiss Plaintiff's Complaint and enter
judgment against Plaintiffs and in Defendant's favor in this matter.
NEW MATTER
By way of further response to Plaintiffs' Complaint, Defendant sets out the following
New Matter:
32. At the time Plaintiffs and Defendant entered into their contract, Defendant
offered to Plaintiff a warranty program offered by RWC. The warranty program was to
replace any implied or express warranty of Defendant with regard to the contract between
the parties. At that time, Defendant provided Plaintiff with a copy of RWC's warranty
information, a copy of which is attached hereto and marked as EXHIBIT A.
33. Upon substantial completion of the work on Plaintiffs' home, Plaintiffs and
Defendant prepared an application for the RWC warranty program which Plaintiffs executed
and delivered to RWC. A copy of that application is attached hereto and marked as
EXHIBIT B.
34. RWC subsequently accepted Plaintiffs' application and issued its warranty to
Plaintiffs for the property which is the subject of this dispute.
35. By applying for and accepting RWC's warranty program, Plaintiffs knowingly
waived all claims against Defendant arising out of the contract between the parties,
specifically including any warranty of workmanship, habitability, fitness for intended use, or
the like. In essence, the RWC warranty replaced entirely any warranties, expressed or
implied, made by Defendant with regard to the contract between the parties.
36. Under the terms of the RWC warranty program, as accepted by Plaintiffs when
they applied for and accepted the warranty, all claims arising out of the construction of the
home must be resolved by arbitration. As a result, Plaintiffs waived their right to proceed
with this action against Defendant and must submit their claims regarding the construction
of the home to arbitration pursuant to the RWC documents.
37. Under the terms of the contract, Defendant was required to construct a home for
Plaintiffs. Defendant was not, however, responsible to select the lot on which the building
was to be erected and was not responsible for storm water drainage or other problems
resulting from the location, elevation, or other configuration of the lot.
38. Plaintiffs purchased the lot on which Defendant constructed the home from
McNaughton Homes. Plaintiffs themselves selected the lot on which they contracted with
Defendant to build their home.
39. Defendant, at no time, selected the lot or location for Plaintiffs' home or gave
Plaintiffs any advice about the selection of the lot, the condition of the lot, or other matters
relating to the storm water drainage problem which Plaintiffs now experience.
40. To the extent that Plaintiffs have any valid claim against any third party for the
water problem on their lot, it is against the parties that laid out their lot, designed and
installed storm water drainage systems and facilities, and who otherwise were responsible
for the location, elevation, and configuration of Plaintiffs' lot and the storm water system
which served it.
41. Although Defendant had no obligation to correct the water problem on Plaintiffs'
lot, Defendant undertook efforts to find a way to solve the problem to Plaintiffs' satisfaction.
Defendant's efforts involved some landscape work in Plaintiffs' yard, organizing a meeting
with representatives of McNaughton Homes, the company that developed the lot and was
responsible for the water problem on it, and other communications with Plaintiffs and their
engineers and McNaughton Homes.
42. Defendant's efforts to resolve the problem for the benefit of Plaintiffs were
unsuccessful because Plaintiffs failed to provide to McNaughton Homes the information
McNaughton Homes needed to determine what remedial work it would do on Plaintiffs' lot
and adjoining areas to solve the problem. Thus, because of Plaintiffs' failure to cooperate in
the process, Defendant's efforts to assist in resolving the problem were unsuccessful.
WHEREFORE, Defendant prays this court to dismiss Plaintiffs' Complaint and to enter
judgment in this matter in favor of Defendant.
1
1
Sa 1 L. Andes
Attorney for Defendant
Supreme Court ID # 17225
525 North 12th Street
Lemoyne, Pa 17043
(717) 761-5361
I verify that the statements made in this document are true and correct. I understand
that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904
(unsworn falsification to authorities).
Home Designs Unlimited, Inc.
Date: /OZZ?oG
Manager
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BERNARD V. KELLY, JR., and
MICHELE A. KELLY,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
HOME DESIGNS UNLIMITED, LLC, DOCKET NO. 06-3245 CIVIL TERM
Defendant
RETURN OF RULE TO SHOW CAUSE
AND NOW, come Plaintiffs, Bernard V. Kelly, Jr. and Michele
A. Kelly, by and through their attorneys, Jennifer B. Hipp,
Esquire, and James D. Bogar, Esquire, and file this Return of
Rule to Show Cause and respectfully assert that Defendant, Home
Designs Unlimited, LLC's Petition to Compel Arbitration be
determined to be without merit and dismissed based upon the
following:
1. Admitted.
2. Admitted in part, denied in part. To the extent that
Defendant intended to utilize the word "constructed" instead of
the word "consulted", it is admitted that Defendant constructed a
residence for Plaintiffs. The remaining allegations in
Defendant's Paragraph No. 2 are conclusions of law to which no
response is required and, as such, those allegations are
specifically denied.
3. Admitted in part, denied in part. It is admitted that
Plaintiffs were provided with a copy of the document attached as
Exhibit "A" to Defendant's Petition to Compel Arbitration. The
remaining allegation in Defendant's Paragraph No. 3 are
specifically denied and, further, are conclusion of law to which
no response is required.
4. Admitted in part, denied in part. It is admitted that
Plaintiffs signed the document attached as Exhibit "B" to
Defendant's Petition to Compel Arbitration. Any other
allegations as to the extent to which Exhibit "B" impacts the
claim set forth in Plaintiffs' Complaint are conclusions of law
to which no response is required and, as such, are specifically
denied.
5. Denied. Plaintiffs are without information to respond
to the allegations set forth in Paragraph No. 5.
6. Denied. The allegations set forth in Defendant's
Paragraph No. 6 are conclusions of law to which no response is
required. Further, on or about December 31, 2004, Defendant's
representative, Denise P. Thompson, Vice-President, Home Designs
Unlimited, LLC, advised Plaintiffs that the storm water drainage
issues were not covered or included in the Home Warranty
Contract. A copy of Ms. Thompson's December 31, 2004
correspondence is attached hereto and incorporated herein as
Exhibit "A".
7. Denied. The allegations set forth in Defendant's
Paragraph No. 7 are conclusions of law to which no response is
required. By way of further answer, Plaintiffs also incorporate
the Answer to Paragraph No. 6 of Defendant's Petition to Compel
Arbitration.
8. Denied. The allegations set forth in Defendant's
Paragraph No. 8 are conclusions of law to which no response is
required.
9. Denied. Plaintiffs are without sufficient information
to respond to the allegations as set forth in Defendant's
Paragraph No. 9.
WHEREFORE, Bernard V. Kelly, Jr. and Michele A. Kelly
respectfully request that this Honorable Court Order that
Defendant's Petition to Compel Arbitration be determined to be
without merit and dismissed with prejudice.
Respectfully submitted,
Date: November 2006 J-\? c C7 r
Jenn er B. Hipp, Esquire
Pa. I.D. No. 86556
Ja es D. B ar, Esquire
Pa. T.D. No. 19475
One West Main Street
Shiremanstown, PA 17011
(717) 737-8761
Attorneys for Plaintiffs,
Bernard V. Kelly, Jr. and
Michele A. Kelly
.
BERNARD V. KELLY, JR., and
MICHELE A. KELLY,
Plaintiffs
V.
HOME DESIGNS UNLIMITED, LLC,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
DOCKET NO. 06-3245 CIVIL TERM
CERTIFICATE OF SERVICE
We, Jennifer B. Hipp, Esquire, and James D. Bogar, Esquire,
hereby certify that we are this day serving the foregoing Answer
to Return of Rule to Show Cause upon the following named
individual this day by depositing same in the United States Mail,
First Class, postage prepaid, at Shiremanstown, Pennsylvania,
addressed as follows:
Samuel L. Andes, Esquire
525 North Twelfth Street
P.O. Box 168
Lemoyne, PA 17043
Date: November 2006
Jenni B. Hipp, Esquire
el'1?40'd /'?-46W
JJamets D. B t, Esquire
UNLIMITED
' ?esi?n .Z6 `?onstxuction
www.HomeDesignsUMimited.com
December 31, 2004
Attn: Jennifer B. Hipp
James D.' Bogar
One WesflVlain Street
'Shrememanstown, PA 17011
SENT'VIA FAX AND US MAIL
Dear Ms. Hipp, ;
Tlus_letter will serve as our written response to your letter dated.December. 14, 2004 arid
our phone conversation on December 16, 2004. As we discussed; the majority of the,
Kelly's year-end warranty items have been scheduled and completed. According to our.
records; on November 15, 2004 our representative completed all the covered warranty
items,on the,list with the exception. of those that required further action and/or scheduling
by our sub contractors. Those items are as follows:
1. Drywall, Cracksl*pairs - On 12/08/04 Geesaman Drywaller's completed, some
work, but due to limited time available allthe required repairs could root-be
completed. The Kelly's-were instructed by the diywallers to contact their office
to. schedule the balance of the work to, be completed: According to their records,
they were never contacted to ie=schedule.
2. Windows . This will require a scheduled meeting with our window
representative to inspect and evaluate the windows that the Kelly's are
experiencing a problem with. Any corrective measures and/or parts will be
scheduled and/or ordered upon -the completion of this evaluation. This inspection
can be scheduled as soon as the Kelly's have available time.-
3. Un-Level Floors - These issues could not-be addressed during our scheduled
work list on November 15, 2004. This will require and inspection by our Framing .
Contractor. At his recommendations, we will then take the necessary corrective
actions to address their. concems. This inspection can be scheduled as soon as the
Kelly's have available time.
EXHIBIT
P.O. Box 387, New Kingstown, PA 17072 -Office 717-960-0295 - Fax 717-960-9744
HDU@HomeDesignsUnlimited.com
This 'leaves only (2) items on the Kelly's year-end warranty list that are not considered
warranty issues and will not be completed by Home. Designs Unlimited. They are-the
installation of (5). dimmer switches and the backyard drainage issues.
The dimmer switches are not part of the Kelly's contractor are they considered 'a
warranty item. We have, suggested to the kelly?s in the past that they should contact .
Gaffney's Electrical Contracting @ 717-432-9473,directly..to obtain :a quote -and schedule
this work to be completed..
As it relates to the backyard drainage issue, it is our position at this time that the backyard
drainage issues the Kelly's are. experi encing is not'considered. a covered warranty item as.
outlined in the Warranty Standards - Year One Coverage - 3X16 provided to them ?by the
Residential Warranty Corporation. As you are aware,.we have already-compleied.
additional work at the Kelly's residence Above their contract for which we have never
received payment. The Kelly's authorized'ihis work prior to any work commencing.
We certainly understand. the frustration the Kelly's:must be experiencing as a result of
this water drainage pri oblem. - However, we feel that other factors. are contributing Ito their
problem that is beyond`.the control of Home Designs Unlimited.'
Please be assured that we will appropriately address the balance of items with the Kelly's
home that are considered. builder's'responsibility as set forth in their :Year One '
Residential Warranty Coverage. if you have any questions or require clarification of their
warranty, please feel free to contact the Residential Warranty .Corporation @ 717-561-
4480.
I will look forward to hearing from-you in an effort to-bririg:this matter to a quick and
complete close that will be satisfactory to all parties involved.
Sincerely,
Home'Designs Vfit4uite4, LLC
ign ? Cons u on
,Denise P.. Thompson
Vice President
Cc: David R. Thompson-President
File
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BERNARD V. KELLY, JR., and : IN THE COURT OF COMMON PLEAS OF
MICHELE A. KELLY, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION - LAW
HOME DESIGNS UNLIMITED, LLC, DOCKET NO. 06-3245 CIVIL TERM
Defendant
ANSWER TO NEW MATTER
AND NOW COME Plaintiffs, Bernard V. Kelly, Jr. and Michele
A. Kelly, by and through their attorneys, Jennifer B. Hipp,
Esquire, and James D. Bogar, Esquire, and file this Answer to New
Matter as follows:
32. Denied. The allegations set forth in Defendant's
Paragraph No. 32 are conclusions of law to which no response is
required and, as such, those allegations are specifically denied.
33. Denied. The allegations set forth in Defendant's
Paragraph No. 33 are conclusions of law to which no response is
required and, as such, those allegations are specifically denied.
34. Denied. Plaintiffs are without sufficient information
to respond to the allegations set forth in Defendant's Paragraph
No. 34.
35. Denied. The allegations set forth in Defendant's
Paragraph No. 35 are conclusions of law to which no response is
required and, as such, those allegations are specifically denied.
By way of further answer, Defendant's representative, Denise P.
Thompson, Vice-President, Home Designs Unlimited, LLC, advised
Plaintiffs in writing that storm water drainage issues were not
covered or included in the home warranty contract. A copy of Ms.
Thompson's December 31, 2004 correspondence is attached hereto
and incorporated herein as Exhibit "A".
36. Denied. The allegations set forth in Defendant's
Paragraph No. 36 are conclusions of law to which no response is
required and, as such, those allegations are specifically denied.
37. Admitted in part, denied in part. It is admitted that
Defendant did not select the lot on which the Plaintiffs' home
was to be erected. It is specifically denied that the Defendant
is not responsible for the storm water drainage problems that are
present at the Plaintiffs' home.
38. Admitted.
39. Admitted in part, denied in part. It is admitted that
the Defendant did not select the lot or location for Plaintiffs'
home. It is specifically denied that Defendant did not provide
Plaintiffs with advice about the selection of the lot, the
condition of the lot, or other matters relating to the storm
water drainage problem which Plaintiffs now experience. By way
of further answer, the Defendant's representative, David
Thompson, advised the Plaintiffs that Defendant could make the
Plaintiffs' back yard as flat as possible, but that it would be
mindful to do so without creating any storm water drainage
problems.
40. Denied. The allegations set forth in Defendant's
Paragraph No. 40 are conclusions of law to which no response is
required and, as such, those allegations are specifically denied.
41. Denied. It is specifically denied that Defendant does
not have an obligation to correct the storm water drainage
problem that exists at the Plaintiffs' home. By way of further
answer, it is specifically denied that the Defendant undertook
efforts to successfully solve the storm water drainage problem at
the Plaintiffs' home. Defendant did undertake some allegedly
ameliorative efforts which were completely unsuccessful. It is
specifically denied that Defendant organized a meeting with
representatives of McNaughton Homes. By way of further answer,
it is admitted that Plaintiff and its engineering representatives
organized a meeting with Defendant and a representative of
McNaughton homes and Hampden Township.
42. Denied. It is specifically denied that Defendant's
efforts to resolve the problem for the benefit of Plaintiffs were
unsuccessful based upon any actions taken or not taken by the
Plaintiffs. By way of further answer, Plaintiffs have fully
cooperated in any efforts to work with Defendant and McNaughton
Homes to seek a resolution of the storm water drainage problem
present at the Plaintiffs' home.
WHEREFORE, Plaintiffs demand judgment against Defendant,
Home Designs Unlimited, LLC, in the amount of nine thousand
dollars ($9,000.00), plus interest, with the costs of this
action, attorney's fees, engineering fees, and any other relief
deemed just and appropriate.
Respectfully submitted,
Date: November 22, 2006
Jenni er B. Hipp, Esquire
Pa. I. b. No. 86556
One West Main Street
Shiremanstown, PA 17011
(717) 737-8761
Attorneys for Plaintiffs,
Bernard V. Kelly, Jr. and
Michele A. Kelly
VERIFICATION
We verify that the statements made in this Answer to New
Matter are true and correct. We understand that unsworn
statements herein are made subject to the penalties of 18. Pa.
C.S.A. § 4904, relating to unsworn falsification to authorities.
Date: IVOV- oZo1 2006 X .
Bernard V. Kelly, Jr.
Mich le A. Kelly
?
UNLIMITED
?esi?n .? `?onstz?uction
.. - ' ? www.HomeDesignsUnlimfted.com??
December 31, 2004
Attn: Jennifer B,_HipP
James D.'Bogar
One West Main Street
Sli rmvriemanstown, PA 17011
S,ENT`VU FAX AND .US MAIL
This. letter:will ' serve as our-written response to your letter, datted.December 14' 2004 -and
our plione= conversation on December 16, 2004. As we "discussed; the majority of the
Kelly's year=end warranty items have-been scheduled and completed: Accordingto our...
: "recoils; on: November l S, 2004 our representative completed all the covered warranty
items on the, list with the exception, of those that required further action and/or scheduling.
..by our. sub contractors: Those items are as follows:
J -Drywall aaks/Repairs - On 12/08/04 Geesaman Drywaller's completed..some
work,.. but.due'to limited tiine available all the required repairs could notbe
completed. - The Kelly's -were instructed by the drywallers to contact their office
to. schedule the balance of the work to, be completed.- According to theirsecords,,
they were never contacted to ie-schedule.
- 2. Windows , This will require a scheduled meeting with our window,
representative to inspect and evaluate the windows that the Kelly's are
experi encing a problem with. Any corrective measures and/or:parts. will be
scheduled and/or ordered uponthe completion of this evaluation. This inspection
can be scheduled as soon as the Kelly's have available time.
3. Un-Level Floors - These issues could not-be addressed during -our scheduled
work list on November 15, 2004. This will require and inspection by our Framing .
Contractor. At his recommendations, we will-then take the necessary corrective
actions to address their. concerns. This inspection can be scheduled as soon as the
Kelly's have available time.
EXHIBIT
P.O. Box 387, New Kingstown, PA 17072.Office 717-960-0295 - Fax 717-960-97.44 ?? Ll ??
HDU@HomeDesignsUnlimited.com /// ???
This leaves only (2) items on the Kelly's year-end warranty list that are not'considered
warranty -issues and will not be completed by Home. Designs Unlimited: They are*the
installation of (5). dimmer switches.and the backyard drainage issues.
The dimmer switches. are not part of the Kelly's contractor are they considered a
warranty item: We have' _suggested to the Kelly's in the past that they should contact
Gaffney's Electrical Contracting @- 17 -432-9473 directiy:to obtain-a quote -and schedule.
'this work to be completed..
As it relates to.the backyard drainage issue, it is our position -atthis time that the backyard
drainage issues the Kelly's are. experiencing is not considered a covered: warranty item as.
outlined in theWarranty Standards -Year One.Coverage - 3-16 provided to themby the
Residential Warranty Corporation: AsYou are aware,:we have already-completed,
additional work at the Kelly's residence -above their contract for which we have. never
received payment.' .'The Kelly's authorized' this work prior to any work commencing.
We certainly understand. the frustration the Kelly's ,must be experiencing as a result of
tTus:water-drainage problein.' However, we feel that other factors- are-contributing their .
problem that is beyond`the control of Home Designs Unlimited.'
'Please be assured-that we will appropriately address the balance of items with the Kelly's '
home that are considered, builder's responsibility ' set forth in their Year One '
Residential Warranty Coverage. if youhive any questions or require clarification-'of their
warranty, please feel free to contact the Residential Warranty,:Corporation @ 717-561-
4480.
I will look forward to hearing from-you in an effort to bring :this matter to a quick and
complete close that will be satisfactory to all parties iiivolved.'
Sincerely,
Home' Designs 'tech LLC
ign Cons u n
Denise P.: Thompson
Vice President
Cc: David R Thompson-President
File
BERNARD V. KELLY, JR., and : IN THE COURT OF COMMON PLEAS OF
MICHELE A. KELLY, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION - LAW
HOME DESIGNS UNLIMITED, LLC, DOCKET NO. 06-3245 CIVIL TERM
Defendant
CERTIFICATE OF SERVICE
I, Jennifer B. Hipp, Esquire, hereby certify that I am this
day serving the foregoing Answer to New matter upon the following
named individual this day by depositing same in the United States
Mail, First Class, postage prepaid, at Shiremanstown, Pennsyl-
vania, addressed as follows:
Samuel L. Andes, Esquire
525 North Twelfth Street
P.O. Box 168
Lemoyne, PA 17043
Date: November 22, 2006
Jennife B. Hipp, Esquire
j
a CD
Curtis R. Long
Prothonotary
Office of the Vrotbonotarp
Cumberfanb Countp
Renee K. Simpson
Deputy Prothonotary
John E. Slike
Solicitor
(?lo - -3 Z4/,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