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HomeMy WebLinkAbout06-4482Thomas J. Nehilla, Esquire Attorney I.D. No. 67326 Jennifer Zimmerman, Esquire Attomey l.D. No. 89459 RHOADS & SINON LLP One South Market Square, 121h Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff CUSTER DESIGN GROUP, INC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiff V. LAMARCO CONTRACTING, INC. OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. JURY TRIAL DEMANDED Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim 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 YOU 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 Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3199 576938.2 Thomas J. Nehilla, Esquire Attorney I.D. No. 67326 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 RHOADS & SINON LLP one South Market Square, 121h Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff CUSTER DESIGN GROUP, INC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. a4 - YNVd v. LAMARCO CONTRACTING, INC. JURY TRIAL DEMANDED Defendant COMPLAINT NOW COMES, Custer Design Group, Inc. for the benefit of Heirloom Cabinetry of Pennsylvania, Inc., by their attorneys, Rhoads & Sinon LLP, and hereby submits the within Complaint against LaMarco Contracting, Inc., and avers as follows: 1. Custer Design Group, Inc. ("Custer") is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania having an address of 2805 Old Post Road, Harrisburg, Pennsylvania 17110. Custer's principal business is serving as a general contractor constructing residential homes. 2. LaMarco Contracting, Inc. C LaMarco" or "Defendant"), upon information and belief, is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania and has a registered address of 7409 Wells Drive, Harrisburg, PA 17112. LaMarco is an HVAC contractor. 3. Heirloom Cabinetry of Pennsylvania, Inc. ("Heirloom") is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania having an address of RR 4 Box 390, Nelson Road, Mifflintown, Pennsylvania 17059. Heirloom's principal business is constructing and installing wood cabinetry as well as constructing wood furniture. 4. Steven Neiman, owner of property located at 3 Springdale Way, Mechanicsburg, Cumberland County, Pennsylvania ("Neiman'), contracted with Custer, as General Contractor, for the construction of a residence on his property located at 3 Springdale Way ("Neiman Residence"). 5. Custer entered into a Supplemental Trade Contractor Agreement on or about October 2003 with Heirloom ("Heirloom Subcontract") for the construction and installation of cherry and pear wood cabinetry and paneling in dining room, family room, office, master bedroom and master bathroom in the Neiman Residence ("Heirloom Cabinetry"). Heirloom also constructed several pieces of wood furniture for the Neiman Residence, including, but not limited to, an entertainment center, a bed, a desk, and a dining room suite ("Heirloom Furniture"). A true and correct copy of the Heirloom Subcontract is attached hereto as Exhibit "A" and incorporated herein by reference. 6. Custer entered into a subcontract with LaMarco for the installation of the HVAC system in the Neiman Residence ("LaMarco Subcontract"). A true and correct copy of the LaMarco Subcontract is attached hereto as Exhibit "B" and incorporated herein by reference. 7. LaMarco installed an HVAC system in the Neiman Residence on or around October 2003, by suspending part of the system above the ceiling in the dining mom. 8. In accordance with the LaMarco Subcontract, LaMarco was to perform all work in the Neiman Residence in a good workmanlike manner. See LaMamo Subcontract, 11. 9. During the initial installation of the HVAC system, LaMarco failed to properly install the HVAC system in the Neiman Residence. The improper installation included, but was not limited to, the failure to install an appropriate overflow condensation pan or drain for the humidifier which was suspended above the dining room ceiling. 10. On or around October 2003, and as a direct result of LaMarco's failure to install the appropriate condensation pan, water dripped and accumulated directly on the ceiling frame above the dining room which caused water marks on the ceiling and water to leak through the ceiling and stream down the sides of the walls onto the dining room floor. 11. Additionally, water dripped down the inside of the dining room walls and accumulated under the hardwood floors throughout the house which caused the hardwood floor to buckle and cup and the cabinetry in the family room, the master bedroom and bathroom as well as the dining room table and office desktop to crack. 12. Within a short period of time after the above-mentioned cupping and cracking were first noticed, water started dripping from the dining room ceiling. 13. At that time, the wood flooring subcontractor, Restorations Unlimited, tested the humidity levels throughout the entire house, and specifically where the Heirloom Cabinetry and hardwood flooring were located in the dining room, family room, office, master bedroom and master bathroom. 14. After the water leakage occurred, the humidity levels in the Neiman Residence were, at times, extremely high, and at times, below normal. The humidity levels were at such an abnormal level throughout the house that it damaged the hardwood floors and permanently damaged the Heirloom wood used to construct the Heirloom Cabinetry and the Heirloom Furniture. 15. The humidity levels were abnormal for at least three to four weeks because it took a significant amount of time to remove the excess humidity from the air and the wood flooring after the dining room leaks. 16. At no time did Custer, nor any of its officers, directors, agents or employees, direct LaMarco to alter or maintain the level of moisture in any manner in the Neiman Residence. 17. Due to the abnormal humidity levels, the damage to the maple hardwood floor and the Heirloom wood occurred throughout the entire house, not just in the dining room where the water problems occurred. 18. The cabinetry and fumiture installed and constructed by Heirloom permanently cracked and suffered water damage as a result of the abnormal humidity levels and the water leakage that occurred due to LaMarco's improper installation of the HVAC system. 19. Due to the damage to the Heirloom Cabinetry and Heirloom Furniture, Heirloom had to completely replace the bathroom, bedroom and office cabinetry at a total cost to Heirloom of $34,558.00. 20. In addition to the wood damage, as a direct result of the water leakage and the abnormal humidity levels, the drywall, which was installed by Custer, cracked in the areas of the house where the Heirloom Cabinetry was located. 21. Custer replaced much of the damaged drywall in the rooms where the Heirloom Cabinetry was located due to significant cracking. Custer also repainted the affected areas, replaced a large portion of the laundry room floor, and replaced the dining room ceiling which were all damaged as a result of the water leaks. 22. LaMarco's insurance company, Penn National Insurance, reimbursed Custer for Custer's costs in replacing and repainting the damaged drywall due to LaMarco's improper installation of the HVAC system. 23. The entire heating and air conditioning system, installed by LaMarco, including the humidifier system, is being reengineered and rebuilt by a new HVAC subcontractor because the system never worked properly due to LaMarco's improper installation. 24. In addition, the new HVAd subcontractor installed a pipe to drain the system, which LaMarco failed to install. 25. Heirloom completed the replacement of the family room cabinetry in June 2005. 26. There have not been any problems with cracking in the furniture and cabinetry since it was replaced by Heirloom, after the humidity and water problems were resolved. 27. Heirloom sought reimbursement from LaMarco's insurance company, Penn National Insurance, for the costs of replacing the cabinetry and furniture, however, the insurance company denied payment of the claim, even though it paid Custer's claim which resulted from the same damage. A true and correct copy of the Penn National denial letters are attached hereto as Exhibit "C" and incorporated herein by reference. COUNT I - BREACH OF CONTRACT Custer v. Defendant 28. The foregoing paragraphs are incorporated herein by reference as if set forth here at length. 29. Custer and LaMarco had a contract for LaMarco to install the HVAC System in the Neiman Residence. 30. LaMarco owed Custer a duty to install the HVAC system in the Neiman Residence in a workmanlike manner and in accordance with all industry standards and practices and all applicable building codes. 31. LaMarco's failure to properly install the HVAC system in a manner that the system did not leak was a breach of these duties and directly resulted in damages as alleged herein. 32. LaMarco's actions as described herein were wanton, outrageous and reckless, thereby justifying an award of punitive damages and attorneys' fees. WHEREFORE, Plaintiff, Custer Design Group, Inc., for the benefit of Heirloom Cabinetry of Pennsylvania, Inc. respectfully requests this Court enter judgment in favor of Plaintiff and against Defendant LaMarco Contracting, Inc., in the amount of $34,558.00, plus interest, punitive damages, attorneys fees, and all other costs advanced by Plaintiff. Respectfully submitted, DATED: August 1 2006 RHOADS & SINON LLP By: OL f?? omas J. Ne 'lla A I.D. No. 6 6 Jennifer Zimmerman PA I.D. No. 89459 P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff -_US/01 Iu6 17i19-FA.t 717 231.6626 -_-RH09D 6&9INoN JZ? '.w?Q?2J.1S3rg Theodore Waxier, Jr., Ptesident of Heirloom Cabinetry of Pennsylvania, Inc., deposes and says, subject to the penalties of 18 Pa. C.G. ys 4904 relating to an6.wom falsification to authorities, tltlit he is the F7'esider.i: of Heirloom Cabinetry of Pen wylvarua, Inc„ that he rnakets this vorification by its authority and that the farts set forth in the Complaint are true acid correct to the lx3t of' his/her knowledge, information and belief. d, Datc L&61 r. "C/ Yh. c4 sale E Wag=, Jr., Presi Heirloom Cabinetry of Penns a,;tic. Ed Wot7E:oT 900E 20 '6nd E60E92VL. L : 'ON ENOHd Mi3NIHHJ WOO-1JIDH : WMi-1 J/13/2003 '_"ii: 5b /11.4Jl,b .ly IJJt>IbFC UR'?IUY rH??c u< Custer Design +C.tx'otip, Inc, $UPPLF-N2-^iTAL TA,+ne C(2N-MACMR AG tGTL7F.NT Trww Conrraetnrmust pmvide a ca<rrrnt Crrtifrcatr ofTnsuean e, aaaning, Custer Drsisxx Group, Lne.s as the Canificata Holder, Thu Cerii Tmt rrrust he or! Q:Prior to rebare iffrrt .lre.'y',nent. ,4L ramie r must be Lsued m Cuaw Deg= Lrt2UP,, Inc.., 250; Old Pn., t Road S wire :00. H,;zmsburq PA 17110. The p:rucs to tbis Construction Ag:ecment ate Custer Deli i Qmiw Inc., Builder," aad ?f ???1/n l?;4AtNEreY 6F?? , " Trade Contractor." This AGrcoinLat shall gown. 4labor performed and mamnal fiirrnshed by Trade Contractor for Builder until either part; revokes it by d.th7cring wntten notice of such revocation to the other party. If either ?arty revokes this ag recment, it siuli be null and roid for all coneacts entered into thereafter. Trade Contractor agrees: ' 0 perform all work is R workmanlike manner, and To deliver materials which Rre new and in accoedancc viith the platys and speci_fieations delivered to Ttade Contractor, Upon recoiving notice from F.udder that "Trade Contractor has pecfoancd inferior, improper., or unsound labor, or delivered materials at vuiancx with which is spmeifted, ,r, rade Contractor will, within twenri-four (24) 1-tours, proceed to remove sucii work or materials and snake good all otbcr wotk or materials damaged thereby. Trade Contractor shall not subcontract any parr of the work without the prior written consent of BuUdcr, and such consent shall not release Trade Contractor from any responsibility or liability ir. connection with. the subcontract. It is mutually understood and agreed between Bolder and Trade Contractor that Trade Conte•aeto.c is an independent contractor; that at no rime atc ann o F Ttadc Contractor's employees in the ernpioy of Auil,der, aor is Builder responsibk to any of 'T'rade Contractor's employees fat the pa7ment of their wages: that Trade Contractor alone is responsible for compliance with all ap:licablc statutes, ordinances, a- ad regulations cenccurio,g Wa cmployee°s Social Security, Wotk=ar.'s Compensation, and ail safety conditions and record keeping =juut ments under the Qccspacional Safery and 'Health Act of 1970 and amendments thereto, State and Federal taxation. and :ieensiog. Tnede Contractor eball maintain, at lus own expense, such insurance as vrill protect l.im from wrnktnen's compensation axe and from other claims and dama¢cs for persona; injury.including death, in tlrc rur..imum amount of $500,000.00, whicira may arise from operators under th.a contract, whether such operations be by the Trade ContrtttOr or icy any other ,Jade coil trnc-ors or his ir.rloyu bT anyone d tecdy or indictetly c=pkryrd by either rf diem;. Trade: n,rar-tor ucteby agices to indcwzufc and hold ha.-inlcss builder from any c44 ,"Q0?V Td I:IdTT:0T S00Z 60 'daS £60Z9£b2-T2- : 'ON 3NOHd A8i1]NIHd0 WOO78IDH : WOaA ws.rb. respect to the matters outlined in the paragraph. A copy of Trade Cont"actor's Certificate of Insurance muse be approved jg a dung by Ctssmr Design Group, Inc. at Ica.et three (3) days prior to commeneetztent of work by Trade C:antractor. Trade Contractor agrees to pay for 211 rnatetials and all labor supplied by Tradc Contractor fox the job when due and to hold Builder and the owner harmless from any li¢rta arising out of labor, materials, or subcontracts furnished by Trade Contractor. Buildex shall have the right to require Trade Contractor ro provide releases by &U persons supplying labor, naamzials, or services to Trade Contractor for the job herein described and to withhold final. payment until such releases are supplied. Trade Contractor acknowledges that it is an independent contractor and agrees to pay all coutnbutiocs requited by law or conttact which if unpaid could be an encumbrance upon the real property wbere the work is perfomed. 1. Trade Contractor agrees to permit other Trade Contractors temomble opponvttiry for sror-age of materials and execution of their, work and shall pxoperly coordinate its work with theirs, If any part of the work w be performed by Trade Contractor depends, for proper executioo, on the work of other tre.de contractors or Builder of the owner, Trade Contractor shall immediately report conflicts, defects or omissions that tender such other work untimely or unsuitablo for rmccution of its work, Proceeding with its work without such report of defects is and acceptance by Tradc Contractor of the work of oth=s that. pteredes.. or is perfotmed simultancously with, its work, Should Trade Contractor damage wo tk of other trade contractors or Builder, Trade Contractor shall pay the cost of repsidlig such darnagc and hold Builder and owner harmless, Trade Contractor agrees that he will not hold BuOdet responsible for loss or damage or injury caused by another trade contractox and fLuther agrccs to look to said trade contractor for the rceorcry from it of any such damage or injury. 5. Trade Contractor shall procure and pay all necessary permits required for performance by Trade Contractor under this M%cemcat which are obtainable by Trade Contractor and will protect unfieished work and all materials for Trade Contra.ctot's we, or incidental thereto, against every kind of damage, including damage by the elements, exccpc damage by fire„ until completion of rho building, G. Trade Contractor agreca to place debris in Builder's durnpster, unless instructed otherwise, rubbish and waste materials creamd'Sy its operation as the work progresses, in order to maictaic a clean safe condition and, upon completion of its work, to remove all tools, equipment, materials and waste. All laddcra are to be lowered and/or safely stored at the cnd of each day. Any rubbish or waste materials not cleaned up sad properly disposed of by Trade Contractor will result in a backcharge. Track Conmxcror hereby ucconditionatly guarantees all his work 'labor glad mamdAlB co Bui dex 2nd the owner rat purchaser fox the period of Builder's wartanty to the owner of lrttchaser. r v led a.oa .?d WdZT:OT GOOF 60 'daS EGOZ92VLIL : 'ON 9NOHd ANiENISCJ W0072HEH : WOaJ a, Builder agrees to supervise tho work and coordinate the work of other suppliers and trade contractors to enable Trade Contractor to perform its work timely and efficiently, atld Iiuildet agrees that it ,%41 make kbe payments requited hereunder Ptomptly when due. 9. Builder agrees to pay promptly Trade Contractor in his perfortaanoc of his work sad no later than 34 days w,itbin subtainion of any invoice, conditioned upon vet ticctaoa by Builder that the work bas been satisfactorily performed. If payment is not received within this period and Trade Contractor doea not receive notification justifying the delay in payment, Tzadc Contractor may terminate this Agreement upon seven (7) days written notice of his intent to do sea. If Trade (Contractoz does so terminate following said notice, he shall be entitled to receive the reasonable value of all materials and labor incorporated in &,: job to the time of termination and the profit Trade Contractor would normally expect to have been made bad the contract been fully and properly performed, 10. If the Trade Contractor shall become bankrupt, make amignmenr for the benefit of creditors, or otherwise become unable to cart' out the %york or if the Trade Conractor, without proper cause, removes from the work for a period in excess of forty-eight (48) houm, then the Builder tray, by notice in writing or verbal to the Trade Contractor, terrainare tins Agreement if action is not taken to cure said default within twenty-fout (24) hours after Budldees communication of such noace. If Trade Contractors shall in any manner uathtly delay or otherwise acglect to finish his responsibilities, without boa; Ede cause, within the timo hcreiabeforc provided, or otherwise breach any provision of this Ayr, ecm-m; Sunder may, by written or verbal notice as herrinbefore provided, requl= the Trade Contractor to ptroceed with the work within twenty-four (24) hours afar conveyance oi` such, notice or correct any such breach of this AS%, car. within twenty-hour (24) hour period and upon failrue to do so, the Builder shall then have the tight u> terminate this Agreement and to employ any other Trade Contractor to continue: and complete the said work according m said plans and specifications, or arty alterations or additions as hcreinbefore provided, and shall also have the tight to authorize such replacement trade contractor to use any materials or property of the Trade Contractor upon the ground. If the expense to complete the couttwa, in addition to any payments made of the Trade: Contractor hereunder, shall eaeeeal the original subcontract price plus costs for any additional wodc, Trade Cont tactot shall be liable to the Builder feat, such excess surns. 11. In the event Tradc Contractor discovers any inconsistencies or caon in his work with the Builder or other trade contractors in the plane and specificariott„ he shall, before performing said work, promptly bring such matters to the attention of the Builder who shall then give Trade Contractor written losttuctions or directions relative to said inconsistency or error. No claims for additional compensation will be considered and Tzado Contractor shall be entitled to no such additional sums, unless he shall have, if at all possible, brought the inconsistency or error to the Builder°s attention prior to performing any work thereon. 12. Thin .Agreement and every convenant and provision herein shall bird, apply to, and tun in favor of the parties, their successors in interest and their legal representatives. ra?-W M13 zd IddZT:OT S00Z 60 'daS 26OZ92VLTL : 'ON 3NOHd A?J13NIgUO WOO-INIAH : WOJA 13. In conatntiaq this Agreement, the Builder and Trade Contractor way be mot. 4jar one person; that if the context so requiresp the singular pronoun shall be taken to mean and include the plural, the =Kculinq the fcmL%izc, and the ncuter; and that generally all gtatnmacical changes shall be.made, assumad, and implied to tnake the provisions hereof apply equaLly to corporarions and to mdivi.dua s. Tradc Conctactor's Address: RR// odbKS?e IYEL5:e111,246 Linr7DwN, PA i7D5y Business Pbonc:(7 /7) YZ • 9097 Emcrgoncp Pht>ne: (`J/7? l? ?8 - lo(y/8 G'6/-? £N6Y/?[, rax(?? ??i3lQ -aag3 Trade Contractor's rederal TO #: a3- RM 8t5/ Incorporated? Eye$ Ono hL614 L,w? CAB/iYETR.Y 0oc PJ1,2NC. Printcd Trade Conttazw Company Name Accepted and 7-1-1Epp0 .E E. Wa67V4R Ptinted Name of Trade C?vnttauux g ApprovedCr'/'? r "vcc• S:grtature o<Trade Co •tor Ua Custrt Design Group, Tnc. Signs=* of Budder Builder's Address: 2805 O,d Pawt lZoad, Suite 200 ?-.f arrsburg, FA 17110 Business Phone: (717) 252-6027 rcvnm 4103 bd Wd£T:OT 5002 60 'daS £6029£bLTZ : 'ON 3NOHd AN13NISHO WOMJI3H : W08-d Exhibit B Inc. old Post Road, Suite 200 sburg, PA 17110 ORDER DATE: 0212M003 VENDOR: JOB ADDRESS: JOB NUMBER: Lamarco Contracting Inc. Sterling Glen SG005 130 Hillymede Circle at Rt 114 & Woods Road 7JLr , ?,rt Harrisburg PA 17111 Mechanicsburg PA 17050 Project Manager Project Manager Phone: Ted Shaffer 648-5634 Page 1 PLEASE SUPPLY THE FOLLOWING : ITEM ITEM DESCRIPTION LENGTHS QUANTITY UNIT UNIT PRICE TOTAL PRICE V J30--340 HEATING 0020 HVAC as per quote dated Aug 7, 2002 1.00 Lsum 9,495.00 9,495.00 Roughin - $5,697 Equipment Set - $2,849 Finish-$949 Provide the Following: 95,OMTU Furnace w.90+ efficiency 5 tons AC w/10 SEER rating, gas piping to W/H, Kitchen Range, Lenai (ar;« A2S F P Scuttle humidifier, Electrostaic Air Cleaner, programmable T-Stats. Furnace to be installed in the attic area. A seperate WO has been issued to vent the downdraft range Net Order Tax TOTAL ORDER IMPORTANT NOTICE - PLEASE READ Pay CS DR-4VJ 1Rv. 3116 &In/03 `This P.O. is subject to the terms of the Custer Homes "Trade Partner Agreement" I?4LPO-It.E `Payment shall be made on P.O. amount or vendor Invoice, whichever is less. `Return Quality Inspection Report with Invoice. ^ 7raw `Do not begin work unless these terms and conditions are acceptable 6? Inv. b2.l0B "" CHI will not honor additional charges NOT pre-authorized in writing by the Project Manager*" lt.KI L Authorized Signature: _ ? Custer Homes, Inc. DIRECTIONS : 9,495.00 0.00 9,495.00 4f 000.00 3,yq?vo ?I?b00 OD APPROWS, IMPORTANT: PURCHASE ORDER NUMBER MUST APPEAR ON ALL INVOICES JJI CUe l]JY L<. UI 0210212000 13:29 " f oar rtlYL I 7L '232F.1129 LNYPK;U ILA i l i 74 AC C ISTER HOMES rMC CUSTCR HOMES, INC. SQTPLEME rALSUBCONRtACTAGREEIIWN[ The parties to this Construction Agreement are Custer Homes, Inc., "Builder," and d F &t1:1YA-. nJ,_Lv&, "Subcontractor." This Agreement shall govern all labor performed and materud fiut+ished by Subcontractor Our Build= until tither party revokes it by dalive ng written notice of such revocation to the other party If either party revokes this agreement, it shall be null and void for all contracts entered into thereafter. 1. Subcontractor agrees To perform ail work in a workmanlike numner; and To deliver materials which are new and in accordance with the plans and specifications delivered to Subcontractor. Upon receiving notice from Builder that Subcontractor has performed inferior, improper, or unsound labor or delivered materials at variance with which is specified, Subcontractor will, within twwq- four (24) hours, proceed to remove such work or materials and make good all other work or materials damaged thereby. Subcontractor shall not subcontract any part of the work without the prior wnttetr consent of Builder, and such consent shall nor release Subcontractor from any responsibility or liability is connection with the subcontract. 2. It is rmttually understood and agreed between Builder and Subcontractor that Subcontractor is an independent contractor,, that at no time are any of Subcontractor's employees in the employ of Builder, nor is Builder responsible to any of Subcontractor's employees for the payment of their wages; that Subcontractor alone is responsible for compliance with all applicable statutes, ortfmanees, and regulations concerning bit employee's Social Security, Workman's Compamtlon, and all safety conditions and record keeping requirements under the Occupational, Safety and Health Act of 1970 and ameednWO thereto, State and Federal Uution, and licensing. Subcontractor shall maintain, st his Own expense, such insurance as will protect him from workmen's compensation eats and from other claims and damages for personal injury, including desalt, in the nwttmum atrtount of 5300,000. 00, which may Arise from OM14003 under this contract, whether such operation; be by the Subcontractor or by any other subcontractors or hit 4mployer by wyoae directly or indirectly employed by either of them Subcontractor hereby Was to indemnify and hold harmless Bulda from any claims with respect to the maters outlined in the paragraph. A copy of Subcontractor's Certificate of insurance omit be approved in writing by Custer Homes, Inc at least throe (3) days prior to cotmomweroamt of work by Subcoatractor PACE 04 PAGE 02 ?$5/ tvr y »v y c, cr 11 IOO ICI41 t LA MARCO HEATING $ AC PAGE 03 f d2!P2?2PPP 1?:'39 % "3^Fp?3 CUSTER HOMES INC PAGE - - E 03 3. Subcontractor agrees to pay for all materials and aA tabor supplied by Subcontractor for the job when due and to hold Builder and the owner launders from any Gees wising out of labor, material, or subcontracts finnisbed by Subcontractor, Builder shall have the right to require Subcontractor to provide releases by all persons supplying labor, materials, or swvicas to Subcontractor for the job herein described and to withhold final payment until such releases are supplied Subcontractor wlwowledges that it is an independent contractor and agrees to pay all contributions required by law or contract which if unpaid could be an encumbrance upon the real property where the work is performed. 4, Subcontractor agrees to permit other Subcontractors reasonable opportunity for storage of materials and execution of their work and shall properly coordinate its work with theirs. If any part of the work to be performed by Subcootrsotor depends, for proper execution, on the work of other subcontractors or Builder or the owner, Subcontractor shall immediately report conflicts, defects or omissions that render such other work uctimely or unsuitable for execution of its wont. Proceeding with its work without such report of defects is and acceptance by Subcontractor of the work of others that precedes, or is performed simultaneously with, its wont. Should Subcontractor damage work of other subcontractors or Builder, Subcontractor shall pay the cost of repairing such damage and bold Builder and owner harmless. Subcontractor agrees that he will not hold Builder responsible for loss or damage or injury caused by another subcontractor and further agrees to look to said subcontractor for the recovery from it of any such damage or injury Subcontractor shall procure and pay all necessary patmita required for performance by Subcontractor under this agreement which are obtain" by Subcontractor and will protect unlinisbed work and all materials for Subcowractor's use, or incidental thereto, ageiust ev«y kind of damage, including damage by the elernetrts, except demsge by f9re, Una completion of the building. 6. Subcontractor agrees to remove from the site, unless instructed otherwise, rubbish sad waste moterish created by its operation as the work progresses, in order to maintain a clean, safe condidw and, upon completion of its work, to remove all tools, equipment, materials and waste. All ladders are to be lowered ancVor safely stored at the end of each day. Any rubbish or waste materials not cleared up and properly disposed of by Subcontractor will result in a backcharge. Subcontractor hereby unconditionally guarantees an his Wmir, labor sad materials to Builder and the owner or purchaser for the period of Builder's warranty w the owner or purchaser. @2;n2/269O . 9 'f 7?^.26E129 [.'U57ER HOI•IE5 INC PAGE 94 is 8. Budder agrees to supervise the work and coordinate the work of other suppliers and subcontractors to enable Subcontractor to perform its work timely and efficiently, and Builder agrees that it wig make the payments required hereunder promptly when due. Builder agrees to pay promptly Subcontractor in his performance of his work and no later than 30 days within submission of any invoice, conditioned upon verification by Builder that the work has been satisfacxonly performed. If payment is not received within this period and Subcontractor does trot receive notification justifying the delay in payment, Subcontractor may terminate this Agn meant upon seven (7) days written notice of his bsta d to do so. If Subcontractor does so terminate following said notice, he shall be entitled to receive the reasonable value of all materials and labor incorporated in the job to the time of termination and the profit Subcontractor would normally expect to have been nude had the conract been fully and properly performed. 10. If the Subcontractor shalt become bankrupt; make assignment for the benefit of creditors, or otherwise become unable to my out the work or if the Subcontractor, without proper cause, removes from the work fbr a period in excess of forty-eight (48) hours, then the Builder may, by notice in writing or verbal to the Subcontractor, terminate this Agreement if action is not takes to cure said defluit within twenty-Stu (24) boars after Builder's oommutikgdon of such notice. If Subcontractors sball in any mannar unduly delay or otherwise neglect to finish his responaNfities, without bona fide cause, within she time herambefore provided, or otherwise breach any provision of this Agresnem, Builder may, by written or verbal notice as bersinbefore provided, require the Subcontractor to proceed with the woA wd* twenty-four (24) hours after coaveyence of such notice or correct any such breach of this Agreement within twenty-four (7.4) boor period and upon failure to do so, the Budder shall then have the right to terminate this Agreement and to employ any other Subooatrector to cons ew cod complete the said work according to said plane and specdcatiora, or any alteration .or addition as hereinbefom provided, and shalt also have the right to authorize such maplacement subcontractor to use any materials or property of tho Subcontractor upon the ground. If the vgmm to complete the contract, io addition to any payments mane of the Subcontractor hereunder, shag exceed the original subcontract price plus costs for any additional work, Subeomreetor shall be liable to the Budder for such excess sums. 1 L. In the event Subcontrwtor discovers any inconsistencies or errors in his work with the Builder or other subcontractors in the plans and specifications, he shall, before performing said worts, promptly bring such matters to the attention of the Builder who shat then give Subcontractor written instructions or directions relative to said inconsistency or error. No claims for additional compensation will be eoasidered and Subcontractor shaft be entitled to tw such additional sums, unless be shall n 02r'0?;'?FFF 1':24 • '1 ???2fi(4?G PUSTER, KNES IW have, if at all possible, brought the inconsistency or error to the Bun&es attention prior to performing any work thereon. 12. This Agreement and every coevenant and provision herein shall bind, apply to, and tun in favor of the parties, their successors in interest and their legal representatives. 11 in construing this Agreement, the Builder and Subcontractor may be more than one person: that if the context so requires, the singular pronoun shall be taken to mean and include the phual, the masculine, the fenstdtte, and the neuter, and that generally all grammatical changes shall be trade, assumed, and implied to make the provisions hereof apply equally to corporations and to individuals. 1'4M II'Wo AORSSW16 &417k4-7-P-16, Subcontractor Subcontractor's Federal M k Subcontractor's Addrea: _ ii N& ooEv,----- 1..3n f/. %/?M r Oe • Incorporstedl Ives Ono Business Phone: EGG-y11 19 PAGE Or, Eatergency Phone: fit -2 6 9 9r/f Tao/ Accepted and approved Z- -weo Custer Homes, Inc. _Dtiddcr Builder's Address: 1309 Laurel Point Cirele Harrisburg. PA 17110 Business Phone: ___(717)232-6027 0 Custer Homes, Inc. SUPPLEMENTAL TRADE CONTRACTOR AGREEMENT Trade Contractor mustprmide a current Certificate of Insurance, naming, Custer Homes. Inc., as the Certificate Holder. This Certificate must be on file prior to rslease of firstpayment. All Invoices must be issued to Custer Homes, Inc., 2805 Old Post Road Suite 200, Harrisburg, PA 17110. The parties to this Cons ttuction Agreement are Caster Homes, Inc., "Builder," and LaMarco Heating and Cooling , "Trade Contractor." This Agreement shall govern all labor performed and material furnished by Trade Contractor for Builder until either party revokes it by delivering written notice of such revocation to the other party. If either party revokes this agreement, it shall be null and void for all contracts entered into thereafter. Trade Contractor agrees: To perform all work in a workmanlike manner, and To deliver materials which are new and in accordance with the plans and • specifications delivered to Trade Contractor. Upon receiving notice from Builder that Trade Contractor has performed inferior, improper, or unsound labor or delivered materials at variance with which is specified, Trade Contractor will, within twenty-four (24) hours, proceed to remove such work or materials and make good all other work or materials damaged thereby. Trade Contractor shall not subcontract any part of the work without the prior written consent of Builder, and such consent shall not release Trade Contractor from any responsibility or liability in connection with the subcontract 2. It is mutually understood and agreed between Builder and Trade Contractor that Trade Contractor is an independent contractor; that at no time are any of Trade Contractor's employees in the employ of Builder, not is Builder responsible to any of Trade Contractor's employees for the payment of their wages; that Trade Contractor alone is responsible for compliance with all applicable statutes, ordinances, and regulations concerning his employee's Social Security, Workman's Compensation, and all safety conditions and record keeping requirements under the Occupational, Safety and Health Act of 1970 and amendments thereto, State and Federal taxation, and licensing. Trade Contractor shall maintain, at his own expense, such insurance as will protect him from workmen's compensation acts and from other claims and damages for personal injury, including death, in the minimum amount of $500,000.00, which may arise from operations under this contract, whether such operations be by the Trade Contractor or by any other trade contractors or his employer by anyone directly or indirectly employed by either of them. Trade Contractor hereby agrees to indemnify and hold harmless Builder from any claims with respect to the matters outlined in the paragraph. A copy of Trade Contractor's rcvised 4/03 Certificate of Insurance must be approved in writing by Custer Homes, Inc. at least three (3) days prior to commencement of work by Trade Contractor. 3. Trade Contractor agrees to pay for all materials and all labor supplied by Trade • __ Contractor for the job when due and to hold Builder and the owner harmless from any liens arising out of labor, materials, or subcontracts furnished by Trade Contractor. Builder shall have the right to require Trade Contractor to provide releases by all persons supplying labor, materials, or services to Trade Contractor for the job herein described and to withhold final payment until such releases ate supplied. Trade Contractor acknowledges that it is an independent contractor and agrees to pay all contributions required by law or contract which if unpaid could be an encumbrance upon the real property where the work is performed. 4. Trade Contractor agrees to permit other Trade Contractors reasonable opportunity for storage of materials and execution of their work and shall properly coordinate its work with theirs. If any part of the work to be performed by Trade Contractor depends, for proper execution, on the work of other trade contractors or Builder or the owner, Trade Contractor shall immediately report conflicts, defects or omissions that render such other work untimely or unsuitable for execution of its work. Proceeding with its work without such report of defects is and acceptance by Trade Contractor of the work of others that precedes, or is performed simultaneously with, its work. Should Trade Contractor damage work of other trade contractors or Builder, Trade Contractor shall pay the cost of repairing such damage and hold Builder and owner harmless. Trade Contractor agrees that he will not hold Builder is responsible for loss or damage or injury caused by another trade contractor and further agrees to look to said trade contractor for the recovery from it of any such damage or injury. 5. Trade Contractor shall procure and pay all necessary permits required for performance by Trade Contractor under this agreement which are obtainable by Trade Contractor and will protect unfinished work and all materials for Trade Contractor's use, or incidental thereto, against every kind of damage, including damage by the elements, except damage by fire, until completion of the building. 6. Trade Contractor agrees to place debris in Builder's dumpster, unless instructed otherwise, rubbish and waste materials created by its operation as the work progresses, in order to maintain a clean, safe condition and, upon completion of its work, to remove all tools, equipment, materials and waste. All ladders are to be lowered and/or safely stored at the end of each day. Any rubbish or waste materials not cleaned up and properly disposed of by Trade Contractor will result in a backcharge. 7. Trade Contractor hereby unconditionally guarantees all his work, labor and materials to Builder and the owner or purchaser for the period of Builder's warranty to the owner or purchaser. 8. Builder agrees to supervise the work and coordinate the work of other suppliers and trade contractors to enable Trade Contractor to perform its work timely and revised 4/03 ,X efficiently, and Builder agrees that it will make the payments required hereunder promptly when due. • 9. Builder agrees to pay promptly Trade Contractor in his performance of his work and no later than 30 days within submission of any invoice, conditioned upon verification by Builder that the work has been satisfactorily performed. If payment is not received within this period and Trade Contractor does not receive notification justifying the delay in payment, Trade Contractor may terminate this Agreement upon seven (7) days written notice of his intent to do so. If Trade Contractor does so terminate following said notice, he shall be entitled to receive the reasonable value of all materials and labor incorporated in the job to the time of termination and the profit Trade Contractor would normally expect to have been made had the contract been fully and properly performed. 10. If the Trade Contractor shall become bankrupt, make assignment for the benefit of creditors, or otherwise become unable to carry out the work or if the Trade Contractor, without proper cause, removes from the work for a period in excess of forty-eight (48) hours, then the Builder may, by notice in writing or verbal to the Trade Contractor, terminate this Agreement if action is not taken to cure said default within twenty-four (24) hours after Builder's communication of such notice. If Trade Contractors shall in any manner unduly delay or otherwise neglect to finish his responsibilities, without bona fide cause, within the time hereinbefore provided, or otherwise breach any provision of this Agreement, Builder may, by written or verbal notice as heteinbefore provided, require the Trade Contractor to proceed with the work within twenty-four (24) hours after conveyance of such notice or correct any • such breach of this Agreement within twenty-four (24) hour period and upon failure to do so, the Builder shall then have the tight to terminate this Agreement and to employ any other Trade Contractor to continue and complete the said work according to said plans and specifications, or any alterations or additions as hereinbefore provided, and shall also have the tight to authorize such replacement trade contractor to use any materials or property of the Trade Contractor upon the ground. If the expense to complete the contract, in addition to any payments made of the Trade Contractor hereunder, shall exceed the original subcontract price plus costs for any additional work, Trade Contractor shall be liable to the Builder for such excess sums. 11. In the event Trade Contractor discovers any inconsistencies or errors in his work with the Builder or other trade contractors in the plans and specifications, he shall, before performing said work, promptly bring such matters-to the attention of the Builder who shall then give Trade Contractor written instructions or directions relative to said inconsistency or error. No claims for additional compensation will be considered and Trade Contractor shall be entitled to no such additional sums, unless he shall have, if at all possible, brought the inconsistency or error to the Builder's attention prior to performing any work thereon. 12. This Agreement and every convenant and provision herein shall bind, apply to, and run in favor of the parties, their successors in interest and their legal representatives. • 13. In construing this Agreement, the Builder and Trade Contractor may be more than one person; that if the context so requires, the singular pronoun shall be taken to mean and include the plural, the masculine, the feminine, and the neuter; and that revised 4/03 generally all grammatical changes shall be made, assumed, and implied to make the provisions hereof apply equally to corporations and to individuals. Trade Contractor's Address: /3d 1,x•1/YM&ne &-' H?7C?isddr? R . / 7/t/ y+ Business Phone: 717 `/y/ / Emergency Phone: 7/7 S.f`/- 2 z 3 --? Fax: -17 .764 - 4IS-1 y Trade Contractor's Federal ID #: Incorporated? ayes Qno LaMarco Heating and Cooling Printed Trade Contractor Company Name Printed a of Trade Contractor Accepted and Approved Signature o Trade Contractor Dat Custer Homes, Inc. Signature of Builder Builder's Address: 2805 Old Post Road, Suite 200 Harrisburg, PA 17110 Business Phone: (717) 232-6027 0 0 revised 4/03 Terms and Conditions • • r 1 Construction Rea tirements: The work of all Trade Contractors, their employees, and/or trades is expected to be performed in a good and workmanlike manner. Workmanlike quality is defined as workmanship which rnem or betters those criteria indicated in the construction plans, The Company's Scope of Work and defined by industry standards for each trade. Inspection Reports: The Trade Contractor and a Company representative shall walk the job together and complete each section of the inspection report(s). The Trade Contractor must corta:t any deficiency, found during the inspection and the job must be 100-percent complete before payment will be made. The Trade Contractor and a Company representative must sign-off on all sections of the inspection reports(s) attesting that the job is correct and complete. Punch-List: The site superintendent shall inspect the work of each Trade Contractor and will issue a punch-list of all items requiring correction in soon as the Trade Contractor has completed his or her work The Trade Contractor is expected to irnmediamly complete their punch-list so dat he or she does not slow down the overall construction of the home and/or the scheduling of the next trade contractor. Should the Trade Contractor not return to complete his or her punch-list within a reasonable time than the site superintendent may hue someone to complete the punch-list and the Trade Contractor will be back charged for this work The job will not be considered in be complete and no payment shall be made until all punch-list items are completed and approved by the site superintendent. Homeowner's Walk Throuah List: Any items found on the homeowners walk-through that require correction must be completed immediately upon notification by the site superintendent Time is of the essence for completing corrections on homeowner's walk-throughs. If any Trade Contractor does not return to correct his or her items listed on the walk-through list then someone else will be hired to make the correctiom and the Trade Contractor will be back charged. Safety: The Trade Contractor acknowledges that he or she has/will complete the Safety Training programs as required by The Company and that he or she has his or her own Safety and Haz-Com program for their employees and/or trade contractors. Trade Contractor agrees to comply with OSHA and/or any other governmental agency's safety rules and regulations. Should any citations, fines, and/or penalties, etc., be incurred by The Company due to the negligence of the Trade Contractor, the Trade Contractor agrees to indemnify The Company for any and all penalties, fines, etc., incurred. Insurance: [Trade Contractor acknowledges that a requirement of working for The Company is for the Trade Contractor to have current Worker's Compensation and General Liability Insurance at all times. The Trade Contractor agrees to indemnify The Company and to be responsible for any claims, expenses, or litigation arising from any claim made against The Company due many injury of the Trade Contractor's employee or trade contractor for any worker's compensation claim. The Trade Contractor also agrees to indemnify The Company and to be responsible for any claims, expenses, or litigation arising from any claim made against The Company due to the workmanship, equipment, or materials supplied by the Trade Contractor] It is your responsibility to notify us immediately if your insurance is canceled for any reason. No Trade Contractor is allowed to work without current insurance. Should you fail to notify us and we are notified of your uninsured status by someone other than you, you will be removed from our list of approved Trade Contractors and all money due you for any work will be withheld, in full, until you have current insurance and we have received a new original Certificate of Insurance. Security: The Trade Contractor is responsible for closing and locking all windows and doors before leaving the job site a the and of each day. If there is a problem on thejob site due to Trade Contractor not closing and locking all windows and doom the Trade Contractor shall be responsible for said negligence. Cleanliness: The Trade Contractor is responsible for leaving the work area claim and free of debris. If it is necessary fm The Company in remove debris left by the Trade Contractor, the Trade Connector will be assessed a minimum clean-up fee of 5100.00. The site superintendent or other The company representative will designate an area for all building debris and trash to be placed. Such area may be a dumpster or a designated trash pile on the lot Trash, such as lunch or snack trash, is not no be thrown on the Floor of the house or on the jobsite. All such hash must be placed in the trash basket/can/dumpster and properly secured so as in not blow away. Porter johns are provided on all job sites. Any person found using sinks, tubs, commodes that are not hooked up, ductwork closets, etc., as a toilet will be fined $100.00 and will not be allowed back on any of The Company's jobsites. It is the responsibility of the Trade Contractor to impress on his or her employees and trade contractors that this offensive habit of using any area as a toilet facility will not be tolerated. Warranty: All work is to be guaranteed for one (l) year from date of closing of the house. Certain items must be guaranteed for (2) years. These items are details in The Company's printed Limited Warranty booklet. The Trade Contractor acknowledges that he or she received a copy of The Company's printed Limited Warranty booklet and that he or she agrees to abide by the warranty coverage requirements and time period printed in this document as they pertain to his or her mule. Drna-Free Workplace. The Company is a drug-five workplace. The use of any controlled substances (dmgs) or alcohol on any of The Company's jobsite(s) is not permitted. Should the Trade Contractor, his or her employees and/or trade contractors be found to be in possession of either drugs or alcohol on mejobsim(s) the Trade Contractor will be requested to leave the jobsite and will not be allowed to return to work until the problem is corrected Priciez/Chamm Orden: All work is quoted and priced per home. Payment will be made per the price listed on the purchase order. Any change order will be priced per change order. No additional work will be considered, allowed, or paid other that thin priced on the purchase order. Should the Trade Contractor be requested in perform any additional work the Trade Contractor must request a hand purchase order from the site superintendent before additional work is performed. Purchase Order Number. No invoice shall be paid than does not include the purchase order number for the job. The preprinted Request for Payment issued by The Company will be used as the invoice. Trade Contractor shall not begin work before The Company has issued a Purchase Order. Damaae and/or Wastefulness of Materials: Damage to materials and installed items such as flooring, windows, cabinetry, fixtures, etc., caused by negligence on the part of the Trade Contractor, his or her employees and/or trade contractors will result in backcharges for the amount necessary to replace or repair the item. Wastefulness of materials by the Trade Contractor will result in the cost of the material being deducted from payment due the Trade Contractor. Proof of Name and IRS ID Number: The IRS requires that we have on file in our office proof that the name and Federal ID number (or Social Security number) that you are working under is the same as is on file with the IRS. We require a copy of a document from the IRS showing your name and m number (Federal M for businesses or Social Security number for individuals). You also will be asked to complete a Forth W-9. Without this documentation the IRS requires that we withhold 20 percent of all money due you, which must then be forwarded to the IRS. The "insured name" on your insurance certificate must match the name on the documents above and the W-9. All checks will be made payable in the name an the above. No insurance certificate will be accepted as valid that reflects a different name from the one on toe above-described documents. nature of Trade Contractor Date Exhibit C Harrisburg Claims Service Office P.O. Box 3880 Harrisburg, PA 17105-3880 800.942.9715 Phone 717.230.8200 Phone 800.833.9422 Claims-Mgt Fax 717.221.6062 Claims-Mgt Fax w .PennNatiomulnsumnce.com May 19, 2005 Rhoads & Sinon Attn: Jennifer Zimmerman P.O. Box 1146 Harrisburg, PA 17108-1146 RE: Our Claim No: 02707761 Our Insured: LaMaroo Contracting Date of Loss: 1120104 Your Client: Heirloom Cabinetry Claimant: Stephen Neiman Dear Ms. Zimmerman: PENN NATIONAL INSURANCE This letter will acknowledge receipt of your correspondence dated May 17, 2005. As I have previously advised your client directly, we have denied liability on behalf of LaMarco Contracting for the damages to the cabinetry constructed by your client. According to the expert we retained, the humidity level increase from the minor leak which occurred in January was not enough to result in the substantial cracking to all of the laminated pieces of wood. Mr. LaMarco was maintaining the humidity levels in the house according to the requests of Stan Custer of Custer Homes. The levels did not rise throughout the entire dwelling enough to cause the damages alleged. The only humidity levels taken were near the leak in the closet area connecting the dining room and kitchen areas. The hardwood floors immediately next to the closet were initially warped, but returned to their original condition. The cabinet damage was sustained throughout the entire dwelling, including the bedroom, which was the furthest distance away from the leak. No evidence has been presented which indicates that the humidity levels in the home resulted in the damages as claimed. Therefore, we are maintaining our position of denial. If you take legal action, we simply request a courtesy copy of the complaint. Sincerely, 1A14Q Heather Arnold, AIC, AIM, AIS, SCLA Team Leader I C? w SHERIFF'S RETURN - OUT OF COUNTY i CASE NO: 2006-04482 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CUSTER DESIGN GROUP INC VS LAMARCO CONTRACTING INC R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT LAMARCO CONTRACTING INC but was unable to locate Them deputized the sheriff of DAUPHIN to wit: in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On August 24th , 2006 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge Dep Dauphin Co Postage So answe - 18.00 9.00 10.00 R. Thomas Kline 37.25 Sheriff of Cumberland County 1.98 7 6 .2 3 / y12 08/24/2006 RHOADS & SINON Sworn and subscribe to before me this day of A. D. In The Curt of Common Pleas of Cumberland County, Peniasylvania Custer Design Group Inc et al VS. Lamarco Contracting Inc 06-4482 civil No. Now, August 9, 2006 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. 01 Sheriff of Cumberland County, PA Affidavit of Service Now, _ within 20 , at o'clock upon at by handing to a and made known to Sheriff of Sworn and subscribed before me this day of , 20 copy of the original M. served the the contents thereof. So answers, COSTS SERVICE MILEAGE AFFIDAVIT County, PA S (???itE of Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania CUSTER DESIGN GROUP INC FOR THE BENEFI vs County of Dauphin LAMARCO CONTRACTING INC Sheriff's Return No. 1359-T - - -2006 OTHER COUNTY NO. 06-4482 CV I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for LAMARCO CONTRACTING INC the DEFENDANT named in the within COMPLAINT and that I am unable to find him/her in the County of Dauphin, and therefore return same NOT FOUND, August 15, 2006 DEFENDANT HAS NOT BEEN AT THIS ADDRESS FOR AT LEAST 11 YEARS; NO BETTER ADDRESS AVAILABLE. Sworn and subscribed to before me this 16TH day of AUGUST, 2006 1114 A---11 NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept 1, 2006 So Answers, ? ? e;l*? Sheriff of auphin CouxQty, Pa. By Deputy Sheriff Sheriff's Costs:$37.25 PD 08/10/2006 RCPT NO 220488 GMILLER Thomas J. Nehilla, Esquire Attorney I.D. No. 67326 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff CUSTER DESIGN GROUP, INC., for the IN THE COURT OF COMMON PLEAS benefit of HEIRLOOM CABINETRY OF CUMBERLAND COUNTY, PENNSYLVANIA, INC. PENNSYLVANIA Plaintiff CIVIL ACTION - LAW V. NO. blo-yy8a LAMARCO CONTRACTING, INC. Defendant JURY TRIAL DEMANDED PRAECIPE TO REINSTATE COMPLAINT Kindly reinstate the Complaint that was originally filed in the above-captioned matter on August 4, 2006. Respectfully submitted, RHOADS & SINON LLP Date: September 29, 2006 By: T "as J. eV la Jennifer Zimmerman One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Heirloom Cabinetry of Pennsylvania 430677.1 CERTIFICATE OF SERVICE I hereby certify that on this 29th day of September 2006, a true and correct copy of the foregoing Praecipe to Reinstate Complaint was served by means of United States mail, first class, postage prepaid, upon the following: Romeo LaMarco 130 Hillymede Circle Harrisburg, PA 17111 Londa Coulter 0 ?Al Vr Plt (NO 0( b s?°r?,aa?r?c2 ?o.?DrtB .,? ? z SHERIFF'S RETURN - OUT OF COUNTY 1` ..y CASE NO: 2006-04482 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CUSTER DESIGN GROUP INC VS LAMARCO CONTRACTING INC R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT LAMARCO CONTRACTING INC but was unable to locate Them deputized the sheriff of DAUPHIN serve the within COMPLAINT & NOTICE County, Pennsylvania, to On November 13th , 2006 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: So answe Docketing 18.00 Out of County 9.00 Surcharge 10.00 Thomas Kline Dep Dauphin Co 35.25 Sheriff of Cumberland County Postage 1.74 73.99 11/13/2006 RHOADS & SINON Sworn and subscribe to before me this day of to wit: in his bailiwick. He therefore A. D. 'In The Court of Common ]Pleas of Cumberland County, Pennsylvania Custer Design Group Inc vs. Lworco Contracting Inc No. 06-4482 civil Now, October 11, 2006 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize. the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Now, within upon at by handing to a and made known to Affidavit of Service 2Q , at o'clock M. served the copy of the original So answers, the contents thereof. Sheriff of . County, PA Sworn and subscribed before me this day of , 20 COSTS SERVICE $ NMEAGE AFFIDAVIT Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania CUSTER DESIGN GROUP INC FOR THE BENEFI vs County of Dauphin LAMARCO CONTRACTING INC Sheriff's Return No. 1678-T - - -2006 OTHER COUNTY NO. 06-4482 CV AND NOW:November 2, 2006 REINSTATED COMPLAINT upon LAMARCO CONTRACTING INC by personally handing SERVE: ROMEO LAMARCO to DEFENDANT 1 true attested copy(ies) of the original REINSTATED COMPLAINT and making known to him/her the contents thereof at DAUPHIN COUNTY SHERIFF'S OFFICE DAUPHIN COUNTY COURTHOUSE HBG, PA 00000-0000 Sworn and subscribed to before me this 2ND day of NOVEMBER, 2006 So Answers, ? /( e;l*? V NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept. 1, 2010 offt-ce of 14B 6*4Prtff at 10:09AM served the within Sheriff of Dauphin County, Pa. By /17, Dep Sheriff Sheriff's Costs: 35.25 PD 10/16/2006 RCPT NO 222499 HOFFMAN Thomas J. Nehilla, Esquire Attorney I.D. No. 67326 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff CUSTER DESIGN GROUP, INC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiff V. LAMARCO CONTRACTING, INC Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-4482 Civil JURY TRIAL DEMANDED MOTION FOR LEAVE TO AMEND THE COMPLAINT PURSUANT TO PA.R.CIV.P. 1033 Plaintiff, Custer Design Group, Inc. for the benefit of Heirloom Cabinetry of Pennsylvania, Inc., ("Plaintiff') by its attorneys, Rhoads & Sinon LLP, files this Motion for Leave to File Amended Complaint, stating as follows: 1. Plaintiff initiated this action by Complaint on August 4, 2006. 2. In the Complaint, Plaintiff alleges that Plaintiff and Defendant entered into purchase orders for HVAC work at the residence of Steven Neiman residence located at 3 Springdale Way, Mechanicsburg, Pennsylvania ("Neiman Residence"). 3. The Complaint further alleges that, thereafter, Defendant breached its contract with Plaintiff by failing to install the HVAC system at the Neiman Residence in a workmanlike manner and in accordance with industry standards. 4. The Complaint contains claims for breach of contract. 627774.1 5. Pa. R.Civ.P. 1033 allows amendment of a complaint at any time. This rule also allows amendment to aver transactions that have happened before or after the filing of the original pleading even though they give rise to a new cause of action. 6. Leave to amend a pleading should be liberally granted at any stage of the pleadings unless there is an error of law or resulting prejudice to an adverse party. See Connor v. Allegheny General Hospital, 501 Pa. 306, 310, 461 A.2d 600, 602 (1983). Further, the right to amend pleadings is normally granted with liberality so as to secure the determination of cases on their merits whenever possible. 7. Plaintiff seeks to amend the complaint to add Heirloom Cabinetry of Pennsylvania, Inc. as a party and include a claim of negligence against the Defendant. 8. This proposed amended pleading amplifies existing causes of action, and is intended to conform the Complaint to the evidence that will be presented. 9. Plaintiff is not proposing to materially change the facts alleged in the complaint because Plaintiff has already alleged facts that support such a claim. 10. The same evidence, parties, discovery, facts will be used to prove the negligence claim as will be used to prove the breach of contract claim in the Complaint. 11. Defendant is not prejudiced by the proposed amendment since the Defendant has not yet filed an Answer to the Complaint. 2 WHEREFORE, the Plaintiff, Custer Design Group, Inc. for the benefit of Heirloom Cabinetry of Pennsylvania, Inc. respectfully requests that this Court allow it to amend his Complaint in the form attached. Respectfully submitted, RHOADS & SINON LLP By: (J?- Tho6as J. eh a PA I.D. No. 7326 Jennifer Zimmerman PA I.D. No. 89459 P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 3 Thomas J. Nehilla, Esquire Attorney I.D. No. 67326 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff CUSTER DESIGN GROUP, INC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. And : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION - LAW : NO. 06-4482 Civil HEIRLOOM CABINETRY OF : PENNSYLVANIA, INC. Plaintiffs JURY TRIAL DEMANDED V. LAMARCO CONTRACTING, INC. Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim 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 YOU 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 Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3199 576938.3 Thomas J. Nehilla, Esquire Attorney I.D. No. 67326 Jennifer "Zimmerman, Esquire Attorney I.D. No. 89459 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys ttorneysfor Plaintiff CUSTER DESIGN GROUP, INC., for IN THE COURT OF COMMON PLEAS the benefit of HEIRLOOM CUMBERLAND COUNTY, CABINETRY OF PENNSYLVANIA, PENNSYLVANIA INC. And HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiffs V. CIVIL ACTION - LAW NO. 06-4482 Civil JURY TRIAL DEMANDED LAMARCO CONTRACTING, INC. Defendant AMENDED COMPLAINT NOW COMES, Custer Design Group, Inc. for the benefit of Heirloom Cabinetry of Pennsylvania, Inc., and Heirloom Cabinetry of Pennsylvania, Inc. by their attorneys, Rhoads & Sinon LLP, and hereby submit the within Complaint against LaMarco Contracting, Inc., and avers as follows: 1. Custer Design Group, Inc. ("Custer") is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania having an address of 2805 Old Post Road, Harrisburg, Pennsylvania 17110. Custer's principal business is serving as a general contractor constructing residential homes. 2. Heirloom Cabinetry of Pennsylvania, Inc. ("Heirloom") is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania having an address of RR 4 Box 390, Nelson Road, Mifflintown, Pennsylvania 17059. Heirloom's principal business is constructing and installing wood cabinetry as well as constructing wood furniture. 3. LaMarco Contracting, Inc. ("LaMarco" or "Defendant"), upon information and belief, is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania and has a registered address of 130 Hillymeade Circle, Harrisburg, PA 17111. LaMarco is an HVAC contractor. 4. Steven Neiman, owner of property located at 3 Springdale Way, Mechanicsburg, Cumberland County, Pennsylvania ("Neiman"), contracted with Custer, as General Contractor, for the construction of a residence on his property located at 3 Springdale Way ("Neiman Residence"). 5. Custer entered into a Supplemental Trade Contractor Agreement on or about October 2003 with Heirloom ("Heirloom Subcontract") for the construction and installation of cherry and pear wood cabinetry and paneling in dining room, family room, office, master bedroom and master bathroom in the Neiman Residence ("Heirloom Cabinetry"). Heirloom also constructed several pieces of wood furniture for the Neiman Residence, including, but not limited to, an entertainment center, a bed, a desk, and a dining room suite ("Heirloom Furniture"). A true and correct copy of the Heirloom Subcontract is attached hereto as Exhibit "A" and incorporated herein by reference. 6. Custer, through purchase orders, subcontracted with LaMarco for the installation of the HVAC system in the Neiman Residence and the purchase orders were subject to Supplemental Trade Contractor Agreements (collectively referred to as "LaMarco Subcontract"). A true and correct copy of the LaMarco Subcontract is attached hereto as Exhibit "B" and incorporated herein by reference. 7. LaMarco installed an HVAC system in the Neiman Residence on or around October 2003, by suspending part of the system above the ceiling in the dining room. 8. In accordance with the LaMarco Subcontract, LaMarco was to perform all work in the Neiman Residence in a good workmanlike manner. See LaMarco Subcontract, ¶ 1. 9. LaMarco owed a general duty to install the HVAC system in the Neiman Residence in a workmanlike manner and in accordance with all industry standards and practices and all applicable building codes. 10. During the initial installation of the HVAC system, LaMarco failed to properly install the HVAC system in the Neiman Residence. The improper installation included, but was not limited to, the failure to install an appropriate overflow condensation pan or drain for the humidifier which was suspended above the dining room ceiling. 11. On or around October 2003, and as a direct result of LaMarco's failure to install the appropriate condensation pan, water dripped and accumulated directly on the ceiling frame above the dining room which caused water marks on the ceiling and water to leak through the ceiling and stream down the sides of the walls onto the dining room floor. 12. Additionally, water dripped down the inside of the dining room walls and accumulated under the hardwood floors throughout the house which caused the hardwood floor to buckle and cup and the cabinetry in the family room, the master bedroom and bathroom as well as the dining room table and office desktop to crack. 13. Within a short period of time after the above-mentioned cupping and cracking were first noticed, water started dripping from the dining room ceiling. 14. At that time, the wood flooring subcontractor, Restorations Unlimited, tested the humidity levels throughout the entire house, and specifically where the Heirloom Cabinetry and hardwood flooring were located in the dining room, family room, office, master bedroom and master bathroom. 15. After the water leakage occurred, the humidity levels in the Neiman Residence were, at times, extremely high, and at times, below normal. The humidity levels were at such an abnormal level throughout the house that it damaged the hardwood floors and permanently damaged the Heirloom wood used to construct the Heirloom Cabinetry and the Heirloom Furniture. 16. The humidity levels were abnormal for at least three to four weeks because it took a significant amount of time to remove the excess humidity from the air and the wood flooring after the dining room leaks. 17. At no time did Custer, nor any of its officers, directors, agents or employees, direct LaMarco to alter or maintain the level of moisture in any manner in the Neiman Residence. 18. Due to the abnormal humidity levels, the damage to the maple hardwood floor and the Heirloom wood occurred throughout the entire house, not just in the dining room where the water problems occurred. 19. The cabinetry and furniture installed and constructed by Heirloom permanently cracked and suffered water damage as a result of the abnormal humidity levels and the water leakage that occurred due to LaMarco's improper installation of the HVAC system. 20. Due to the damage to the Heirloom Cabinetry and Heirloom Furniture, Heirloom had to completely replace the bathroom, bedroom and office cabinetry at a total cost to Heirloom of $34,558.00. 21. In addition to the wood damage, as a direct result of the water leakage and the abnormal humidity levels, the drywall, which was installed by Custer, cracked in the areas of the house where the Heirloom Cabinetry was located. 22. Custer replaced much of the damaged drywall in the rooms where the Heirloom Cabinetry was located due to significant cracking. Custer also repainted the affected areas, replaced a large portion of the laundry room floor, and replaced the dining room ceiling which were all damaged as a result of the water leaks. 23. LaMarco's insurance company, Penn National Insurance, reimbursed Custer for Custer's costs in replacing and repainting the damaged drywall due to LaMarco's improper installation of the HVAC system. 24. The entire heating and air conditioning system, installed by LaMarco, including the humidifier system, is being reengineered and rebuilt by a new HVAC subcontractor because the system never worked properly due to LaMarco's improper installation. 25. In addition, the new HVAC subcontractor installed a pipe to drain the system, which LaMarco failed to install. 26. Heirloom completed the replacement of the family room cabinetry in June 2005. 27. There have not been any problems with cracking in the furniture and cabinetry since it was replaced by Heirloom, after the humidity and water problems were resolved. 28. Heirloom sought reimbursement from LaMarco's insurance company, Penn National Insurance, for the costs of replacing the cabinetry and furniture, however, the insurance company denied payment of the claim, even though it paid Custer's claim which resulted from the same damage based on the fact that it was Penn National's opinion that the wood was defective. A true and correct copy of the Penn National denial letter is attached hereto as Exhibit "C" and incorporated herein by reference. 29. Based upon the fact that there have not been any problems with cracking in the furniture and cabinetry since it was replaced by Heirloom, it now has become evident that the damages Heirloom sustained are a result of LaMarco's failure to exercise reasonable care in installing the HVAC system. COUNT I - BREACH OF CONTRACT Custer v. Defendant 30. The foregoing paragraphs are incorporated herein by reference as if set forth here at length. 31. Custer and LaMarco had a contract for LaMarco to install the HVAC System in the Neiman Residence. 32. LaMarco owed Custer a duty to install the HVAC system in the Neiman Residence in a workmanlike manner and in accordance with all industry standards and practices and all applicable building codes. 33. LaMarco's failure to properly install the HVAC system in a manner that the system did not leak was a breach of these duties and directly resulted in damages as alleged herein. 34. LaMarco's actions as described herein were wanton, outrageous and reckless, thereby justifying an award of punitive damages and attorneys' fees. COUNT II - NEGLIGENCE Heirloom v. Defendant 35. The foregoing paragraphs are incorporated herein by reference as if set forth here at length. 36. LaMarco owed a duty to construct the Neiman Residence in accordance with all industry standards and practices and all applicable building codes. 37. LaMarco's failure to properly install the HVAC system in a manner that the system did not leak was a breach of these duties and directly resulted in damages to Heirloom as alleged herein. 38. Defendant' actions as described herein were wanton, outrageous, reckless and indifferent to the health, safety and welfare of Plaintiff, thereby justifying an award of punitive damages and attorneys fees. WHEREFORE, Plaintiffs, Custer Design Group, Inc., for the benefit of Heirloom Cabinetry of Pennsylvania, Inc. and Heirloom Cabinetry of Pennsylvania, Inc. respectfully request this Court enter judgment in favor of Plaintiffs and against Defendant LaMarco Contracting, Inc., in the amount of $34,558.00, plus interest, punitive damages, attorneys fees, and all other costs advanced by Plaintiff. Respectfully submitted, RHOADS & SINON LLP DATED: December , 2006 By: Thomas J. Nehilla PA I.D. No. 67326 Jennifer Zimmerman PA I.D. No. 89459 P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff f'.1.) ? .1 :J f G r ?li 'V1U:?1Ja 6i- i.)]::YW" Lsj<fvV.. Tbaodore ',X a:;r.er, Jr-, vr,'sidenl, of Ha'irlco;:n C :ibincTn oC -:c., ??^05 5 nd says. sujl:]ecr to the p na-jll?3s of IS Pa. C.`.. 3 49014 relalin?:, o t.nsW-)rn. IL; siflraticn t, aut:norit es, that he i:, the f ,;,tcle,i of Heiflootn Cab1.-?ctfy of j? C`S:yl?'c']?le. inc., t?'al: he I:la:K?`.i t.:i,;5 VGI'Silcato.,-l b, its c.Lt?10i1i)r and t tat Lill I (; 0 et ,orth in Cbe ?om'clainr Pze true ?tjj c=t 44, t? tt e ?e;;t of ]us.her ct;o?vle:d e, ;r?t??r°atio anti brlict 1 Date T cot urz E. Wag :e:, Jx FTeside1} / Heirloom C2bin?try Of PeaaSV'.va. a, 11li c. ! ij t'_, T :Tft +F1 i?1? ??? ?q Z63E92b,2_TL ON 3NOHd .',Jl3NI3U__i LJO0-1 I?3H I ii:?_! , CERTIFICATE OF SERVICE I hereby certify that on December 26, 2006, a true and correct copy of the Motion for Leave to File Amended Complaint, was served by first class mail upon the following: LaMarco Contracting, Inc. 130 Hillymede Circle Harrisburg, PA 17111 Defendant 4 CUSTER DESIGN GROUP, INC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiff V. LAMARCO CONTRACTING, INC Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-4482 Civil 4 JURY TRIAL DEMANDED ORDER AND NOW, this 044 day of 207, upon consideration of the foregoing petition, it is hereby ordered that (1) a rule is issued upon the respondents to show cause why the petitioner is not entitled to the relief requested; (2) the respondents shall file an answer to the petition within k days of this date; (3) the petition shall be decided under Pa.R.C.P. No. 206.7; (4) depositions shall be completed within W days of this date; (5) argument shall be held on ?, 2007 in Courtroom 3 of the Cumberland County Courthouse; and (6) notice of the entry of this order shall be provided to all parties by the petitioner. T: J. 9 '1 :5 Parties to be provided notice of this Order: Thomas J. Nehilla Jennifer Zimmerman Rhoads & Sinon LLP P.O. Box 1146 Harrisburg, PA 17108-1146 Attorneys for Plaintiff LaMarco Contracting, Inc. 130 Hillymede Circle Harrisburg, PA 17111 Defendant Thomas J. Nehilla, Esquire Attorney I.D. No. 67326 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff CUSTER DESIGN GROUP, INC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-4482 Civil LAMARCO CONTRACTING, INC. Defendant : I JURY TRIAL DEMANDED MOTION FOR RULE ABSOLUTE Plaintiff, Custer Design Group, Inc. for the benefit of Heirloom Cabinetry of Pennsylvania, Inc., ("Plaintiff') by its attorneys, Rhoads & Sinon LLP, files this Motion for Rule Absolute: 1. On or about December 26, 2006 Plaintiff filed a Motion for Leave to Amend Complaint in the action pending against LaMarco Contracting, Inc. ("Defendant" or "LaMarco"). 2. On or about January 2, 2007, the Court entered an Order issuing a Rule upon LaMarco to show cause as to why Plaintiff would not be entitled to amend the Complaint. A true and correct copy of the Order is attached hereto as Exhibit A. 3. Counsel for Plaintiff served Defendant with the Order on January 5, 2007 pursuant to the Certificate of Service. A true and correct copy of the Certificate of Service is attached hereto as Exhibit B. 4. The Rule issued was returnable within twenty (20) days of the date of the Order. 638061.1 5. Twenty (20) days have passed since service of said Rule. 6. LaMarco has failed to file an Answer or any type of response in accordance with the Order dated January 2, 2007. WHEREFORE, the Plaintiff, Custer Design Group, Inc. for the benefit of Heirloom Cabinetry of Pennsylvania, Inc. respectfully requests that this Court. make its January 2, 2007 Rule Absolute, as set forth in the attached proposed Order, thereby allowing it to amend its Complaint in the form attached to the Motion for Leave to Amend. By: Respectfully submitted, RHOADS & SINON LLP Tho as J. i la Je nifer Zimmerman One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Exhibit A CUSTER DESIGN GROUP, INC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiff V. LAMARCO CONTRACTING, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-4482 Civil JURY TRIAL DEMANDED ORDER own" e` day of 2006, upon consideration of the AND NOW, this r-. foregoing petition, it is hereby ordered that (1) a rule is issued upon the respondents to show cause. why the petitioner is not entitled to the relief requested; (2) the respondents shall file an answer to the petition within days of this date; (3) the petition shall be decided under Pa.R.C.P. No. 206.7; (4) depositions shall be completed within days of this date; (5) argument shall be held on &a, 2007 in Courtroom of the Cumberland County Courthouse; and (6) notice of the entry of this order shall be provided to all parties by the petitioner. ,BY THE COURT: ?f J. Parties to be provided notice of this Order: Thomas J. Nehilla Jennifer Zimmerman Rhoads & Sinon LLP P.O. Box 1146 Harrisburg, PA 17108-1146 Attorneys for Plaintiff LaMarco Contracting, Inc. 130 Hillymede Circle Harrisburg, PA 17111 Defendant Exhibit B CERTIFICATE OF SERVICE I hereby certify that on this 5th day of January, 2007, a true and correct copy of the foregoing Order was served by means of United States mail, first class, postage prepaid, upon the following: LaMarco Contracting, Inc. 130 Hillymede Circle Harrisburg, PA 17111 ?a 635547.1 CERTIFICATE OF SERVICE I hereby certify that on January 24, 2007, a true and correct copy of the foregoing was served via United States Mail, First Class, Postage Prepaid, upon the following: LaMarco Contracting, Inc. 130 Hillymede Circle Harrisburg, PA 17111 c` 1 ` 3 JAN $ 6 20070Y CUSTER DESIGN GROUP, INC., for the IN THE COURT OF COMMON PLEAS benefit of HEIRLOOM CABINETRY OF CUMBERLAND COUNTY, PENNSYLVANIA, INC. PENNSYLVANIA Plaintiff CIVIL ACTION - LAW V. NO. 06-4482 Civil LAMARCO CONTRACTING, INC. Defendant : JURY TRIAL DEMANDED ORDER day of , 2007, upon consideration of Plaintiff's AND NOW, this t)r P?-" Motion for Rule Absolute, it is hereby ORDERED that the Rule is made Absolute and that Plaintiff Custer Design Group, Inc. for the benefit of Heirloom Cabinetry of Pennsylvania, Inc.'s Motion for Leave to Amend Complaint, filed on December 26, 2007 is GRANTED and Plaintiff shall file its Amended Complaint within ten (10) days,peThe date of thiVOrder. N: i l I-N I- 01-IJ LGOZ Parties to be provided notice of this Order: Thomas J. Nehilla Jennifer Zimmerman Rhoads & Sinon LLP P.O. Box 1146 Harrisburg, PA 17108-1146 Attorneys for Plaintiff LaMarco Contracting, Inc. 130 Hillymede Circle Harrisburg, PA 17111 Defendant Thomas J. Nehilla, Esquire Attorney I.D. No. 67326 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs CUSTER DESIGN GROUP, INC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. And HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiffs V. LAMARCO CONTRACTING, INC. Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION - LAW : NO. 06-4482 Civil JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim 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 YOU 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 Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3199 639235.1 AVISO USTED HA SIDE DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3199 639235.1 Thomas J. Nehilla, Esquire Attorney I.D. No. 67326 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs CUSTER DESIGN GROUP, INC., for IN THE COURT OF COMMON PLEAS the benefit of HEIRLOOM CUMBERLAND COUNTY, CABINETRY OF PENNSYLVANIA, PENNSYLVANIA INC. And CIVIL ACTION - LAW NO. 06-4482 Civil HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiffs JURY TRIAL DEMANDED V. LAMARCO CONTRACTING, INC. Defendant AMENDED COMPLAINT NOW COMES, Custer Design Group, Inc. for the benefit of Heirloom Cabinetry of Pennsylvania, Inc., and Heirloom Cabinetry of Pennsylvania, Inc. by their attorneys, Rhoads & Sinon LLP, and hereby submit the within Complaint against LaMarco Contracting, Inc., and avers as follows: 1. Custer Design Group, Inc. ("Custer") is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania having an address of 2805 Old Post Road, Harrisburg, Pennsylvania 17110. Custer's principal business is serving as a general contractor constructing residential homes. 2. Heirloom Cabinetry of Pennsylvania, Inc. ("Heirloom") is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania having an address of RR 4 Box 390, Nelson Road, Mifflintown, Pennsylvania 17059. Heirloom's principal business is constructing and installing wood cabinetry as well as constructing wood furniture. 3. LaMarco Contracting, Inc. ("LaMarco" or "Defendant"), upon information and belief, is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania and has a registered address of 130 Hillymeade Circle, Harrisburg, PA 17111. LaMarco is an HVAC contractor. 4. Steven Neiman, owner of property located at 3 Springdale Way, Mechanicsburg, Cumberland County, Pennsylvania ("Neiman"), contracted with Custer, as General Contractor, for the construction of a residence on his property located at 3 Springdale Way ("Neiman Residence"). 5. Custer entered into a Supplemental Trade Contractor Agreement on or about October 2003 with Heirloom ("Heirloom Subcontract") for the construction and installation of cherry and pear wood cabinetry and paneling in dining room, family room, office, master bedroom and master bathroom in the Neiman Residence ("Heirloom Cabinetry"). Heirloom also constructed several pieces of wood furniture for the Neiman Residence, including, but not limited to, an entertainment center, a bed, a desk, and a dining room suite ("Heirloom Furniture"). A true and correct copy of the Heirloom Subcontract is attached hereto as Exhibit "A" and incorporated herein by reference. 6. Custer, through purchase orders, subcontracted with LaMarco for the installation of the HVAC system in the Neiman Residence and the purchase orders were subject to Supplemental Trade Contractor Agreements (collectively referred to as 2 "LaMarco Subcontract"). A true and correct copy of the LaMarco Subcontract is attached hereto as Exhibit "B" and incorporated herein by reference. 7. LaMarco installed an HVAC system in the Neiman Residence on or around October 2003, by suspending part of the system above the ceiling in the dining room. 8. In accordance with the LaMarco Subcontract, LaMarco was to perform all work in the Neiman Residence in a good workmanlike manner. See LaMarco Subcontract, ¶ 1. 9. LaMarco owed a general duty to install the HVAC system in the Neiman Residence in a workmanlike manner and in accordance with all industry standards and practices and all applicable building codes. 10. During the initial installation of the HVAC system, LaMarco failed to properly install the HVAC system in the Neiman Residence. The improper installation included, but was not limited to, the failure to install an appropriate overflow condensation pan or drain for the humidifier which was suspended above the dining room ceiling. 11. On or around October 2003, and as a direct result of LaMarco's failure to install the appropriate condensation pan, water dripped and accumulated directly on the ceiling frame above the dining room which caused water marks on the ceiling and water to leak through the ceiling and stream down the sides of the walls onto the dining room floor. 3 12. Additionally, water dripped down the inside of the dining room walls and accumulated under the hardwood floors throughout the house which caused the hardwood floor to buckle and cup and the cabinetry in the family room, the master bedroom and bathroom as well as the dining room table and office desktop to crack. 13. Within a short period of time after the above-mentioned cupping and cracking were first noticed, water started dripping from the dining room ceiling. 14. At that time, the wood flooring subcontractor, Restorations Unlimited, tested the humidity levels throughout the entire house, and specifically where the Heirloom Cabinetry and hardwood flooring were located in the dining room, family room, office, master bedroom and master bathroom. 15. After the water leakage occurred, the humidity levels in the Neiman Residence were, at times, extremely high, and at times, below normal. The humidity levels were at such an abnormal level throughout the house that it damaged the hardwood floors and permanently damaged the Heirloom wood used to construct the Heirloom Cabinetry and the Heirloom Furniture. 16. The humidity levels were abnormal for at least three to four weeks because it took a significant amount of time to remove the excess humidity from the air and the wood flooring after the dining room leaks. 17. At no time did Custer, nor any of its officers, directors, agents or employees, direct LaMarco to alter or maintain the level of moisture in any manner in the Neiman Residence. 4 18. Due to the abnormal humidity levels, the damage to the maple hardwood floor and the Heirloom wood occurred throughout the entire house, not just in the dining room where the water problems occurred. 19. The cabinetry and furniture installed and constructed by Heirloom permanently cracked and suffered water damage as a result of the abnormal humidity levels and the water leakage that occurred due to LaMarco's improper installation of the HVAC system. 20. Due to the damage to the Heirloom Cabinetry and Heirloom Furniture, Heirloom had to completely replace the bathroom, bedroom and office cabinetry at a total cost to Heirloom of $34,558.00. 21. In addition to the wood damage, as a direct result of the water leakage and the abnormal humidity levels, the drywall, which was installed by Custer, cracked in the areas of the house where the Heirloom Cabinetry was located. 22. Custer replaced much of the damaged drywall in the rooms where the Heirloom Cabinetry was located due to significant cracking. Custer also repainted the affected areas, replaced a large portion of the laundry room floor, and replaced the dining room ceiling which were all damaged as a result of the water leaks. 23. LaMarco's insurance company, Penn National Insurance, reimbursed Custer for Custer's costs in replacing and repainting the damaged drywall due to LaMarco's improper installation of the HVAC system. 5 24. The entire heating and air conditioning system, installed by LaMarco, including the humidifier system, is being reengineered and rebuilt by a new HVAC subcontractor because the system never worked properly due to LaMarco's improper installation. 25. In addition, the new HVAC subcontractor installed a pipe to drain the system, which LaMarco failed to install. 26. Heirloom completed the replacement of the family room cabinetry in June 2005. 27. There have not been any problems with cracking in the furniture and cabinetry since it was replaced by Heirloom, after the humidity and water problems were resolved. 28. Heirloom sought reimbursement from LaMarco's insurance company, Penn National Insurance, for the costs of replacing the cabinetry and furniture, however, the insurance company denied payment of the claim, even though it paid Custer's claim which resulted from the same damage based on the fact that it was Penn National's opinion that the wood was defective. A true and correct copy of the Penn National denial letter is attached hereto as Exhibit "C" and incorporated herein by reference. 29. Based upon the fact that there have not been any problems with cracking in the furniture and cabinetry since it was replaced by Heirloom, it now has become evident that the damages Heirloom sustained are a result of LaMarco's failure to exercise reasonable care in installing the HVAC system. 6 COUNT I -- BREACH OF CONTRACT Custer v. Defendant 30. The foregoing paragraphs are incorporated herein by reference as if set forth here at length. 31. Custer and LaMarco had a contract for LaMarco to install the HVAC System in the Neiman Residence. 32. LaMarco owed Custer a duty to install the HVAC system in the Neiman Residence in a workmanlike manner and in accordance with all industry standards and practices and all applicable building codes. 33. LaMarco's failure to properly install the HVAC system in a manner that the system did not leak was a breach of these duties and directly resulted in damages as alleged herein. 34. LaMarco's actions as described herein were wanton, outrageous and reckless, thereby justifying an award of punitive damages and attorneys' fees. COUNT II - NEGLIGENCE Heirloom v. Defendant 35. The foregoing paragraphs are incorporated herein by reference as if set forth here at length. 36. LaMarco owed a duty to construct the Neiman Residence in accordance with all industry standards and practices and all applicable building codes. 37. LaMarco's failure to properly install the HVAC system in a manner that the system did not leak was a breach of these duties and directly resulted in damages to Heirloom as alleged herein. 38. Defendant' actions as described herein were wanton, outrageous, reckless and indifferent to the health, safety and welfare of Plaintiff, thereby justifying an award of punitive damages and attorneys fees. WHEREFORE, Plaintiffs, Custer Design Group, Inc., for the benefit of Heirloom Cabinetry of Pennsylvania, Inc. and Heirloom Cabinetry of Pennsylvania, Inc. respectfully request this Court enter judgment in favor of Plaintiffs and against Defendant LaMarco Contracting, Inc., in the amount of $34,558.00, plus interest, punitive damages, attorneys fees, and all other costs advanced by Plaintiff. Respectfully submitted, DATED: February .-, 2007 RHOADS & SINON LLP By: T mas J. N PA ID. No. 67326 Jennifer Zimmerman PA ID. No. 89459 P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs 8 ct_• CVVO J: iv r.-1 r.l ,1! KnumlJa & ol:Yvp Thaodore Wz.pier, Jr., Pr siclent of Heir'l-mm C.abincrry of Pentisylva.itaa, Lac., d_roses and saes, sul- ject to the penzihies of 8 Pi:. C.S. § 4904 rel<Ytxng ,o unworn fa sificaticzn to aut:n•otities, that he is the P:c?:tde:?t of Heirloom CabiDmy of Per-isylvan.ia. inc., thax he snakes t:;-s verification by its authori y and that the facts set forthh in the Comphdnt P.re true aid cmTe4,t to the test of his.'her k owledge, information and belief. .?_ ... llil,-4 Date %! v„.: Tliradore E. "Wagner, Jr., P:residei ( Heirlod'in Czbinrtry of Permsylva. a,111C. =d I-.1dE,T : TO 9002 FZ 'oaf £60Z9?bLZL 'ON 9NOHd Al 119NIadO W001c1I9H : Exhibit A 581717.1 :,;JJ13/2013 10; 5b tIN UJ;aIW01 telLi..,r r-?xac art Custer Design Group, Inc, SLrFLE'1MNTAL TA.,-CM CON MACTnR AC;';trrV7,NT Tra& Contrarzdr txmxr pmoida a ax=xt O 'reat.? of Tin a ame, wn-,r-g; Cz?tec ?cs? Cyxoim, Enc., car 6# Cartiift=ttr Holder, Thi; Csrtafi vrr must be or,!,{L-,;ri0r to reLmrff If frcz <411 rrWite must be &-7Wd IT- Castor DcAM Rm$4 LU('.', ?SQ Old Pn., t Road ,S':eatc 10U. Harrialzurg, PA 17110. The partic* to this Construction Agr =cot: arc -Custer. Deffig; , Inc., "t3uildcM" and ? j}-t ?f ?N 77Zy dC.a . , "'('race CQntmsctvr." ZA/d . This Agrc(,.m=t s?.a.11 gov=. 4 labor: pexfoxmed =d matetizi f ==shad by Tzadc c.on-,mcror for Windex =dl either party revokes it by d.eli4-a.cnjv; w=rrc:m nnace of such rc7acarion to the other party. If eid= party revokes this ajzeamant, it ai=11 Be nun and void for iu coat:racrs entered into ttaere tfb= T=de Con=c. t aFIes; , 0 Petfotr:z all w0xk ic a w0rJ tntual>ke manner; and To delivcz zmc«teziak which = acw and in jocordaucn vrith the plans atad specifications deli4ered to 'T'rade Contractor, Upon:cc?^sv' notice £rorn'u.ilder that 4r?.de Contractor has pec&=cd i.n< or, imprgpcr, or nnsoutzd labor, or d:1•ve1ed mate-ti.a.ls at variance wiih which is sp,eei , Trade Contractor will, within t erxt- y-four ( 24) acuss, proceed to Fc=ve SUC11 worts Or =Le'iVIS and mike good all other,wort:,)z rms-tezxak damaged thereby. Trade Contractor shAn not subcont stay parr of the,;oxk with0Ut t.hc written concur of Bt; iIdoz, and such ennsent tsharL not re:eaae TZ, a r..oUttractor &= any respozaaibility az li6il3tp if co=ectiott ?witb. the subcontmctw It :s mu=&117 utide.rstood and agreed between Builder and T=ac Contractor tha; Tradc c otzl2-.a;ox is sn mdepeadent contracroz; that tit tan tt=c arc am of Tzadc COatmetor'a rmp?opees in the c loy of Builder. ;for is BuUde±xcspcnsiblc to axy of "race Coacacrox's eazpioyc fox the aymmt of then qe"s; chat Tradc Ccm>zactot alone is reiponsUc fox coxnpliaacc with PI ap;.Iicab1c statutes, ordinances, amd regulations cence=ivZ his employee's Social Seztxutp, ?t'vrk*aar:'a Compensation, and a l safety crandatiora and record keeping .c«1utr iaats undex the OccapaClortIL Safety and T+czith Act of 1970 and am=dmcats ehecetc;, State and Federal ration. and licciiAtig. Trade Connrtacta ehalt maintain, at hii uwn expense, such insurance ac vrM prat'ect him fauns w0.0Vmen'e compensation acts and 87om ncher claina_5 and catu uzcs for persanai injuir , including d=zh, in the r:.ar.imum amount of $500,000.00, 'which may arise from Operations uzzier rK-:4 c:>ntrac.,.. Whether svch oPcrataana be by the Tmdc Ccantmrtot a= ixy any othe.= ,made cortt'ac:ors ox nis tnPloycr by sayonr cli =dy or in&=cti.y cmapkrycd bz c1rher of tbe=. Tsa?3c nrmcrot heltbif meta ur indcm ify and hold ha.mzless Builder ftom ally c!:4 -w, -40 IM TJ I.dcdTT:OT S002 SO 'daS £60Z9?bLTz 'ON 3NOHd J4N1ANISUO WOO7NI3H : WOaJ respect to the matte= oudined in the pu%griph. A copy c)f Trade Contzactor's CestiacaTe of Iasurancc mu.?t be appxovrd iz1 ?xitiztg by Garter Dcaign Group. , inc. at 1=a t tutee (3) davs pxiox tv commencement of work by Trade Contractor. 3. Trade Contractor agrees to pap for 211 tumatc%kL- and alI.Labor sopplied by Tradc Contractor fox the job when dun =d to hold Builder and the owner b=nrAeas from an1M liens u6ing out of labor, materials, or subcontracts farniaked by T.rlde Contractor. Buddet shall }gave the right to require Trade C=t mctor ro pzo--ide rd=%Aes by III Per= supplying labor, mat x66&, or services to Trade Contractor for the job herein described and to withhold final. payment until such releases are supplied. Ttmde Contractor acknowkcdgm that it is = iadcp=a t co.tt mctox and agrees to pay all contzzbutiow soquized by law Qr cvmtx-. i -viiich if unpaid could be zzz encumbrance upon the reel pre>paxrp wkuze the -work is performed. ?. Trade Contzzctot agrees to permit other Trade Cantractozm teasonsable opporrunirv fez storage of materials aad execution of their work and skuW properly coordinatc its work with theirs, If artp part of the work t4 be performed by Trade Contractor depends, for proper executi*z,, on the wozk of other t=a.de contractors or Builder or the owner, Tmde Contractor shall im=adiately report c= ictP, deiec* or on-uzsions runt rmcr such other work untimely or unsuitable for execution of its work, pvocecding with its work without such rapotrt of defecto is and acceptance by Tradc Couaaet:or of The work of oshc % that ptaccdoa;, or j,1 per.£otmed simulta;ncously with, irs work. Should Trade Contractor damage wo* of other trade connectors or Builder, Trade Contactor shall Pap the cost of rcpai3:i.ng such dztmagc and bold Builder and owner harmless, Trade Contractor agrees that be will not hold 8uudct responsible for loss or. &rnage or injury caused by anotb= txadc cottwctm and ftiuthcr ng:ccs to look to said trade couttactox far the rccor=7 from it: oz anp such demure or injury. Txack Contractor sha procure and pay J aecesiaaxy permits required for per zor?-hence hq Trade Contrsctac s>xde~t thin tzccmgt which azc obtainable by T=de Cosurzctor and wiu protect unfinished work and all nutetaala -,-or Trade Contxactot'3 um, or iacidcaral thcrctr, ag22dn3t e:vezp kind o£danuge, including d,.magc by ti:ir. elements, except: damage by t=„ umil compledon of the building. G. Tradc Contractor agrees to place debda in Builder's durapstcr, unless itxstructed otherwise, rubbish and waste matazi cx=tcd by ivi opctatiom as the work progresses, in order to maintain a clean;, safe coalition arid, upon complcd= of it, work, to remove all tools, equipment, materials and WRr tM All ladders are to be loworeu and/or safely stored at the cnd of each day. Any rubbish or waste materials not t:J=ncd up and pzopczl disposed of by Tnde Coti=crox WM result: is a backcharge. Tradc Contractor hereby unconditionally g=ranrees IE his work, labor and matexiala to Builder and the owma or pu_-cLaser four the ptcioci o(Bader`s wn=2zty to the Uu'rAcr of p'3rchasex. revised 1143 ?d WdZT:OT S00E 60 'daS EGOE92PLTL : 'ON SNOHd A1J13NIEbD WOOI?JISH : WOdd :Uf a-If.4 UVJ jv..Jw ri r?.+?va i ?.?. ?.. -. ..-. R. Builder agrees to supcr isc the; vork Sad coordi=tc the. veazk of other suppliers and trade con= czars to enable 'T: adc Conmetor to parfoan its stork timely and efficiamtly, Arid Builder agrees that it evil! make tba par-tents required hereunder p r, omptly ,wheel. due. 9. Buildez agrees to pay promptly T=de Contractor in his performance of his work and no latex than 30 dayt, within eubmiazdan. of any, invoice, cotxditinved upon serif cation by Builder that the work lash been satisfactarilv, perdormcd. If payment is not received vcirlain dzis period and Trade Contra=z deer a:ot sece:xves notification jlzatif ing the drlay in payment, Tmdc Contractor may gate this Agreement upon scsvczt ,7) days writ=n notice of his interxt to do sea. Ti Trade t ootxaetos does eco tc=inutc following said notice, be shall be sanded to receive the rearaonibie rahzc of sit matt izb and labor incorporated in the job to the time of tcratination and the profat TL-Ade Contractor would noat:udly expect to have bats made had the cosxtzact been £LLily =41 propez1v pcrfortacdr 10. If the Trade Contracrox shall become bwAmpt, make assignmenr for the bcnefit of tenable to Q=y out the work or if the Trade creditors, or otherwise become Conn, or, without proper cause, ovc, frotrx the work ibr a period in excess of forty-eight (48) hou=, then the BuUdcr =y, by uc)tice in writing or verbal to the Trade Con==:, te:= :1nare This 43reement if:ictiozx is not is n to cure said default within twenty-four (24) hours aftex Builder's ccanuuni=iion of such zmtsce. If Trade Contractors shat in =v =&=ex unduly daUv or otherwise acglect: to fw sh his responsibilities, without bona fide cause, withiz the tiro 1%creinbc1nre provided, or otherwise bteacll sup pxovUWn of tl:?s ant; Bolder rr=y, by umitten or verbal modcc as hezeinbeffore provided, zcquirc the Trade Contractor ro proceed with the work within twenty-fora (24-) hours after conveyance of such notice or correct any such bsc-ach of this Agreea?ewithia twctty-four (24) 12otu peaod and upon &aje co do So, the Builder gbzL them bAve the z #t to tex mi:natte this Agreement and co employ arty othex T =de Coutractor Go continue: and cojxsplete the said work according to sAi.d pL=s and specifications, oz any alte dons or additions as hereinbe; ov provided, sad shall also !save the ,fight to siurbouze such replacement trade contractor to USe; arxp r=tCYislB ter pz0PmV-7 Of the Trade COntmcLOr upon the ground If the e.4pease to complete the cozatw.t, in. adciirion to any payments made of the Trade; Contractor, harewadec, shall exceeri the origind subeontsact pzice p]Lu costs for s.ny additional work, Trade Coatmcro:r shall, be liable to the BuMez for, auch excess SLUMS. 11. In the event Trade Contractor diacoTm aay in+:onsistrmciee or c=o= in bis wort with the Budder or otbct trade cocttactots in the plans and 4pettificari a, he atalQl, before performing s2id work, promptly bring sttch matters to the attention of the Builder who shall then ghee Trade Contractor writ= Wsttuctio:ns or directions relative to paid iaconeisteney os error. No elaitras for ac.ditioaal compensation Will be considcrod and •rzado Contractor Khali be entitled to no such additional aml=, uuIe:ss he SK'LU have, if at a possible, latought ,he incansistcucy or =Qr to the p1?C?Gr'S attention prior to perrfooT=g any work thereon. 12. ruin .Agreement and cvcL7 conversant and prorision herein shaU bid, apply :o, and run in favor of the pardea, their successors in intamr wtd their legs! rrpresertadves. rewaec a;n3 aJ WJET:0T S00c 60 'tins Z60z9£172-Tz : 'ON 9NOHd A&3NISd0 WOO-NIOH : W083 13. in cousu ng This Agre=emrt the Build= aad Trade Camtrac=r way be rao,6 rhw- one person; that if the context so rcquires, the singuiaz promo= shall. be taken to mean and inchide +c pl=4 the m2rcWinc, the £ctrinim C, and rase =cuter; aad that gemrrail7 all at:ical changes $lar be xrasdo; assumed, asld implied to tns]ce the provisions hamf apply, equally to corporLdon_ and to.inditeduals. Trsdc C:cn=croes Addtmsss, /U U113 Z `l_/2 JE' AA m =VC. RRy ,Qax ??? ?so? RtfQ MP1--Z,11YI6 wA/, 09A -/V5? Business Phone-, `V7) Emcrgcaq PbG?ne: ??-r? z, VS - keg eS44 N ? ? C-7)`)4r 4- ??,oq3 T=de Con=dors r i 1..0 #, ?L3- a9ady51 IncvrporatocP Myer ?uo Prinwd Trade Coztmctor Compsaay Name _ THED,00X46 Z. Wg6-AACK Hinted Name of Tcadc C ontr=x Aeccpted and Approv t &ek? ?O Sipa=e of 'Trade Co-'-- 7-tor Iaa Cowtcx Des*a Group, Inc. 5igna=e of Buildrs Builder's Address: 2806 Old Post load, Suite 200 T. misburg, r-.A 1711 n Business Phone 17 2.32-6027 x?esea CJ03 trd Wdz Z : 0 T SOW 60 ' daS ?:60Z9217L t L : 'ON 3NOHd Al 113N I Sd0 W00121 I SH : WOc%Jd Exhibit B 'Homes, inc. 5 oid Post Road, Suite 200 rrisburg, PA 17110 ORDER DATE: 0212912003 VENDOR: JOB ADDRESS: JOB NUMBER: Lamarco Contracting Inc. Sterling Glen SGO05 130 Hillymede Circle at Rt 114 & Woods Road Harrisburg PA 17111 Mechanicsburg PA 17050 Project Manager Project Manager Phone: Ted Shaffer 648-5634 Page 1 PLEASE SUPPLY THE FOLLOWING : ITEM ITEM DESCRIPTION LENGTHS QUANTITY UNIT UNIT PRICE TOTAL PRICE "** 4? 0 HEATING'*** 0020 HVAC as per quote dated Aug 7, 2002 1.00 Lsum 9,495.00 9,495.00 Roughin - $5,697 Equipment Set - $2,849 Finish - $949 - Provide the Following: 95,0008TU Furnace w.90+ efficiency 5 tons AC w/10 SEER rating, gas piping to WIH, Kitchen Range, Lenai ?riu iL?zs f P Scuttle humidifier, Electrostaic Air Cleaner, programmable T-Stats. Furnace to be installed in the attic area. A seperate WO has been issued to vent the downdraft range Net Order Tax TOTAL ORDER pay ' b?.-Xw ?r?v_ 3t16 a+x f o3 IMPORTANT NOTICE - PLEASE READ *This P.O. is subject to the terms of the Custer Homes "Trade Partner Agreement" I?OkL&I~ILZ- *Payment shall be made on P.O. amount or vendor Invoice, whichever is less. *Return Quality Inspection Report with Invoice. J91- -1) *Do not begin work unless these terms and conditions are acceptable nv, IW* *`**CHI will not honor additional charges NOT pre-authorized in writing by the Project Manager*A*4 *** Authorized Signature: $ o?l ??c ? -N _:_ d _ =rIo3 Custer Homes, Inc. Date DIRECTIONS : z L? a 9,495.00 0.00 9,495.00 4 000.00 31elfCr vv -i -~fl D l ,boo 00 OWE Li, IMPORTANT: PURCHASE ORDER NUMBER MUST APPEAR ON ALL INVOICES ?Jw Lu! 1 D34 1L. V f r LAMqK(J 1 FEA 11Na & Ac 02/02/2000 O_STER H iES It.C CUSTra HOMES, IrrC. SLyFPiMun-rrAt SUScoN VACr AMMEWM Tim parties to this Coustruction Agreemeat are Custer Homes, loc., `BIAder," aw i l??r?t? , •• Subcontractor." This Agreement shall govern all labor perforated fwd material furnishai by Subcontractor for build=- until aithcr party rwokec it by delivpAvig written notice of such revocation to the other party If either party revokes this agreement, it shall be nuE and void for aU contracts entered into thereafter. Subcontractor apves- To perform all work in a worla narMe mariner; and To deliver materials which are new and in accordsoce with the plans and specifications delivered to Subcontractor. Upon receiving notice from guilder that Subcontractor has performed inferior, improper, or unsound labor or delivered matsrisis at vx=we with which is specified. Subcontractor will, whhin tw qmy- faur (24) lours, proceed to remove such work or materials toad make good all other vmrk or materials damaged thereby. Subcontractor shall not subcontract any part of the work without the prior written consent of Budder, and such consent shall not release Subcontractor from any responsibility or Ubdity in connection with the subcontract I It is matuslly understood and agreed between Builder and Subcontractor dw Subcontractor is an independent cor+vuw, that at no time are any of Subcontractor's employees in the employ of Buffder, nor is Builder responsible to any of Subcoutractor's} employees for the payment of their wages; that Subcontractor alooa is responsible for comph=ce with all applicable statutes, orb, and regulations concerning hi: employee's Social Security, Workman's Compensation, and all safety conditions and reo9rd keeping requiraaents corder the Occupational, Satbty and Health Act of 1970 and amendmenas thereto, State and Federal tLudoI6 and licensing. Subcozrtractor shall makuia, at his own expCne, such insurance as Will protect bite from worlanen's compca Ittion acts aM from other claims and damages for personal injury, including death; in the minimum amount of S500,0M.00, which may raise from operation under this contract, which such operations be by the Subcontrutor or by any other subcontnsctars or his employer by anyone directly or in&ectiy employed by either of them Subconautar hereby agrees to indemnify and hold huyWew Builder from any cW= with respect to the nistten outlined in the panWaph. A copy of Subcontractor's Cardficate of Instaacce must be approved is writing by taster Homes, Inc ar less[ three (3) days prior to coumm=swent of work by Subcontractor PAGE 04 PAGE F2 gi tui t 7 7Y ?. u r rl rea rY]it r LAP9ARM HEATING & AC PAGE ail ??'?%8c,' 2?8@ 1'?: ' ?1'..3:.;079 LUSTER HOMES IP1G F43E t13 { fe 3. Subcmtractor agrees to pay for AD Materials and so labor supplied by Subcontractor for the job *ben due and to hold SuDdef and the owner harudest from any Lens arising out oflabor, materials. or subcontracts Rrnished by Subcortracior. BOder shall have the right to require Subcontractor to provide releases by all persons supplying tabor, materials, or services to Subcontractor for the job herein described and to vkhhold final payment urttuil such relasses are supplied. Subcontractor arknowtedges that it is an independent contractor and agrees to pay all contributions required by law or contra& which if unpaid could be an encumbrance upon the real properly where the work is pufortned. 4. Suboomactm agrees to permit other Subegtrtractors reasonable opportunity for storage of anaterials and execution of their work and shill properly coordinate its work with theirs. If any part of the work to be perfarmad by Subcowac for depends, for proper execution, on the work of other suboontracmrs or Sunder or the owner, Subcomractot shall irrutzediately report con'8icm, derfects or orniasions than tender such other work untimely or-unsuitable for swution of its work. Proccediag with its work without such report of defects is and acceptance by Subc tractor of the work of others that precedes, or is performed shm tumusly with, its work. Should SubconvaeWr damage work otother subcontractors or Builder, Subcontractor shall pay the cost of repairing such damage and hold Builder and owner harmless. Subcontractor agrees that he will not hold Budder responsible for loss or damage or injury cooed by another subcontractor and further agrees to look to said subeontnctor for the recovery from it of any such daarage or Wwy. Subcontractor sW procure and pay all necessary permits required for performance by Subeontractor under this agreement which are obtain" by Subcontractor and win protect uafirisbod work and all awWals for Subcontractor's use, or iacide ntal thereto, sga#?t navy kind of damage, including damage by the elements, except damage by foe, until completion of the building. 6. Subcontractor agrees to remove fi-om the site, uWe n instructcd otherwise, rubbish and waste materials created by its operation as the work progresses, in order to maintain a cltan,, safe: condition and, upon eompladon of its work to remove all tools, a gWpmeat, mstcrials and waste. All ladders ass to be lowered and/or safewly stored at the end of each day. Any rubbish or waste materials not cleaned up and properly disposed of by Subcontractor ail result in a backcharge. 7. Subcontractor hereby u wnditiomlly guaraate:es all his work labor sad materials to Builder and the owner or purchaser for the period of Buddeer's warranty to the owner or purchaser. 02/ 02/ 2066 77 ' ',G.t29 Clra TER Hc7hIES I M is 8. Budder agrees to supervise the work and coordinate the work of other supphers and subcontractors to enable Subcontractor to perform zts work basely ad efficiently, and Budder agrees that it will make the payments requited beremder promptly when due. Budder agtces to pay promptly Subcontractor in his performance, of his work and no later than, 30 days within submission of any invoice, conditioned upon verification by Builder that the work has been satisfactorily performed. If payment is not received within this period and Subcontractor does not receive notification justifying the May is payttreat, Subcontractor mazy temiinate this Agretweat upon seven M days written notice ofbis is sm to do so. If Subcontractor does so terminate Following said notice, be be entitled to receive the reasonable valve of all materials and h bor Wcotporated in the job to the time of termination ad the profit Subcontractor would normally expect to have been msda had the contract been fatly urd properly performed. 10. If the Subcaov=or strati become banhuK- make aasigtunent for the benefit of creditors, or otherwis* become unable to cany out the work or if the Subcontractor, without Proper cause, removes from the work €or a period in excess of forty-eight (48) hours, then the Builder may, by notice in v,*is& or verbal to the Subco rector, taminue this Agt'e a aat if action is not taken to cure said default within twenty-four (24) hours after Builder's eammurtiaativzt of such notice. If Subcontractors skald is any mannar unduly delay or othmvise neglect to fnish his responsibilities, vuhh ut bona fide cause, within the time 6aeiabsfore provided, or otherwise breach any provision of this Ate, Builder may, by written or verbal notice as bermsbefore proYW4 require the Subcontractor to proceed with the work wilt twenty-four (24) hours after conveyance of such notice of roared any such breach of thu Agse=wt'withim twarty-tour (24) hour period and upon failure to do so, the Budder Aau then have the ri&t to terminate this AW"m ant and to employ any other Subcontractor to continue and complete the said work according to said plans and speciftcatioas, or any alteratiorw.or additins as hettiistbafore provided, and shd also bave the right to authorize Poch replacement subconanotot w use any materials or property of the Subcontractor upon the ground. If the over= to complete the contract, in addition to any payments made of the Subcontr otter hereunder, shall exceed the original subcontract price plus costs for any additional work. Subcontractor shalt be liable to the Builder .for sucb excess sums. 11. In the even Subcaonwwtor discovers arty inconsistencies or errors in his work with the Bolder or other ubwatractors in the plans Pad specifications, he shall, before pedarmiam said work, promptly bring such matters to the retention of the Builder wbo shall then give Subcontractor written instructions or directions relative to said inconsistency or error. No claims far additional compensation will ba considered mad Subcontractor shall be entitled to no stich additional sums, unless be shall PAGE Da -- v+•r+?w &-/ I lllV w rw r-MMY 01 02f 3 2,'2D00 13:29. ?1?= 0<9 CLS7ER RMS IW- FAGS 05% • have, if at all possr'ble, brought the incoetsinency or error to the Hander's attention prior to performing any vwork thereon, 1'. This Agrcement and mry coevewt and provision herciu shat! bind, apply to, and run is -favor of the parties, their suecesavrs is istwest and their legal - - rreprtscatatives. . 13. In construing this Agreement, the Builder and Subcontractor rosy be more that one parson; that if the context so requires, th! angular proroert shall be taken to rnean and include the plural, the masculine;, the f , ad the natter, and that Senerany all Snaamstical changes shall be mtde, assumed, ad implied to mike the provisions hereof apply equally to corporations sad to individuals, Subcontractor Subeomactor's Federal ID #; Subcomractoes Address- Incorporated*7 Pya Ono Business Phone: SG q -f Emergency PiZOttc: ?!?-'-Zs6 9 ?/ ?a?/ Accepted and approved bog 407 Custer Homes, Inc. -_ 1----OWdct Builder's Address: 13x9 Laurel Point Circle HarL*y PA 17110 _ Bushms Phone: (117 232-6027 0 Custer Homes, Inc. SUPPLE1v1ENTAI. TRADE CONTRACTOR AGREEMENT Trade Contractor mustprmide a current Certificate of Insurance, naming, Custer Homes, Inc., as the Certificate Holder. This Certificate must be on file prior to release of firstpayment. All Invoices must be issued to Custer Homes, Inc., 2805 Old Post Road Suite 200, Harrisburg, PA 17110. The parties to this Construction Agreement are Custer Homes, Inc., "Builder," and LaMarco Heating and Cooling , "Trade Contractor." This Agreement shall govern all labor performed and material famished by Trade Contractor for Builder until either party revokes it by delivering written notice of such revocation to the other party. If either party revokes this agreement, it shall be null and void for all contracts entered into thereafter. 1. Trade Contractor agrees: To perform all work in a workmanlike manner, and To deliver materials which are new and in accordance with the plans and specifications delivered to Trade Contractor. Upon receiving notice from Builder S that Trade Contractor has performed inferior, improper, or unsound labor or delivered materials at variance with which is specified, Trade Contractor will, within twenty-four (24) hours, proceed to remove such work or materials and make good all other work or materials damaged thereby. Trade Contractor shall not subcontract any part of the work without the prior written consent of Builder, and such consent shall not release Trade Contractor from any responsibility or liability in connection with the subcontract 2. It is mutually understood and agreed between Builder and Trade Contractor that Trade Contractor is an independent contractor; that at no time are any of Trade Contractor's employees in the employ of Builder, nor is Builder responsible to any of Trade Contractor's employees for the payment of their wages; that Trade Contractor alone is responsible for compliance with all applicable statutes, ordinances, and regulations concerning his employee's Social Security, Workman's Compensation, and all safety conditions and record keeping requirements under the Occupational, Safety and Health Act of 1970 and amendments thereto, State and Federal taxation, and licensing. Trade Contractor shall maintain, at his own expense, such insurance as will protect him from workmen's compensation acts and from other claims and damages for personal injury, including death, in the minimum amount of $500,000.00, which may arise from operations under this contract, whether such operations be by the Trade Contractor or by any other trade contractors or his employer by anyone directly or indirectly employed by either of them. Trade Contractor hereby agrees to indemnify and hold harmless Builder from any claims with respect to the matters outlined in the paragraph. A copy of Trade Contractor's revised 4/03 Certificate of Insurance must be approved in writing by Custer Homes, Inc. at least three (3) days prior to commencement of work by Trade Contractor. 3. Trade Contractor agrees to pay for all materials and all labor supplied by Trade • Contractor for the job when due and to hold Builder and the owner harmless from any liens arising out of labor, materials, or subcontracts furnished by Trade Contractor. Builder shall have the right to require Trade Contractor to provide releases by all persons supplying labor, materials, or services to Trade Contractor for the job herein described and to withhold final payment until such releases are supplied. Trade Contractor acknowledges that it is an independent contractor and agrees to pay all contributions required by law or contract which if unpaid could be an encumbrance upon the real property where the work is performed. 4. Trade Contractor agrees to permit other Trade Contractors reasonable opportunity for storage of materials and execution of their work and shall properly coordinate its work with theirs. If any part of the work to be performed by Trade Contractor depends; for proper execution, on the work of other trade contractors or Builder or the owner, Trade Contractor shall immediately report conflicts, defects or omissions that render such other work untimely or unsuitable for execution of its work. Proceeding with its work without such report of defects is and acceptance by Trade Contractor of the work of others that precedes, or is performed simultaneously with, its work. Should Trade Contractor damage work of other trade contractors or Builder, Trade Contractor shall pay the cost of repairing such damage and hold Builder and owner harmless. Trade Contractor agrees that he will not hold Builder responsible for loss or damage or injury caused by another trade contractor and . further agrees to look to said trade contractor for the recovery from it of any such damage or injury. 5. Trade Contractor shall procure and pay all necessary permits required for performance by Trade Contractor under this agreement which are obtainable by Trade Contractor and will protect unfinished work and all materials for Trade Contractor's use, or incidental thereto, against every kind of damage, including damage by the elements, except damage by fire, until completion of the building. 6. Trade Contractor agrees to place debris in Builder's dumpster, unless instructed otherwise, rubbish and waste materials created by its operation as the work progresses, in order to maintain a clean, safe condition and, upon completion of its work, to remove all tools, equipment, materials and waste. All ladders are to be lowered and/or safely stored at the end of each day. Any rubbish or waste materials not cleaned up and properly disposed of by Trade Contractor will result in a backcharge. 7. Trade Contractor hereby, unconditionally guarantees all his work, labor and materials to Builder and the owner or purchaser for the period of Builder's warranty to the owner or purchaser. 8. Builder agrees to supervise the work and coordinate the work of other suppliers and trade contractors to enable Trade Contractor to perform its work timely and revised 4/03 a= efficiently, and Builder agrees that it will make the payments required hereunder promptly when due. 9. Builder agrees to pay promptly Trade Contractor in his performance of his work and no later than 30 days within submission of any invoice, conditioned upon verification by Builder that the work has been satisfactorily performed. If payment is not received within this period and Trade Contractor does not receive notification justifying the delay in payment, Trade Contractor may terminate this Agreement upon seven (7) days written notice of his intent to do so. If Trade Contractor does so terminate following said notice, he shall be entitled to receive the reasonable value of all materials and labor incorporated in the job to the time of termination and the profit Trade Contractor would normally expect to have been made had the contract been fully and properly performed. 10. If the Trade Contractor shall become bankrupt, make assignment for the benefit of creditors, or otherwise become unable to carry out the work or if the Trade Contractor, without proper cause, removes from the work for a period in excess of forty-eight (48) hours, then the Builder may, by notice in writing or verbal to the Trade Contractor, terminate this Agreement if action is not taken to cure said default within twenty-four (24) hours after Builder's communication of such notice. If Trade Contractors shall in any manner unduly delay or otherwise neglect to finish his responsibilities, without bona fide cause, within the time hereinbefore provided, or otherwise breach any provision of this Agreement, Builder may, by written or verbal notice as hereinbefore provided, require the Trade Contractor to proceed with the work within twenty-four (24) hours after conveyance of such notice or correct any • such breach of this Agreement within twenty-four (24) hour period and upon failure to do so, the Builder shall then have the right to terminate this Agreement and to employ any other Trade Contractor to continue and complete the said work according to said plans and specifications, or any alterations or additions as hereinbefore provided, and shall also have the right to authorize such replacement trade contractor to use any materials or property of the Trade Contractor upon the ground. If the expense to complete the contract, in addition to any payments made of the Trade Contractor hereunder, shall exceed the original subcontract price plus costs for any additional work, Trade Contractor shall be liable to the Builder for such excess sums. 11. In the event Trade Contractor discovers any inconsistencies or errors in his work with the Builder or other trade contractors in the plans and specifications, he shall, before performing said work, promptly bring such matters-to the attention of the Builder who shall then give Trade Contractor written instructions or directions relative to said inconsistency or error. No claims for additional compensation will be considered and Trade Contractor shall be entitled to no such additional sums, unless he shall have, if at all possible, brought the inconsistency or error to the Builder's attention prior to performing any work thereon. 12. This Agreement and every convenant and provision herein shall bind, apply to, and run in favor of the parties, their successors in interest and their legal representatives. is 13. In construing this Agreement, the Builder and Trade Contractor may be more than one person; that if the context so requires, the singular pronoun shall be taken to mean and include the plural, the masculine, the feminine, and the neuter, and that revised 4/03 generally all grammatical changes shall be made, assumed, and implied to make the provisions hereof apply equ2Ry to corporations and to individuals. Trade Contractor's Address: H•1%M??? G'/l 130 7111 Business Phone: 7 17 y q/ Emergency Phone: 7/7 5 -S-Y- Z Z- 3 Fax: --17 S-j?l - Trade Contractor's Federal ID #: Incorporated. Wes ?no LaMarco Heating and Cooling Printed Trade Contractor Company Name Printed a of rade Contractor Accepted and Approved ' Signature o Trade Contractor Dat Custer Homes, Inc. ,:Z? 4M-;P2 - Signature of Builder Builder's Address: 2805 Old Post Road, Suite 200 Harrisburg, PA 17110 Business Phone: (717) 232-6027 • revised 4103 Terms and Conditions • t E Construction Reauiremeats: The work of all Trade Contractors, their employees, and/or trades is expected to be performed in a good and workmanlike manner. Workmanlike quality is defined as workmanship which meets or betters those criteria indicated in the construction plans, The Company's Scope of Work and defined by industry standards for each bade. inspection Reports: The Trade Contractor and a Company representative shall walk the job; together and complete each section of the inspection report(s). The Trade Contractor must correct any deficiency found during the inspection and the job must be 100-percent complete before payment will be made. The Trade Contractor and a Company representative must sign-off on all sections of the inspection reports(s) attesting that the job is correct and complete. Punch-List: The site superintendent shall inspect the work of each Trade Contractor and will issue a punch-list of all items requiring correction as soon as the Trade Contractor has completed his or her work. The Trade Contractor is expected to immediately complete their punch-list so that he or she does not slow down the overall construction of the home and/or the scheduling of the next trade contractor. Should the Trade Contractor not return to complete his or her punch-list within a reasonable time then the site superintendent may hire someone to complete the punch-list and the Trade Contractor will be back charged for this work The job will not be considered to be complete and no payment shall be made until all punch-list items are completed and approved by the site superintendent Homeowner's Walk-Through List Any items found on the homeowner's walls-through that require correction must be completed immediately upon notification by the site superintendent Time is of the essence for completing corrections on homeowner's walk-throughs. If any Trade Contractor does not return, to correct his or her items listed on the walk-tluuugh list then someone else will be hired to make the corrections and the Trade Contractor will be back charged Safet .. The Trade Contractor acknowledges that he or she has/will complete the Safety Training programs as required by The Company and that he or she has his or her own Safety and Haz-Com program for their employees and/or trade contractors. Trade Contractor agrees to comply with OSHA and/or any other governmental agency's safety rules and regulations. Should any citations, fines, and/or penalties, etc., be incurred by The Company due to the negligence of the Trade Contractor, the Trade Contractor agrees to indemnify The Company for any and all penalties, fines, etc., incurred. Insurance: [Trade Contractor acknowledges that a requirement of working for The Company is for the Trade Contractor to have current Worker's Compensation and General Liability insurance at all times. The Trade Contractor agrees to indemnify The Company and to be responsible for any claims, expenses, or litigation arising from any claim made against The Company due to any injury of the Trade Contractor's employee or trade contractor for any worker's compensation claim. The Trade Contractor also agrees to indemnify The Company and to be responsible for any claims, expenses, or litigation arising from any claim made against The Comfy due to the workmanship, equipment, or materials supplied by the Trade Contractor.] It is your responsibility to notify us immediately if your insurance is canceled for any reason. No Trade Contractor is allowed to work without currant insurance. Should you fail to notify us and we arc notified of your uninsured status by someone other than you, you will be removed from our list of approved Trade Contractors and all money due you for any work will be withheld, in full, until you have current insurance and we have received a new original Certificate of Insurance. Security: The Trade Contractor is responsible for closing and locking all windows and doors before leaving the job site at the end of each day. If there is a problem on the job site due to Trade Contractor not closing and locking all windows and doors the Trade Contractor shall be responsible for said negligence. Cleanliness: The Trade Contractor is responsible for leaving the work area clean and free of debris. if it is necessary for The Company to remove debris left by the Trade Contractor, the Trade Contractor will be assessed a minimum clean-up fee of S 100.00. The site superintendent or other The Company representative will designate an acre for all building debris and trash to be placed. Such area may be a dumpster or a designated trash pile on the lot. Trash, such as lunch or snack trash, is not to be thrown' on the floor of the house or on the jobsite. All such trash must be placed in the trash basket/can/dumpster and property secured so as to net blow away. Port-a johns are provided on all job sites. Any person found using sinks, tubs, commodes that are not hooked up, ductwork, closets, etc., as a toilet will be fired $100.00 and will not be allowed back on any of The Company's jobsites. It is the responsibility of the Trade Contractor to impress on his or her employees and trade contractors that this offensive habit of using any area as a toilet facility will not be tolerated. Warranty: All work is to be guaranteed for one (1) year from date of closing of the house. Certain items must be guaranteed for (2) years. These items are details in lie Company's printed Limited Warranty booklet The Trade Contractor acknowledges that he or she received a copy of The Company's printed Limited Warranty booklet and that he or she agrees to abide by the warranty coverage requirements and time period printed in this document as they pertain to his or her trade. Druz-Free Workplace: The Company is a drug-free workplace. The use of any controlled substances (drugs) or alcohol on any of The Company's jobsite(s) is not permitted Should the Trade Contractor, his or her employees and/or trade contractors be found to be in possession of either drugs or alcohol on the jobsite(s) the Trade Contractor will be requested to leave the jobsite and will not be allowed to return to work until the problem is corrected. Priciag/Change Orden: All work is quoted and priced per home. Payment will be made per the price listed on the purchase order. Any change order will be priced per change order. No additional work will be considered, allowed, or paid other that that priced on the purchase order. Should the Trade Contractor be requested to perform any additional work the Trade Contractor must request a hand purchase order from the site superintendent before additional work is performed. Purchase Order Number. No invoice shall be paid that does not include the purchase order number for the job. The preprinted Request for Payment issued by The Company will be used as the invoice. Trade Contractor shall not begin work before The Company has issued a Purchase Order. Damage and/or Wastefulness of Materials: Damage to materials and installed items such as flooring, windows, cabinetry, fixtures, etc., caused by negligence on the part of the Trade Contractor, his or her employees and/or trade contractors will result in backcbarges for the amount necessary to replace or repair the item. Wastefulness of materials by the Trade Contractor will result in the cost of the material being deducted from payment due the Trade Contractor. Proof of Name and IRS ID Number. The atS requires that we have on file in our office proof that the name and Federal ID number (or Social Security number) that you are working under is the same as is on file with the IRS. We require a copy of a document from the IRS showing your name and m number (Federal ID for businesses or Social Security number for individuals). You also will be asked to complex a Form W-9. Without this documentation the IRS requires that we withhold 20 percent of all money due you, which must then be forwarded to the IRS. The "insured name" on your insurance certificate must match the name on the documents above and the W-9. All checks will be made payable to the name on the above. No insurance certificate will be accepted as valid that reflects a different name from the one on a above-described documents. ,v'w? /- Signature of Trade Contractor Date Exhibit C Harrisburg Claims Service Office P.O. Box 3860 Harrisburg, PA 17105-3880 800.942.9715 Phone 717.230.8200 Phone 800.833.9422 Claims-Mgt Fax 717.221.6062 Claims-Mgt Fax www.PennNationFillnsurance.com May 19, 2005 Rhoads & Sinon Attn: Jennifer Zimmerman P.O. Box 1146 Harrisburg, PA 17108-1146 RE: Our Claim No: 02707761 Our Insured: LaMarco Contracting Date of Loss: 1120/04 Your Client: Heirloom Cabinetry Claimant: Stephen Neiman Dear Ms. Zimmerman: ATIO PENN NATIONAL INSURANCE This letter will acknowledge receipt of your correspondence dated May 17, 2005. As I have previously advised your client directly, we have denied liability on behalf of LaMarco Contracting for the damages to the cabinetry constructed by your client. According to the expert we retained, the humidity level increase from the minor leak which occurred in January was not enough to result in the substantial cracking to all of the laminated pieces of wood. Mr. LaMarco was maintaining the humidity levels in the house according to the requests of Stan Custer of Custer Homes. The levels did not rise throughout the entire dwelling enough to cause the damages alleged. The only humidity levels taken were near the leak in the closet area connecting the dining room and kitchen areas. The hardwood floors immediately next to the closet were initially warped, but returned to'their original condition. The cabinet damage was sustained throughout the entire dwelling, including the bedroom, which was the furthest distance away from the leak. No evidence has been presented which indicates that the humidity levels in the home resulted in the damages as claimed. Therefore, we are maintaining our position of denial. If you take legal action, we simply request a courtesy copy of the complaint. Sincerely, Q"4QW6/- Heather Arnold, AIC, AIM, AIS, SCLA Team Leader CERTIFICATE OF SERVICE I hereby certify that on this day of E-?, W Q YI , 2007, a true and correct copy of the foregoing Amended Complaint was served by means of United States mail, first class, postage prepaid, upon the following: LaMarco Contracting, Inc. 130 Hillymede Circle Harrisburg, PA 17111 171 Ye' ` +Yr THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire I.D. No. 06776 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717) 255-7632 kprice@tthlaw.com CUSTER DESIGN GROUP, INC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. and HEIRLOOM CABINETRY OF PENNSYLVANIA, INC., Plaintiffs Attorney for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 06-4482 Civil V. LAMARCO CONTRACTING, INC., Defendant : JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of THOMAS, THOMAS & HAFER, LLP as counsel on behalf of Defendant LaMarco Contracting, Inc. in the above-captioned matter. All papers may be served upon the undersigned at P.O. Box 999, Harrisburg, PA 17108-0999. THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 I.D. No. 06776 ATTORNEYS FOR DEFENDANT A ?Q CERTIFICATE OF SERVICE AND NOW, this l Day of March, 2007, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendant, hereby certify that I have this day served the within Praecipe for Entry of Appearance by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Thomas J. Nehilla, Esquire Jennifer Zimmerman, Esquire Rhoads & Sinon LLP One South Market Square, 12'' Floor P.O. Box 1146 Harrisburg, PA 17108-1146 THOMAS, THOMAS & HAFER, LLP a, i ? ?-- C. Kent Price, Esquire w J W. Dairen Powell, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 Attorney for Defendant CUSTER DESIGN GROUP, INC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. and HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiffs V. LAMARCO CONTRACTING, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-4482 Civil JURY TRIAL DEMANDED Defendant PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the undersigned as attorney for Defendant LaMarco Contracting, Inc. in the above matter. Dates Respectfully submitted, ,,MA OMA & HAFER, By: \ W. arren uire Attorney D. No. 68953 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: Thomas J. Nehilla, Esquire RHOADS & SINON, LLP One South Market Square, 12th Floor P.O. Box 1146 Attorneys for Plaintiffs THOMAS, THOMAS & ie L. Dated: March 6, 2007 486015.1 ?4 -? ?? - - - - ==? . ?, --- - ? -? -:::1 t_;> - ,_,, ; ?- ?' ???? GJ „ { ? 11 W. Darren Powell, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 Attorney for Defendant CUSTER DESIGN GROUP, INC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. and HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiffs V. LAMARCO CONTRACTING, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-4482 Civil JURY TRIAL DEMANDED Defendant DEFENDANT LAMARCO CONTRACTING, INC.'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' AMENDED COMPLAINT AND NOW comes Defendant LaMarco Contractong, Inc., by and through its attorneys, Thomas, Thomas and Hafer, LLP, and file the following Preliminary Objections to Plaintiff's Amended Complaint, and aver as follows: 1. Plaintiff Custer Design Group, Inc., for the benefit of Heirloom Cabinetry of Pennsylvania, Inc., ( hereinafter "Custer Group") filed an Amended Complaint on or about February 6, 2007. A copy of said Amended Complaint is attached hereto as "Exhibit A." 2. Through the Amended Complaint, Plaintiff Custer Group apparently seeks to recover $34,558.00 that Heirloom Cabinetry of Pennsylvania incurred to replace cabinetry at a house that Custer Group contracted to build. Paragraph 20. 3. The Amended Complaint identifies Heirloom Cabinetry of Pennsylvania, Inc. as the subcontractor to Plaintiff that provided cabinetry for the job. Paragraph 5. 4. The Amended Complaint alleges that Defendant LeMarco was the HVAC subcontractor for Plaintiff and that certain water damage occurred at the property due to Defendant's failure to properly install the HVAC. Paragraphs 8, 11. 5. The Amended Complaint also avers that the humidity levels at the property were maintained at abnormal levels, which caused damage to the cabinetry constructed by Heirloom. (Paragraph 15) 5. Plaintiff contends that its costs associated with the incidents, drywall and painting, were paid (Paragraph 23) but that the Heirloom's costs for replacing the cabinetry were not (Paragraph 28). 6. The Amended Complaint contains two counts against Defendant, Count is brought by Plaintiff Custer Group based upon breach of Contract; and Count II is brought by Heirloom based upon negligence. 7. Plaintiff also seeks recovery of punitive damages and attorney fees. 8. Pennsylvania Rules of Civil Procedure 1028(a)(2) permits the filing of Preliminary Objections to pleadings that fail to conform to law or rule of court. 9. Pennsylvania Rules of Civil Procedure 1028(a)(3) permits the filing of Preliminary Objections to pleadings that lack requisite specificity required by Pennsylvania fact pleading rules. 2 10. Pennsylvania Rules of Civil Procedure 1019 requires that pleadings set forth the material facts upon which the cause of action is based in a concise and summary form. I - DEMURRER 11. Defendant incorporates by reference paragraphs 1-10 as if set forth fully herein. 12. Plaintiff has no standing to bring the action "on behalf of another entity that purportedly suffered damages. 13. Plaintiff Custer avers that its damages have been paid. 14. Plaintiff Custer Design Group, Inc. has failed to set forth a valid claim against Defendant for breach of Contract. 15. Based upon the Amended Complaint, the subcontracts at issue were entered into with Custer Homes, Inc., a separate entity. 16. Plaintiff Custer Group has failed to set forth any contract between itself and Defendant. 17. Count II, based upon negligence, is barred by the statute of limitations. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Preliminary Objections and dismiss the Amended Complaint. II - MOTION TO STRIKE 18. Defendant incorporates by reference paragraphs 1-17 as if set forth fully herein. 3 I 19. Paragraph 34 in Count I, asserts that Defendant's " actions as described herein were wanton, outrageous and reckless, thereby justifying an award of punitive damages and attorney's fees." 20. This Count seeks recovery for breach of Contract. Plaintiff can not recover such damages and the Amended Complaint is devoid of any factual basis for such claims. 21. Paragraph 34 should be stricken. 22. Paragraph 9 alleges Defendant had a "general duty" to install the HVAC system in a workmanlike manner and in accordance with all industry standards and practices and all applicable building codes. 23. Likewise, Paragraph 36 essentially repeats these allegations, again referring to " all industry standards and practices and all applicable building codes. 24. Plaintiff fails to identify what, or which, industry standards, practices or building codes they are referring. 25. Paragraph 38 asserts that Defendant's " actions as described herein were wanton, outrageous and reckless, thereby justifying an award of punitive damages and attorney's fees." 26. Similarly, claims for these amounts are again made in the ad damnum clause of Count II. 27. Plaintiff is not entitled to such damages. 28. Pa.R.C.P. 1028(a)(2) states that a party may file a preliminary objection on the grounds that a pleading includes scandalous or impertinent matter. 4 29. "Impertinence in a pleading is the averment of a fact or facts which are irrelevant to the material issues and which, whether proven or not, or whether admitted or denied, can have no influence in leading to the result of judicial inquiry." Trudnak v. Lille y, 44 Pa. D.&C.3d 493, 495 (Union Co. 1986)(2iting Lyme v. Olewine, 3 Pa. D.&C.2d 112, 114 (Dauphin Co. 1955). 30. Paragraph 10 alleges that the improper installation " included, but was not limited to " ..... Inclusion of such clauses of unlimited scope is impermissible and in violation Pennsylvania fact pleading requirements. 31. Plaintiff reference to insurance should be stricken, including those references in Paragraphs 23 and 28 and Exhibit "C". WHEREFORE Defendants respectfully request this Honorable Court sustain their Preliminary Objections, and strike the above cited paragraphs. b Dated: March 6, 2007 By: ell, Esquire v I.D. Number: 68953 Thomas, Thomas and Hafer, LLP 305 North Front Street, P.O. Box 999 Harrisburg, PA 17101 (717) 237-7154 Attorneys for Defendants 5 L *? , I ? pr /1/.L5/.b?jSU G/ GCS/ GUU I I : JY : 11 t11.1 t1P1 YtivE. Ui va.J 1-4-11111 1\a6LV11Li.L 1110. 0210812007 12:54 PM B27AC 63090 Thomas). Nehilla, Esquire Anorney I.D. No. 67326 Jennifer Zimmerman,Esquire Attomey I.D. No. 99459 RHOADS & SINON LLP one South Market Squan,12th Floor P.O. Bore 1146 Harrisburg, PA 17109-t 146 (717) 233-5731 Anorneyrjor Plaintiffs CUSTER DESIGN GROUP, INC., for IN THE COURT OF COMMON PLEAS the benefit of HEIRLOOM CUMBERLAND COUNTY, CABINETRY OF PENNSYLVANIA, PENNSYLVANIA INC. And HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiffs V. LAMARCO CONTRACTING, INC. Defendant CIVIL ACTION - LAW NO. 06-4482 Civil o i C= -n I 111 r , M JURY TRIAL DEMANDED , Cr% NOTICE YOU HAVE BEEN SUED 1N COURT. If you wish to defend against the claim 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 YOU 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 Cour- Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3199 639235.1 /1/.lb/.bSbU L/LtS/LUU/ /:54:ll AM AM YAUt //U.3Z) 02/08/2007 12:54 PM B27AC 63090 AVISO eefill Ivat iolla l 1115. USTED HA SIDE DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se prescntan mas adelante en las siguientes paginas, dcbe tomar accion dentro de los proximos veinte (20) dins despues de la notificacion de esta Demanda y Aviso radicando personalmente o por-medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones. a, las dernandas presentadas aqui en contra suya. Se le adviertc de que si usted falla de tomar accion como se describe anteriormente; el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada cn la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A UNO, LLAME 0 VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3199 639135.1 !1 /. LOl.b?OU L/LO/GVU/ /:JY: 11 HL•1 HPl YHV L' U/VJJ YC.LLLL 1V1M#.1V1161 1110. 02/0812007 12:55 PM B27AC 63090 Thomas J. Nehilla, Esquire Atmrncy 1.D. No. 67326 lennifer Zimmerman, Esquire Attorney W. No. 89459 RHOADS & SNON LLP One South Markel Square, 121h Floor P.O. Box 1146 Harrisburg, PA 17166-1146 (717) 233-5731 Attorneys for P11IM& js CUSTER DESIGN GROUP, I'i iC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. And HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,' PENNSYLVANIA CIVIL ACTION - LAW NO. 06-4482 Civil JURY TRIAL DEMANDED V. LAMARCO CONTRACTING, INC. Defendant AMENDED COMPLAINT NOW COMES, Custer Design Group, Inc. for the benefit of Heirloom Cabinetry of Pennsylvania, Inc., and Heirloom Cabinetry of Pennsylvania, Inc. by their attorneys, Rhoads & Sinon LLP, and hereby submit the within Complaint against LaMarco Contracting, Inc., and avers as follows: 1. Custcr Design Group, Inc. ("Custer") is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania having an address of 2805 Old Post Road, Harrisburg, Pennsylvania 17110. Custer's principal business is serving as a general contractor constructing residential homes. 2. Heirloom Cabinetry of Pennsylvania, Inc. ("Heirloom") is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania 717.257.6950 2/28/2007 7:54:11 AM AM PAUh Hi03S venn lvatlonal ins. 0210812007 12:55 PM B27AC 63090 having an address of RR 4 Box 390, Nelson Road, Mifflintown, Pennsylvania 17059. Heirloom's principal business is constructing and installing wood cabinetry as well as constructing wood furniture. 3. LaMareo Contracting, Inc. ("LaMarco" or "Defendant"), upon information and belief, is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania and has a registered address of 130 Hillyrneade Circle, Harrisburg, PA 17111. LaMarco is-an HVAC contractor. 4. Steven Neiman, owner of property located at 3 Springdale Way, Mechanicsburg, Cumberland County, Pennsylvania ("Neiman"), contracted with Custer, as General Contractor, for the construction of a residence on his property located at 3 Springdale Way (`Nieiman Residence'). 5. Custer entered into a Supplemental Trade Contractor Agreement on or about October 2003 with Heirloom ("Heirloom Subcontract") for the construction and installation of cherry and pear wood cabinetry and paneling in dining room, family room, office, toaster bedroom and master bathroom in the Neiman Residence ("Heirloom Cabinetry"). Heirloom also constructed several pieces of wood furniture for the Neiman Residence, including, but not limited to, an entertainment center, a bed, a desk, and a dining room suite ("Heirloom Furniture"). A true and correct copy of the Heirloom Subcontract is attached hereto as Exhibit "A" and incorporated herein by reference. 6. Custer, through purchase orders, subcontracted with Lawlarco for the installation of the HVAC system in the Neiman Residence and the purchase orders were subject to Supplemental Trade Contractor Agreements (collectively referred to as 2 717.257.b9bU Z/Zt$/ZUU/ t:54:it AM AM PAUL IU/U3Z) Tenn P11LIUnai inn. 02/0812007 12:55 PM B27AC 63090 "LaMareo Subcontract"). A true and correct copy of the LaMarco Subcontract is attached hereto as Exhibit "B" and incorporated herein by reference. 7. LaMarco installed an HVAC system in the Neiman Residence on or around October 2003, by suspending part of the system above the ceiling in the dining room. 8. In accordance with the LaMarco Subcontract, LaMarco was to perform all work in the Neiman Residence in a good workmanlike manner. See LaMarco Subcontract, ¶ 1. 9. Lal4iarco owed a general duty to install the HVAC system in the Neiman Residence in a workmanlike manner and in accordance with all industry standards and practices and all applicable building codes. 10. During the initial installation of the HVAC system, LaMarco failed to properly install the HVAC system in the Neiman Residence. The improper installation included, but was not limited to, the failure to install an appropriate overflow condensation pan or drain for the humidifier which was suspended above the dining room ceiling. 11, On or around October 2003, and as a direct result of LaMarco's failure to install the appropriate condensation pan, water dripped and accumulated directly on the ceiling frame above the dining room which caused water marks on the ceiling and water to leak through the ceiling and stream down the sides of the walls onto the dining room floor. 3 '11'1. 2b'/. b9t3U L/ZU/'LUU / /:!34:11 AM AM YAUt 11/UJZ) Munn ivatlona.L ins. 0210812007 12:55 PM B27AC 63090 12. Additionally, water dripped down the inside of the dining room walls and accumulated under the hardwood floors throughout the house which caused the hardwood floor to buckle and cup and the cabinetry in the family room, the master bedroom and bathroom as well as the dining room table and office desktop to crack- 13. Within a short period of time after the above-mentioned cupping and cracking were first noticed, water started dripping from the dining room ceiling- 14. At that time, the wood flooring subcontractor, Restorations Unlimited, tested the humidity levels throughout the entire house, and specifically where the Heirloom Cabinetry' and hardwood flooring were located in the dining room, family room, office, master bedroom and master bathroom. 15. After the water leakage occurred, the humidity levels in the Neiman Residence were, at times, extremely high, and at times, below normal. The humidity levels were at such an abnormal level throughout the house that it damaged the hardwood floors and permanently damaged the Heirloom wood used to construct the Heirloom Cabinetry and the Heirloom Furniture. 16. The humidity levels were abnormal for at least three to four weeks because it took a significant amount of time to remove the excess humidity from the air and the wood flooring after the dining room leaks. 17, At no time did Custer, nor any of its officers, directors, agents or employees, direct LaMarco to alter or maintain the level of moisture in any manner in the Neiman Residence. 4 717.257.6950 Z/ZU/ZUU"/ /:54:11 AM AM PAUL 1Z/V135 Penn Narionai iris. 0210812007 12:55 PM B27AC 63090 18. Due to the abnormal humidity levels, the damage to the maple hardwood floor and the Heirloom wood occurred throughout the entire house, not just in the dining room where the water problems occurred. 19. The cabinetry and furniture installed and constructed by Heirloom permanently cracked and suffered water damage as a result of the abnormal humidity levels and the water leakage that occurred due to LaMarco's improper installation of the HVAC system. 20. Due to the damage to the Heirloom Cabinetry and Heirloom Furniture, Heirloom had to completely replace the bathroom, bedroom and office cabinetry at a total cost to Heirloom of $34,558.00. 21. In addition to the wood damage, as a direct result of the water leakage and the abnormal humidity levels, the drywall, which was installed by Custer, cracked in the areas of the house where the Heirloom Cabinetry was located. 22. Custer replaced much of the damaged drywall in the rooms where the Heirloom Cabinetry was located due to significant cracking. Custer also repainted the affected areas, replaced a large portion of the laundry room floor, and replaced the dining room ceiling which were all damaged as a result of the water leaks. 23. LaVi arco's insurance company, Penn National Insurance, reimbursed Custer for Custer's costs in replacing and repainting the damaged drywalldue to - LaMarco's improper installation of the HVAC system. 5 717.257,6950 Z/Lt3/'LUU'/ /:4:11 AM AI`9 YHlrr. 101 UJJ rcaui ira?ivtia.L aaia, 02/08/2007 12:55 PM B27AC 63090 24. The entire heating and air conditioning system, installed by LaMarco, including the humidifier system, is being recngineered and rebuilt by a new HVAC ' subcontractor because the system never worked properly due to L.aMarco's improper installation. 25. In addition, the new HVAC subcontractor installed a pipe to drain the system, which LaMarco failed to install. 26. Heirloom completed the replacement of the family room cabinetry in June 2005. 27. There have not been any problems with cracking in the f uniturc and cabinetry since it was replaced by Heirloom, after the humidity and water problems were resolved. 28. Heirloom sought reimbursement from LaMarco's insurance company, Penn National Insurance, for the costs of replacing the cabinetry and furniture, however, the insurance company denied payment of the claim, even though it paid Custer's claim which resulted from the same damage based on the fact that it was Penn National's opinion that the wood was defective. A true and correct copy of the Penn National denial letter is attached hereto as Exhibit "C" and incorporated herein by reference. 29. Based upon the fact that there have not been any problems with cracking in the f imiture and cabinetry since it was replaced by Heirloom, it now has become evident that the damages Heirloom sustained are a result of LaMarco's failure to exercise reasonable care in installing the HVAC system. 6 717. 2b'/. 63!aU L/ Lt3/ LUU / / :'4 : 11 PXI AM YHu L. -L -tf U JJ l"eAltt lta 1.1Uela.l ASIO. 02/08/2007 12:55 PM B27AC 63090 COUNT I - BREACH OF CONTRACT Custer v. Defendant 30. The foregoing paragraphs are incorporated herein by reference as if set forth here at length. 31. Custer and LaMareo had a contract for LaMarco to install the HVAC System in the Neiman Residence. 32. LaMarco owed Custcr a duty to install the HVAC system in the Neiman Residence in a workmanlike manner and in accordance with all industry standards and practices and all applicable building codes. 33. LaMareo's failure to properly install the HVAC system in a manner that the system did not leak was a breach of these duties and directly resulted in damages as alleged herein. 34. LaVlarco's actions as described herein were wanton, outrageous and reckless, thereby justifying an award of punitive damages and attorneys' fees. COUNT If - NEGLIGENCE Heirloom v, Defendant 35. The foregoing paragraphs are incorporated herein by reference as if set forth here at length. 36. LaMarco owed a duty to construct the Neiman Residence in accordance with all industry standards and practices and all applicable building codes. " 7 717.257.6950 1/ Zb/ ZUU / t :0q:11 AM AM PAUL 1Z)/ UJD 02108/2007 12:55 PM B27AC 63090 YC1111 19d 1.1 Vlldl l lln . 37. LaMarco's failure to properly install the HVAC system in a manner that the system did not leak was a breach of these duties and directly resulted in damages to Heirloom as alleged herein. 38. Defendant' actions as described herein were wanton, outrageous, reckless and indifferent to the health, safety and welfare of Plaintiff, thereby justifying an award of punitive damages and attorneys fees. WHEREFORE, Plaintiffs, Custer Design Group, Inc., for the benefit of Heirloom Cabinetry of Pennsylvania, Inc. and Heirloom Cabinetry of Pennsylvania, Inc. respectfully request this Court enter judgment in favor of Plaintiffs and against Defendant L&Marco Contracting, Inc., in the amount of 534,558.00, plus interest, punitive damages, attorneys fees, and all other costs advanced by Plaintiff. DATED: February 5-,2007 Respectfully submitted, RHOADS & S1NON LLP By: 1'k-? mas J. N PA ID. No. 6 6 Jennifer Zimmerman PA ID. No. 89459 P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs 8 717.257.6950 2/28/2007 /:54:11 AM AM PAUL lb/u,s? YeIttt tva> 1?ttat ttt5. 02/08/2007 12:55 PM B27AC 63090 :. cr?o .a. a.? rte :?:v rcv? tttUALJ-4 U2:N1, L'vut ERMCA'r71:i,`: 1haodore Wa.7mm Jr., Pr-side_Zt of HeIIICOM C.ibinerry of Peansrlvanu a, L.c., ccros.:s ud says. Sul,ject to the penahas of Pa. C.S. 4 440' relafm to unworn ia' ification to auinorities. than he in the Nnsiden: of HeWooan Cabinetry of Per_ yjvzaia. inc., that he rmak_? tiffs verMcat on by iti authori and fhAt the fbcts set forth in the Complaint tue true sild cor^'e:t to the tintDf his.1='=cwic4e, Informatioa and belief. Date =ion E. Wag^e.•, Jr., P7eside? Hcirloo' n Czl,-inrtty of Pe +=W.v k Itic. , c,j td.?5t:t0 Tow zz '3QQ £E029i_bLiL 'ON 3NOHd A813NIatiO WOO?I3i I1]jj 717.257.6950 Z/Zb/GUU/ 1:54:ll AM AM !'AUM 1ffv13J rctttt trat,tviiai 111a. 02/0812007 12:55 PM B27AC 63090 a Exhibit A 331111.1 Ilr.[5/.bybU Z/ZU/ZUU/ /:54:11 AM Airy YAur- 10/Vau 02108/2007 12:55 PM B27AC 63090 :3; 5b I1 I':l:b' "'y Wa I ter w,,x r Custer Design Group, Inc. SLiF*?.3?.YIALTd.?AC CCtATl ACTOR AGAC,Tt1iT Trad• Cantramr wmit prfl:r.'de a cur; ex: Oft# t,? v7nrla aua, Plorwi ; Costa Desk Gtravn. Loc., ar tit Conijicaw 14#A !r 73?- Cernfuvr? mwt be or .,mP..-;r.or /A n1.! are If fi rs ,P9qtM*Af4 R1: Iruaieat mr.: t ore i:Jaed to Custer Ders?gg?ipov>3 tar:., 2St7: O!? Pa: t Rc?d a'.ix var"rawt p, Aso 17 r 10. Tnc parses to ;lea Coraruction Aptemmt ue Ctr s Go= Inc., "Bwlde;." lad _ (`.?/re ra "Txaca (:oatactor'• This Agscc,-n= petal! gcrr,ta all kbdr pesfo=ed xnd m2tert2t furnished by Tsadr. Con-mscror for DwIder uarz either path revokes it b7 dAisecacu wcic= andce of such rcne=rion to the other pan7. If either party tecokes &is :geem=r, it ar=l;' it nun and raid dot all cot=as eatrred into t.4eunft= ,rtxk C===r asm a. Tn perfcmm All -oxk 3c a vorl=xalik@ ==zw. tdd To de iver =mziah which as claw and in socaadance with the plans and specifications dcUru--ed to Trade Coaetaetor, Upon rec49iag notice &" Euildet that Trade Conrsnccor has pccfeatscd iafesior, ialsoper., or ratsocttd labor or deLveted atam ais at Tuiaaec v4t4 whicl., is spmeified, Tmde Contactor w aL witliu menri-fin= r24) hags, prvcaed to remove sucii work cm entterials snd au20 good 4 otbei votk or mauriak damaged thetebp. Tlmas Cvnttaetnr shA aoc aubC01== say past of the tivoric uithouttht prior Written cotseat of Builder, sod nude coweet ,than not entice TtL3e & dMactm ?m an7 tesponaiailit7 = iiabistr it comectiotl v itk, the subooau= It is m--t=Cy un4ar3tood :ad awed b4meen Rwidet And Trade Coat acto: thac rmde C:onczscros is u:sadspendeac contractor, thae to no exec ate anT of Ttadc Coatraetor'3 ca3p10pees in the cruplny of B%Aldr:r. toe if Builder tcspcasihie to arsy of Trade Cm=Rc or's cmplo7cat fort rii.e pap==t of dteit urges; the: Trade Gmtractot elate is scsponsrble fox compliance with all aa.licsble statutes, mdinances, and rcgvlatitms concerning bas employee's Soc:W Sqect ty, Tcvtk-rar. i Co=peasarxn, tad all aafctr eoaditioea and record keeping =jUZ=crlt: undct the Oeajpaconsl, SA&tr and Fehr: Act of 1970 tad amatdmcur.3 tbccty, State aad Federal tmcttion. and 4cataing. Tattle Co'stractar shall maiot iJA at La vw= eVease, suet, insurance a: watt protect him from wvtkr='s campem tioc ace: and 5r,= i3rhm Ja,ims mci camago io: persona; injury, including death, in the mi:.issrum arco:aat of ; 00,000.00, albeit m2y arise from operatlona under dse mt-icy V4-mer suca opecataaas be by rtscTrLdc Contmctor_or by wj c?&tr made ccmc:2c.ors-ozhiss - player ST aarac c&cr .+v of iaaidy ?krycd bs richer of d)rm. Ttsdc r?ttactor 6=by a,Trevt w indeaacjfF and hold iii Jvts Balder from any ci4-a.4 T..:a u0.1 YGllll l\0. 41 Vila A. 111.7 , retie uc Td Wc4T ::@T S00Z 60 'd;R5 260Z9ZV4TL ; 'ON S?CHcd A&RgIEto woo-kiI3H : w7cu i1/.G5/.bSbO 'L/ZU/GUU/ /:5q:11 AM AM VAUt:. l?jlu.3a Fenn tYLziunai lri5. 0210812007 12:55 PM B27AC 63090 wit,b. respect to die s rmn outlined in the puagrapl-u A c, pr of T.t*de Coutactoz's Card1cact oi" Lzsu: naee masse be sppxored it Uxiting I;), Cwta Desiga Group, Ise. at fewt three [;) daps psivz to cotnmameemtct 0.° wcze by Trade COn=-- n. 31 Trade ConttaCtt:r aguca to pay rot 211 matcd aL• and all.txboz supplied by Tide Ccnc:zctmr fat the job wkea duc and to hold BuildC and the owncz huz?less from am? lien arising out of 12bor, mataials, oz subconeact; fiw-Li led by Trade Co.trueot, Butldet shsIl have the tight to zrTairc Tradc Contractor to p=ride rdmses bq all pe-som supplying labor, ma=cL* s, or services to Tmde Contactot far the job hcrcia desersbed and to withbold fatal paganeat until such telewa 2st supplied. Trade Contu=r WJ=c-wkdges t'2at it is an indepwdertt cootcactor lad Agrees to pry 21 conuzbutiors msq*cd by law oc cossxact w1aich if unpaid could be 2a encumb=mce upon the Mal pmpe:ty whew tha work is perfarmed. 4. Tide Con=ctoc agrees to permit other Trade Cantzictom reasonable oppotrxm for sao=2gc of materials and L%acudna of thcz wo:k and shall pzaper17 coordinate ins ark witli t.hdrs, If arry part of the work to be perfoaacd by Tradc Contactor dapez:ds, for proper emecatioc. ot!, the work of other tude contraccora os BuiIde; or the awns, Trade Contucto: chap irmaedisaely =port eonflieti, deieets or cw%i a31'OW that rtmda such otha work unti=dy of unsuitable fer execution of ite vrozit, Proceeding with hs work without such sport of dafecto is emd aceepmance by Tradc Caatsnetor of rue work ofonccm that p-eesdee, or, is perfoea ed sizaulmaeousl7 cvid-, its wash. Sbould Trade Contmcwt dau,agc week of other trade coc=ctozs or Budd; lode Conca=r shall pay the coat of aepairing such daasage and bold Builder sad owner flawless, Trade Corttscwc 4&= that he will mot hold Budd-, respocaNe for loss or damage or injury cawed by another tzsde cot?ctut Rid &ULt~ ag:=ce to look to said trsde contactor : err slam :cco.cry from' it of nary such dl=F or iaj'uy 5. Track- C=tractor shall Procure =d pay aD necewazy permit =crsircd for pesoeasace by Tzadc COatriCtQt :mcict thin agresm=t which arc obtainablc br T.=& Concae;or and wiu p=vtcet un5n6hed work sad ail matatals for Trade Contractor's use, o_ inddeat d thacto, against rect7 ldtd of d%=Rgt, nicluding d:..ctagc by the e'.ea o, etcapt daaaagc by t»z-_, until ccmpiet on of ;he buiUng. 6. Tradc Contractor spa to glace dcb6 is 13v17daes durrpstez, unless instructed athavix rubbish =1 waste materiah created by its operation a the wont progresses, = otdax to mvittnin a cream s2fc condition and, t pon como3cnon of its worn, to rctno rc in [Dolt, cgWpmoat, cmated' 1 G =d mesa tE. Al laddcta ue to be lowcced and/or safely stored at the end of each day. An7 rubbish = trwc =cc&b no: cleaned up utd properly disposed of by Tade Coormcmr miIl result la a ba ckrhscge. *rradr Comsactor hereby uacm ditionally f,,ncwirees all his work. saber tied tstate&k to Hander and dsc owner oc pasha:e_ fns the period of3v!dez's arutatxts to the oaT er of p _zchasrs - - -- - _, _ _ Mead 4.01 :.a t.u-r. 'at cata? ?A daS csee%vLiL ; 'ON 3NCFiJ A813NIH"d7 W00'2iI3H WOt?.i 117, Z57 . FiJSU w-..1-4. -V•rw Z/Zb/ ZUU / /:n4:11 AM AM PAUL GU/ UJD 0210812007 92:55 PM B27AC 63090 3. Ba- dcx agracm to suecreie c t:he xoek aad eoordinatc tho work of odic: suppllea ane =dc enntsacton to amble Trade Contractor to pes:oaa Its mocktiely and eifi icmdy, and Binder agrees that it will make the pepntents requited hereunder pt-Mpdy mEusa tics. 9. Budder ,Fees to pap promptly Trade Goa=cwr In his perfoonaaec of his work and no later than 30"within enbtaission. of ally invoice, coaditiooed upon va+£tcaalon by Amide: that the wort has been sat7sfacS=17 perfoonvi If psymcat is not received wi.rsia tie period and Tc+de Contraeaz d,-ies not receire nod :cation justifying the delay in payro=4 Tadua Coatmetos racy temritate this Ag_•eernent upon seven M day. w=it= notice of hie iatamt to do so. ii Trade Gornto; of don 0o terminate ioacrwiq said notice, he shall be =16dcd to receive Lc teaaotsable raluc of sA materials and labor incorporated is dLc job to the time of cc=a aat ca wad the profit Trade Contmecor would no=uny expect to lnve been made bad the contract ben filly wad properly petfoaatd. to. If the Trade Contr. =z shall become bsalaupt, make assig mcm for the beacfit of creditors, or otherwise be== Ln A61e ro catty out the Work or if tt a Trade Conc:uzor, without prcpa caws, = ave. crna +e work for i period in excess of forty-sight (48) box=, then the But& may, by anise in -riling or verbal to efie Trtde Contsz=f, tc-=inatts this imcc eat if =don u not taken w cute said default witbz n twtnty-four (24) hout s after Buldees ccu=vricaticn of such notice. LE Trade Concaetats shall is ury rztacner unduly dray or odseswise aegicee to finish Iris rwponsibilities, without bona tide came, witbL the -I=c kercin doze provided, or od=wise bc=ch any provisi= of this Ag==ent, Bm:der racy, by wriiten or %retbai ucace -as hesekbefore %;=vidcd, requite the Trade Contmcmc to pmeesa with the work within twc.r-fc= (2) htnua afse: cor veyaace o?. such notice or correct rag such breach of this Agrecmcat within tweaty-four (:4) hour period and a pan 61, ue to do so, the Bulldcr .Hall thco ban the right ur tc=in rte r)Lis Agreement and to c:atploy arty ocher T.esde Coatnccor to eoa=ue and complete the said work accozding to said piers and specifications, e: any olt;tations or addidom as herciabefore provided, and shall also love the right co iurboti: a such -Oplace reeat trade coou=tax to nsa my =ateria'e or nvopati-7 of the Trade Contractor upon the ground. If du eeoeme to complete the coatsswt, is adcliton m any payments made of the Tradt: Contractor hare=der, shall were i the original subcontract price plus costs for my ar3didoad arotlc, Trade Coat:aeeox anal he EtNe to the Builder fox surh e..%=S Sums. 11. 3a the evc:ic Trade Contsaetoz c6corm ttnj is consistrueies or r=ocs in bits work with the builder or other trade contractors si tore plans and SPIC66=6CM3. be 3L%1 before paforsaiAg ssid words, protapdp bung such mau= to the ancticti of the Sunder who ohall then rive Trade Contssetor written instrietions or directions ielstive to cud iaeoaaistreaey or ea r. No claims for ad4tioaa] eorspensldon call! be cockdand and Tack Contractor shall be eawded to no such additional ,urns, usleas be shaII have, if at sll possiblc, btoQght the inccxuittc=.y or Prot to the BcAde:'s attention prior to pe ibmair-g say work thtr:oon• i Cvnri nitclonai. ills. t Z T'ais Agreement zed every conve=x anus proe?sion herein shall bind. ,poly ;o, and run in favor of the pasties, their successors in imxzest-and- rotor legal represm atives._ -- ra.gce t.m caa;x ra dx 2682 M TZ : 'ON 3CH8 AZ!13N I SdO WOOTd 13H : r 08 i /.1 / , L?D / . bJSU L/Lt3/ZUU/ /:nq:ll AM AM YAUt:. G1/U.30 02/08/2007 12:55 PM B27AC_63090 13. In constrtuag This Agreecueatr the Builder atul Tzade Gmtt%=r cjr be rno:e shsr. one pars= that if the eoatc= so xclui:m, the tiagulaz p:onotim 9h%2 be taken to memm and include the plvs4 tl c awealiaq &a fctrint t, =d. ehe =tC; and char SCAMU7 aIl gM?"-Gtical Qh%*Se8 8644 be made, uiumsd arsd implied to make toe pmvssions heeof apply cqVZT x co:poaaons and to itldividusI& Tcdc Can==es Ad mm-. Ate- Lq ? KF s?Y rj,rP,4: =c RR?/ ?4?x ?n n?se?r Ra?il?x???ra w/v, ?,? ? 7asy Business Pbon?:?`i/7) ?,3G • ?d9/ irac:$eaey Phone: (?!?) le?B^ aDyS ??,,,,,?Nf..l(if?L, raaC???i3?-aD_ Q3 Tx1de Con=ctmea Fademl LO : 12- a,71a9451 Ineorpontadl M?A Ono HEiR?o?B//VET?.Y OF P?l? DvC. Printed Tade Coaltsnor Comoaav Name t'1:ilII MLL1UIIdI 1115 _ THED?MC E. kV467VM Paated N me of Trade Cori caaas Accepted zad Appm _ /O ?, 4a?-? ? S g?mte of Tads Co for I;a Crlrtct Dcsiga Gzoup, Ir.c. Sig u=e of Builder Bu18er's Address: 2805 Old Po,r 11;7d, Soi:c 2.00 RazraAuzZ PA 17110 3usiaco Noar: -- (717) 232-602 7 ,sea 8.03 trd wd! : 0 -? SOOZ 60 'CLMS £60Z9ZVL t4 : 'OH 3K:Hd A41ZNI MO W007.d134 : WOdd 71/.L5/.b?jz) V L/ LO/ LVV / / ; JY . 11 tW1 t%Vl till!L. Z. I-f vljJ r..uu 1AG16avaaua aa40 . 02/081200712:55 PM B27AC_63090 _ Exhibit B 717.257.6950 2/28/2007 7:54:11 AM AM PAUL GJ/UJZ) Tenn nazi0112Ll 1115. 0210812007 12:55 PM B27AC 63090 Homes, Inc. - 0o, s Old Post Road, Suite 200 rrisburg; PA 17110 , • ORDER DATE. 02/21!2003 VENDOR: JOB ADDRESS: JOB NUMBER: Lamarco Contracting Inc. Sterling Glen SG005 130 Hillymede Circle at Rt 114 & Woods Road liLA Harrisburg PA 17111 Mechanicsburg PA 17050 Project Manager Project Manager Phone: Ted Shaffer 648-5e34 Page 1 PLEASE SUPPLY THE FOLLOWING ITEM ITEM DESCRIPTION LENGTHS QUANTITY UNIT UNIT PRICE TOTAL PRICE V,z04340 HEATING 0020 HVAC as per quote dated Aug 7, 2002 1.00 Lsum 9,495.00 9,495.00 Roughin - $5,697 Equipment Set - $2,849 Finish - $949 - Provide the Following: 95t000BTU Furnace w.90+ efficiency 5 tons AC w110 SEER rating, gas piping to WM. Kitchen Range, Lenai (4 14 ss P Scuttle humidifier, Electrostaic Air Cleaner, programmable TStats. Furnace to be installed in the attic area A seperate WO has been issued to vent the downdr•aft range IMPORTANT NOTICE - PLEASE READ Net Order 9,495.00 Tax 0.00 TOTAL ORDER ;9,495.00 rayA>3 "bPAVJ Gr 000.00 Inv 3116 t?u?o3 3 '14? vv `This P.O. i5 subject to the terms of the Custer Homes'Trade Partner Agreement." IShLA-W-E' 'Payment shall be made on P.O. amount or vendor Invoice, whichever is less. `Return Quality Inspection Report with Invoice. IV 7Mr? * pp ;. `Do not begin work unless these terms and conditions are acceptabie ?t?i ,nv. b7.1o8 . -CHI will not honor additional charges NOT pre-authorized in writing by the Project Manager"" "- ArI o00.00 Authorized Signature: - - - - - X143 ZZ Custer Homes, Inc. DIRECTIONS : "'f?ooo?VLC? W IMPORTANT: PURCHASE ORDER NUMBER MUST APPEAR ON ALL INVOICES rlr'?a?•byt3 p 2/28/2007 7:54:11 AM AM IJAUt G4/Uj5 02/08/2007 12:55 PM B27AC_63090 wr cw yaa? ys•vr ry (b,fVV?1 Senn lvational Ins. L4-0k" FtAI:NU I AC PACE 04 O.LTER HGVa IIJC PACE 3 O+sl'gA HwdE56 IxC. S UPR Ea+fFarrAL SU1BCarr w- ACrR81: oe The parties to atlas Coumcdon Agreement are Custer Houva, Lae., "Surlier;' am A 4A sQ ?yf??ACT,e?J_UQ_ , "Subcontractor.' ?his Agresmarm shall govern ail labor performed and mac ial fiumsked by Subcontractor !br Builam- until cider party rv+wkea k by detivaing written notice of such revoeatioa to 6* otba patty If either party w-vokes ft agtxsmenk it JW be null and void for aD contracts entered into there4er. I. Subcoatzactot egreef• To pafbn r all work in a workmartltlte marmer, and To deliver aaaterials which are new arced in eccardaace with the plans and specifmrions delivered to Subcontractor. Upon recciviag notice from Budder that Subcontractor has performed iufetior, iruproya, or unsound labor or delivered materials at vniarrce %ith which it spaiD4 Subeoatrsetor ail within twenty. four (24) bourn, proceed to rcnevc luck work or material: end matte good all other work or materials damaged thereby, r Subcoatnctor shall mot suboontrnct any part of the work without the prior written consent of Builder, atad such oottsent abeD not release Subcontractor from ray respensibtl3ty or liability is connection with the subcotaract Z. It a =ztuatly undastood and agreed between Mder ad Subcontractor that Subcoturactor is as indgmdcnt eoaaragw, that at ao time are my of Subcontractor's employees is the emptoy of Budder, not is Budder respouxWe to ray of Subcontractor's employees for the pay=t oftheir wages: the Subcontractor shone is resportsM for complience with all applicable ntatutea, orfnances. and rvgl cw cowandng his empt"Is Sodal Srctirky, Workman's Compenation, and alt sdAy coe&tions end record keeping regaairemeats tinder '. the t]ccupadonaL Sa&ty and HoOh Act of 1970 and amendments thereto, State and Federal taxatiea, and Baasing Subcoatnctor shalt msicmdo, as bin own ap=m snob bsmv" as wM protca bim km worknam's compensation acts aid fom otbe r claims aad damages for pasonsi *my, itrcludmg death, is the Minimum Amoum of S500,000A, which tnay arise from opcratxom anoda this contract, whel a such opendant be by that Subeonew r or by any other RAC"traaas or his saployer by tnyaae d'uvaly or inarectly employed by either of them Subeoutractat hereby agrees to iadunn* ad hold hardess Builder from any claimers with reepect to the ataxters outUaW im the paragraph. A copy of subconew ot't Cat&cate of bmraaes mutt be tpprvved in writing by Cuter Haines, Inc u Iwt throe {`3)-day{peibr ro eomrt?ecaaerzr o£ wont-by- _ Subcontractor ..,vv L/LtS/LUU/ f:04:11 Ail Al•J YAIrL, GJ/ Vao 02/08/2007 12:55 PM B27AC 63090 5/LU, +?a. a_. or r1 reZ/oot/ UV40RM FEATIM A AC .12162.20M 1"?' 29 ;:"s_ CUSiER HOMES INC .' 3. Subc=tractor tgrem to pay for aD materials std aG labor supplied by Subcontractor for the job *be* due uud to bold Budder and that cen:a haratleu from nay Geis arising art of]abwr mataiits, or subcontracts Rurushed by Subcontractor. Btalder"have the right to regtcrs Subcontractor to provide releases by alt persons supplying labor, mnai* or sw%ices to Subeonttutor for tote job herein described add to uhhhold fires/ payawa ur4 vxb releases are suppled. Subcontractor acknowledges that k is u independent ooaflractor end agrees to pay aIl eoambutioas required by law or coatrut which if unpaid could be sn amuabrance upon the real property where the work is pattbrtned d. Subatrsetor agrees to permit other Subcetttractors reasocwbla eppertLwity for storage of matwisls sad axeemion of their work sad Shay pmpaiy c=diaate iu work with theirs. If say part of tits work to be pafoeaad by Subcootractor depends. for proper ex=rttoa, an the work of other subcombumrs or Builder or the owner. Subcounctor SW un u ediattdy report comets, defects of omissions this tender such other work vtttanely or.uasuimble for otacudoa of its wo& Procaeding with its work without such repatt of defecu is sad scceptutoe by Subcoomaor of the work of others that precedes, or Is perfonncd scm:ltaeeously wMb, its worts. Should SubaotttrttctV damage work of other subcontruton or Huiilder, Subcontractor shad pay the cost of repairing such die sad hold Builder and owner lyeradess. Subcontractor agrees that he w3 not hold Builder rapoembie for toss or darrtago or fnjuty eauaad by another subcoaosctor and Cumber agrees to look to said subepxWzctw for the recovery from it of Lay such damage or injury. Subcontractor sW proatre and pay an accessary pwaiiu required for performance by Subcontractor udder this agreemem which are obtaiaabtle by Subw t uvr tad will protect uofoasbed wwk and all materials for Subcoauaator's sue, or acideatat thereto, amt ray Icind of damage, iaeludag damage by the ekmetrs, except damage by fire, wa eaopledon of the huitdiag. 6. Subcontractor agrees to ranove Srom the rite, tuiless instsvctod othcrwlse, rubbish uW waste ma aUla crated by its operation as the wort progresses, is arda to maintain a clean, safe eondidoa sad. upon cornplsdoa of its work. to remove all tools, equipmetst, mstertab ad waste. All ladders are to be lowered aodlor nfdy stored et the rod of each day. Ray rubbish orarssm materials not deaaed up and Properly disposed of by Subcontractor wM caouit in a backrchuge. rG1111 ira VlvllM.L 111.1 . PAM M FMW 03 Subeoatrwar heraby tuscoad 6ons)ty guarantees ail /rest wvrk_Wr tad mucriats to Builder and the owoa or purchaser for to period of Bta 6@es watTa toihe owner or O chaw. 4# ?? .65x.6950 2/28/2007 7:54:11 AM AM PAUL 26/UJ5 02/08/2007 12:55 PM B27AC 63090 92i82/2r19?1 ? ;::4 :1 T Et:9 OUSTER KDOCS Itw 8. Braider Wee$ to supervise the wank and coordinate the Work of other ruppbers and subcotusaclors to enable Subcontractor to puform its work timely sad effiaexuty, and Builder agrees that it wM mate the psymetr<r required hergtmder promptly when due. Builder agrees to pay promptly Subeorms nor In his pefottaamoe of his work ad no later than 30 drys wdin whzhsioa of any invvice, oooditioned upon vwX=&tioA by Sunder that the work Etas bees sadsfauorsay performed. If payment 5 not saved within dis period and Subcontractor does ant receive zadeadan justifying the delay in pay uutt, Subcontractor may terminate this ;wannest upon severer (7) drys wrinen notice ofVs irteeatto do so. ifSubeoeuactor does so terminate Eelloavtg said twcoe, he ehsdl be emitted to receive the reasonable vahae oral mate:ials and I:bor incorporated in the job to the time oftermirsdcu and the profit Subcontractor vrould norenfly expect to have bees nWo had the contract been fully and properly po'focmed. 10. If the Subcontractor shalt become bankmpt; make arsigataeat for the bgnc& of cre&ars, or otherwise become unable to eanr out the work or if the Subeoatraetor, without proper causq rasoves Boat the work for a period in excess offotty-eight (43) bourn. then the Builder may, by notice in waiting or verbal to the Subcontractor, terminate this Agreement if actioa is not taken to cure said deftuh within twenty-fear (24) hoar after BuUa's comwxticttion of such actice. If Subcontractors sbd in soy manner unduly delay or odwwim neglect to FWA bis «WrAn"l aline; withaat bone fide cwse, within the time herembefors provided, or otlta Lse breach say provision of thin Apament, Bader may, by vnittes or verbal notice as berimbafore provided. requite the SubcoaCacw to proceed Math the work wirhic tweary-four (24) hours alter camrayance of such notice of correct arty such brracb of this Ag:eement within taattY-Tlout (ia) hour period and upon failure to do so, the Sunder shad them brave the 60 to terminate thu Agreement and to employ ray other Subcontractor to continue end eompleu the said wofk acccr6ag to raid pleas and tpe4cstioes, or any alters km-of additions as hetzinWars provided. and abd do bav- the right to authorize such r*umnew Aftonn7ator to use my materials cc property of the Subcoatraaar upon the ground If the upon to coarplete the eonlrack iA addtioa to my paymmus made of the Subco='sator bweuader, &A ezzeed the original subcontract pace phu costs for any add dczW work. Subcontractor sha be Eablc to the Builder for snob excess stags. Penn ivational ins-. PAGE Oa 11, In the event Sabooraittar discovers Way incomsotencies or won in his avant with the B?1der or other tubcwtracton in the plant and Veeibcatow, he shall, before pe fcr*n3 acid works, promptly brans >uA matters to the attentive of the DOdcr wbo shad! then give Subcotttzareta vain= kimcdoets or dirsodau relative tv Said incontistwer or city. No daims Cot addidaW acugantion vain be eottadeted wA Subcontractor shalt be eatitled t0 to such addraoaal surm, unless he shall 717. L5'/ . bJSU t7 STER HC£S IW- have if at all pos tible, brought the inconsistency or error to the Maildds anctWoe prior to perfotmina any work thereon. 12. 'ibis AF=xmt and every owomant mad provision herein IW bind, apply to, aad run rn favor of the pwi a, thcir sueceamors in interest and their legal represectativa. , 13. Ls construing this Agreement. the Builder and Subcontractor may bo more thm one person; flat if the contest to requires, tht singular pronoun 3W be taken to mean and include the phu the mascuLno, the femkine, ad the neuter, ad that generany all grarnmadcal changes shall be made, assumed, and implied to make the provisions hereof apply equally to corporations aad to individuals. 1-4m'wd &vlk m--'G Subcoamo wr E L/ L tS / L U U/ /: D'3 : l l AM AM eALI L G!/ V J J 0210812007 12:55 PM B27AC 63090 rr YG1111 11a Ll V1161 111.7 . rHa= O1 P04E 96 Subcontractor's Federal ID It Subcontractor's Address: so094 1;30 # / y'" 'eo Iacoepos'atedl ?Zyft ?no Business Phone. SGC?-?/`f I p F.merger>v7 Plsonr. S/? =256 9?f l00/ Accepted and approyed Z-Z,-}gtOa Custer Homes, Inc. der Builder's Address: 1309 Laurel Feint Circle Harritm& YA 17110 Busman Phase (71 >) 232 60V r-L I.LUr.bzj?u E 02/08/2007 12:55 PM B27AC_63090 2/28/200'1 "/:54:11 AM AM PAUt. 'Ltj/ujtb Penn ivational ins. Custer Homes, Inc. SUPPLF.mwrAL TuDE CONTR1croR AGREE mNT Trade Contractor mart prnuide a crrnent Certicatt of I?rrrmAa, xami?r? Custer Homes, Irtc , ar the Cestifuat: Holder. Tur Crrt fuate must be on f k prior to mleare of frrt pajxent. All Inwices mwt be irrued to Custer Homes, Inc. 2805 Old Part Road Suite 200, Har irburg, PA 17110. The parties to this Conduction Agreement are Custer Homes, Inc., "Builder," and LaMarco Heating and Cooling , `Trade Contractor." Tlsis Agreement shall govern all labor performed and mated famished by Trade Contractor for Builder until either party revokes it by &R-resing written notice of such cevocatioa to the other party. If either party revokes this agreement, it shall be null and void for all contracts entered into thereafter. Trade Contractor agrees: To perform all wont in a workmanlike manner, and To deliver materials which are new and in accordance with the plans and specifications delivered to Trade Contractor. Upon receiving notice from Builder that Trade Contractor has performed inferior, improper, or umouad labor or delivered materials at variance with which is specified, Trade Contractor will, within twenty-four (24) hours, proceed co remove such work or materials and make good all other work or materials damaged thereby. Trade Contractor shall not subcontract any part of the work without the prior written consent of Builder, and such consent shall not release Trade Contractor from any responsibility or liability in connection with the subcontract. 2. It is mutually understood and agreed between Builder and Trade Contractor that Trade Contractor is an independent contractor, that at no time are any of Trade Contractor's employees in the employ of Builder, nor is Builder responsible to any of Trade Contractor's employees for the payment of their wages; that Trade Contractor alone is responsible for compliance with all applicable statutes, ordic=ces, and regulations concerning his employee's.Social Security, Workman's Compensation, and all safety conditions and record keeping requirements under the Occupational, Safety and Health Act of 1970 and amendments thereto, State and Federal taxation, aad licensing. Trade Contractor shall maintain, at his own expense, such insurance as will protect hint from workmen's compensation acts and from other claims and damages for personal injury, including death, in the minimutn amount of $500,000.00, which may arise from operations under this contract, whether such operations be by the Trade Contractor or by any other trade contractors or his employer by anyone directly or indirectly employed by either of them. Trade Contractor hereby agrees to indemnify and bold harmless Builder from any claims with respect to the matters outlined in the paragmpls. A copy of Trade Contractor's MV iced 443 717.257.6950 2/28/2007 7:54:11 AM AM PAUL; Z9/U:35 02/0812007 12:55 PM B27AC 63090 Penn vationai ins. Certificate of Insurance must be approved in writing by Custer Homes, Inc. at least three (3) days prior to commencement of work by Trade Contractor. Trade Contractor agrees to pap for all materials and all labor supplied by Trade Contractor for the job when due and to hold Builder and the owner harmless from any liens Ldsing out of labor, materials, or subcontracts famished by Trade Contractor. Builder shall have the fight to require Trade Contractor to provide releases by all persons supplying labor, materials, or services to Trade Contractor for the job herein described and to withhold final payment until such releases are supplied. Trade Contractor acknowledges that it is an independent contractor and agrees to pay alt contributions required by law or contract which if unpaid could be as encumbrance upon the real property where the work is performed. 4. Trade Contractor agrees to permit other Trade Contactors reasonablc opportunity for storage of materials and execution of their work and shall properly coordinate its work with theirs. If any pa_^t of the work to be performed by Trade Contractor depends; for proper execution, on the work of other trade contractors or Builder or the owner, Trade Contractor shall immediately report conflicts, defects or omissions that render such other work untimely or unsuitable for execution of its work Proceeding with its work without such report of defects is and acceptance by Trade Contractor of the work of others that precedes, or is performed simultaneously with, its work Should Trade Contractor damage work of other trade contractors or Builder, Trade Contractor shall pay the cost of repairing such damage and hold Builder and owner harmless. Trade Contractor agrees that he will mot hold Builder responsible for loss or damage or injury caused by another trade contactor and further agrees to look to said trade contractor for the recovery from it of any such damagc or injure. Trade Contractor shall procure and pay, all necessary permits required for performance by Trade Contractor under this agreement which are obtainable by Trade Contractor and will protect unfinished work and all materials for Trade Contractor's use, or incidental thereto, against every kind of damage, including damage by the elements, except damage by fire, until completion of the building. W. U 6. Trade Contractor agrees to place debris in Bader's dumpster, unless instructed otherwise, rubbish and waste materials created by its operation as the work progresses, in order to maintain a clean, safe condition and, upon completion of its world to rcmove all tools, equipment, materials and waste. All ladders are to be lowered and/or safely stored at the end of each day. Any rubbish or waste materials not Beamed up and properly disposed of by Trade Contractor will result in a backcharge. Trade Contractor hereby unconditionally guarantees all his works, labor and materials to Builder aad the owner or purchaser for the period of Builder's warranty to the owner or purchaser. Builder agrees to supervise the work and coordinate the work of other suppliers and trade contractors to enable Trade Contractor to perform its work timely and m ised 443 I1I.LJ/.bJSU 0 . Z/Z8/ZUU"/ /:54:11 AM AM YAUt_, .3U/uj3 YCIlII 1YdLlUlldl 1115. 02/08/200712:55 PM B27AC_63090 efficieady, and Builder agrees that it will snake the payments required hereunder promptly when due. E c Builder agrees to pay promptly Trade Contractor in his performance of his work and no later than 30 days within submission of any invoice, conditioned upon verification by Builder that the work has been satisfactorily performed. If payment is not received within this period and Trade Contractor does not receive aotf=doa justifying the delay in payment, Trade Contractor may temlinate this Agreement upon seven () days written notice of his intent to do so. If Trade Contractor does so termintate following said notice, he shall be eadded to receive the reasonable value of all materials and labor incorporated in the jab to the time of termination, and the profit Trade Contractor would noanally expect to have been made had the contract been fully and properly performed.. 10. If the Trade Contractor shall become bankrupt, make assignment for the benefit of creditors, or otherwise become unable to carxp out the work or if the Trade Contractor, without proper cause, removes from the work for a period in excess of forty-eight (48) hours, then the Builder may, by notice in writing or verbal to the Trade Contractor, terminate this Agreement if action is not taken to cure said default within twenty-four (24) hours after Builder's communication of such notice. If Trade Contractors shall in any manner unduly delay or otherwise neglect to finish his responsibilities, without boas fide cause, within the time hereinbefore provided, or otherwise breach any provision of this Agreement; Builder tray, by written or verbal notice as hereiabefore provided, require the Truce Contractor to proceed with the work within twenty-four (24) hours after conveyaace of such notice or correct any such breach of this Agreement within twenty-four (24) hour period and upon failure to do so, the Builder shall then have the right to te-mim to this Agreement and to employ any other Trade Contractor to continue and complete the said work according to said plans and specifications, or any alterations or additions as hereiabefore provided, and shall also bave the right to authorize such replacement trade contractor to use any materials or property of the Trade Contractor upon the ground If the expense to complete the contract, is addition to any payments made of the Trade Contractor hereunder, shall exceed the original subcontract price plus costs for any additional work, Trade Contractor shall be liable to the Builder for such excess SUMS. 11. In the event Trade Contractor discovers any iaconsistenaes or errors in his work with the Builder or other trade contractors in the plans and specifications, he shill., before performing said work, promptly bring such mutters-to the attention of the Builder who shall then give Trade Contractor written instructions or directions relative to said inconsistency or error. No claims for additional compensation will be considered and Trade Contractor shall be entitled to no such additional sums, unless he_ shall have, if at all possible, brought the inconsistency or error to the Builder's attention prior to performing any work thereon. 12. This Agreement and every convenant and provision herein shall bind, apply to, and run M favor of the parties, their successors in interest and their legal repteseatatives. ® 13. In construing this Agreement, the Builder and Trade Contractor may be more than one person; that if the context so requires, the singular pronoun shall be taken to mean and include the plural, the masculine, the feminine, and the neuter, and that mvised 4A3 .i..GZ) /.b?:J 50 Z/ZE3/"LUU'/ '/ : b4 : 11 AM AM 1JACit!. .31/ U;35 F.+tnn 11aczorral Ill , 02/08/2007 12:55 PM B27AC_63090 gmesally- all grammatical changes shall be made, milin d, and implied to rozic tlsc provisions hereof apply equally to corporations and to indkidi:als. Trade Contractor's Address: 1361 N• JIVM&-Vc C/1 H/1--440W;. AW . 17111 Business Phone: 717 -rd j - yqt 1 Emergency Phone: 7/7 SLY Z 2 3 .; Fns: 72 7 Trade Coatrsctor's Federal M #: Iacorporated? 9yes Ono LaMarco Heating_aad Cooling Printed Trade Contractor Company Name ' 2N we DT- f A Printed a of radc Contractor Accepted and Approved Signature o Trade Contractor Dar Custer Homes, Inc. &a=7 Signature of Bader Builder's Address: 2805 Old Post Road, Suite 200 Harrisburg, PA 1711(T Business Phone (717) 232-6027 0 rmiud 03 717.257.6950 2/28/2007 7:54:11 AM AM PAUL _ 02108/2007 12:55..PM B27AC 63090 Terms and Conditions 0 v 0 Cnnstr action Reoutremeees: The wait of all Trade Coooaeton, hbeir employees. aadfar bade: is a t?eae I to be performed is s geed and wortsramlike tmarw WortrnsnlEEke quality is defined as werktmmhip which meets err berms those cniicria indicated in the cosstrudoa plant, The Company's S ope of Wort ad defined by industry Standards for each trade. tasnectloa Rtlaft The Trade: Coaaww and t Coapmy tepnmmabvt shall wally the job together and complete tack sermon of the inspection repass} The Trade Contractor must cotreet trey deUeimcy found daring true iaspectica and test job muse be I 00-percent complete berfae paytaem will be made The Trade Contractor and it Company representative must sigoorT on all seetim of the irapermon reports(s) snestrth2 that the job is ratted and eotttpiar. Pusch-List; The site srpaioteadentshall impectthe work ofeaeh Trade Contractor and will issue a p ach-list of all items reepiting earrecf= as soon as the Tmda Contractor hu completed ho or her works The Trade Contradw is opetsed to immediately wmplem teit punch-list so that he or she don not slow down the overall carattwtion of the home and er the schadulias of the next trade contractor. Should the Tade Conaaemr ant rerun to complete be or her punch-list within a reasonable dine then the site ta?aiateodern may hire 30MMAC to complete the punch-list and to Trade Caneacoor will be back charged for this work The job will not be eoosidered to be complete and an paymou shalt be made until all punch-lint itais ate completed and approved by die Site sttpe:imadcuL Homeowaeey Walk-Through Lint Any items found on the hammw-ei waiit-thratgh that require correction must be ramplemd immodiatey upon nodfieatioa by the sitc samperioteddent Time is of the asenm for compbmb4 eamaiom on honlmwoQp s walk- throaghs If any Trade Caonacmr does not reuses to raatect W or her items limed an the walk-dir t igh list then someone else will be bued to maim the cottecdoas sad the Trade Contractor wile be back durvd Sef? Tbc Trade Contractor acknowledges that he or she hastwin complete the Safely Training programs as required by The Company and that be or she has his or her own Safly and Hai-Com program for merit empb;roa uW*r ands catu amer. Trade Caenutor agrees to comply with OSHA "or any other governmental ageocy's aa* rota and re ulsdeas. Should any cations, fine, and/or peaalties, am, be incurred by no Company due to the negligence of the Trade Contractor, the Trade Contractor agrees to indemnify The Comps-y for any and ail penalties, fang err, fnetuted. era ace: (Trade Contractor scimowladgss the a requirement of warb4 for The Company is for die Trade Contractor to have current Worker's Compensarioa and Comets Liability Insurance at ad amts. The Trade Contractor agrees to indemnify The Company and to be aapansible log any claim, arpersa, er Hagman ansatg fiom may claim taade qpw The Company due to any injury of its Trade Contractor's employee or wade na-mute for any worker's eon;tasatioa claim. The Trade Contractor also agrees to indemnify The Company and to be taspo-snble for say claims, w9c: cs, a litigation arising from any duim made sgaitst The Company due to the worim irtship, equipment, or materials supplied by the Trade Coatnetar_J !t is yaw responsibility to notify as immediately if your insurance Ice canceled for any reason. No Trade Contractor it allowed to work wierout current Insurance Should you fail to notify w and we are notified of your uninstir d Status by someone otter tun yoLk you will be :moved hen our list of approved Trade Coatractoo and all many due you for any work will be widikidd. in full tmtfl you have current insurance and we have teaived a new original Cettifiate of insunocs. Seeut": The Trade Contractor is re po srble for closing wad loekmg all windows artd dogn befm leaving t6a job site at die end of each day. If there is a problem on t6job site bee to Trade Cooftic of act dosing and locking >a windows end doom theT ade Coneaetor shall be responsible fbr Said rarigmce. Jz/UJZ5 Senn ldationai ins, clawfluess: The Trade Contractor is rcsponuhble for leaving the work area dean and free of debris. If it is necessary for The Company is remove debris left by the Trade Comaaco r, the Trade Contractor will be assessed a mkdraum clcan.igfm d S tan.00. The sift s-,PW. rrrmdant or other The Company repmetioaave will desipsor an am for all building debris and trub to be placat Such an may be a dumpsKr at a daipated Cash pile on two lat. Trash sane as hmeh or mink auk is not is be drawn' on the floorefthe house or on the jobsiss_ All such trash must be placed is the Gash bukat/eaddumpirter and properly secured so as to not blow away. Port-:'johns are provided oa all job sites. Any Man foasd using sinlm It s, commodes diem ate not latroked mR ductwork closets, em. u a miles will be fined 5100.00 and M11 ant be allowed back an uiy of The Company's jodsims. It it the responsibulity of the Trade Contractor to impress ao his or her eatployces wad trade convacaacs that this odensive habit of thing any area a a miler facility will not be mleratat Wama . Ali watr is to be gnaraattced for one (L) year Dorn dads of closing of the horse Certain items mast be gutrenaad for (2) years. There items are deter/: in The Company's printed Limited Wwasty booklet The Trade Contractor edmowlodgn that he or she received a copy of The Company's printed Ibmlbd Wurmty booklet and that he or she agrees to abide by the watnary coverage requirtarmix and time period primed in d&b document as they perms to his or her trades Dra[-Free WadWlaee. The Company is a abut-fraz workplace The use of any controlled substances (drug) at alcohol on uryofThe Congsny's jobeita(s) is out petmimed. Should eke Trade Cormaear, his other employers anwat bade cmtaadora be found to be in posses sion of either drugs or alwbof on the jobsite(s) the Trade Contractor wif) be requested m lave the jobsite and will not be allowed to tenon in wort stmt tea problem is coneacd. Friciar,KMaee Orden: All work is quoted trod priced per beram ptyaheat will be aide per the price listed on the ptachuc order. Any change order will be priced per change ottim No tdditaaal Wont colt be considered, atlewtA co paid Other that tut: priced as the pw*m ceder. Should the Trade Contractor be requested to Fedoras wry additional wort the Trade Contractor mutt request a hand purchase order flora the Sim superiatcodea bc*rc addinood work is performed Parehaae Order Number Yo invoice" be pad that does not include the pt--hue order number far the job. The preprinted Request for Payment Wood by The Company will be usd as rAe invoirs. Trade Contractor shalt not begun work before The Company has issued a Purchase ptdm Dermaae and/or Wastefulness of M1tateniab Damage to msmm&b and i=Wled itow such as Doering windows. abieeay. fixtim, at, ntued by negigence on the part of the Trade Caamctor, his at her employm ax&w trade coatractors wiD taut in backehuM for the amount necessary in replace or repair the imL Wastefulness of mataialt by en Trade Conn= will result is the cost of dac material being daiumed from payment die the Trade Contractor. Preaf e[ Name wad IRS M Namberr The aU Rquites /hat we Rave oft file in our office proof that the name and Federal m amber (ar Steal Seeurityy member) that you ant Waif ff tett'a is the team IS is on file With the MS. We require a copy of % document Flom the IAS showing your -use and M number (Federal !D far businesses x Social Scurvy number for individuab} You also will be asked to complete a Faro W-9. Without this docomcmtaoon the IIU tetluires that we withhold 20 percent of ail moaey, due you. which must tam be forwarded n the IRS. The'imund name" on your intumcc catifaam meat mach the rime as the docuarc-m above and the W-9. All checks will be made payable to the um can the above. No imuaance certificate will be accepted as valid that reflects i different airne From the one an above-described doatatunts. Signature of Trade Contractor Date r /17. `L5'/ . bySU Z/Zti/LUU/ /:54:ll AM AM PAUL .3.3/V3 02108/2007 12:55 PM B27AC 63090 YCIIll IldT lVILAI 1115 Exhibit C • 717.257.6950 2/28/2007 7:54:11 AM AM PAGE 34/035 02/08/2007 12:55 PM B27AC 63090 Penn National ins, •r F;artisbwg claims savte Me P.O. eax 3880 HenisbLq, PA 17105.3880 800.942.9715 Phwa 717.230.x200 Phase 800.833.9422 CIMS-Mgt flu 717.221.6062 C*=-Mgt Fa w,mP9wNaWna0nnme.mm May 19, 2005 PENN NATIONAL 111-0 INSURANCE Rhoads & Sinon Attn: Jennifer Zimmerman P.O. Box 1146 Harrisburg, PA 17106-1146 RE: Our Claim No: 02707761 Our insured: LaMarco Contracting Date of Loss: 1/20104 Your Client: Heirloom Cabinetry Claimant: Stephen Neiman Dear Ms. Zimmerman: This letter will acknowledge receipt of your correspondence dated May 17, 2005. As I have previously advised your client directly, we have denied liability on behalf of LaMarco Contracting for ft damages to the cabinetry constructed by your client According to the expert we retained, the humidity level increase from the minor leak which occurred in January was not enough to result in the substantial cracking to all of the laminated pieces of wood, Mr. LaMarco was maintaining the humidity levels in the house according to the requests of Stan Custer of Custer Homes. The levels did not rise throughout the entire dwelling enough to cause the damages alleged. The only humidity levels taken were near the leak in the closet area connecting the dining room and kifchen areas. The hardwood floors immediately next to the closet were initially warped, but returned to their original condition. The cabinet damage was sustained throughout the entire dwelling, including the bedreom, which was the furthest distance away from the. leak. No evidence has been presented which indicates that the humidity levels in the home resulted in the damages as claimed. Therefore, we are maintaining our position of denial If you take legal action, we simply request a courtesy copy of the complaint S?infcerel?y, r , Heather Arnold, A1C, AIM, AIS, SCLA Team Leader a r 717.257.6950 2/28/2007 7:54:11 AM AM PAUL Jb/U;iS 02/08!2007 12:55 PM B27AC 63090 enn Naziona.i iris. CERTIFICATE OF SERVICE I hereby certify that on this ? day of & W iq , 2007, a true and correct copy of the foregoing Amended Complaint was served by means of United Statcs mail, first class, postage prepaid, upon the following: Laiviarco Contracting, Inc. 130 Hillymede Circle Harrisburg, PA 17111 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: Thomas J. Nehilla, Esquire RHOADS & SINON, LLP One South Market Square, 12th Floor P.O. Box 1146 Attorneys for Plaintiffs THOMAS, THOMAS & a mie L. Bi Dated: March 6, 2007 486015.1 ?? ? ? C? ?? _? ? ? -n `x ?J . -a T _ . _ - - -"' _ .`t =i [ra :? W THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire I.D. No. 06776 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717) 255-7632 kprice(a?tthlaw.com CUSTER DESIGN GROUP, INC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. and HEIRLOOM CABINETRY OF PENNSYLVANIA, INC., Plaintiffs V. LAMARCO CONTRACTING, INC., Defendant Attorney for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 06-4482 Civil : JURY TRIAL DEMANDED PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Please withdraw the appearance of C. Kent Price, as counsel on behalf of Defendant LaMarco Contracting, Inc. in the above-captioned matter. THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 I.D. No. 06776 ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE AND NOW, this -5 day of March, 2007, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendant, hereby certify that I have this day served the within Praecipe for Withdrawal of Appearance by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Thomas J. Nehilla, Esquire Jennifer Zimmerman, Esquire Rhoads & Sinon LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire u4 ??;_ rn v s. Thomas J. Nehilla, Esquire Attorney I.D. No. 67326 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs CUSTER DESIGN GROUP, INC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. And HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiffs V. LAMARCO CONTRACTING, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-4482 Civil JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO DEFENDANT LAMARCO CONTRACTING, INC.'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' AMENDED COMPLAINT NOW COME, Plaintiffs Custer Design Group, Inc. for the benefit of Heirloom Cabinetry of Pennsylvania, Inc., and Heirloom Cabinetry of Pennsylvania, Inc. by and through their attorneys, Rhoads & Sinon LLP, and file the following Response to Defendant LaMarco Contracting, Inc.'s Preliminary Objections to Plaintiffs' Amended Complaint: 1. Denied as stated. Plaintiffs Custer Design Group, Inc. for the benefit of Heirloom Cabinetry of Pennsylvania, Inc. and Heirloom Cabinetry of Pennsylvania, Inc. ("Plaintiffs") filed an Amended Complaint ("Complaint") on or about February 6, 2007. By way of further response, the Complaint is a writing which speaks for itself. 644365.1 2. The Complaint is a written document which speaks for itself; therefore, no responsive pleading is required. 3. The Complaint is a written document which speaks for itself, therefore, no responsive pleading is required. 4. The Complaint is a written document which speaks for itself; therefore, no responsive pleading is required. By way of further response, Plaintiffs allege that Defendant was a party to a subcontract in Paragraph 6 of the Complaint, rather than in Paragraph 8 of the Complaint. 5. Denied as stated. Plaintiffs do not allege that the humidity levels at the property were maintained at abnormal levels in Paragraph 15 of the Complaint (attached to Defendant's Preliminary Objections as Exhibit A and incorporated herein by reference). Instead, Plaintiffs allege, in part, that: the humidity levels in the Nieman Residence were, at times, extremely high, and at times, below normal. The humidity levels were at such an abnormal level throughout the house that it damaged the hardwood floors and permanently damaged the Heirloom wood used to construct the Heirloom Cabinetry and the Heirloom Furniture. [Compl. 115]. By way of further response, the Complaint is a written document which speaks for itself; therefore, no responsive pleading is required. 5. The Complaint is a written document which speaks for itself, therefore, no responsive pleading is required. 6. The Complaint is a written document which speaks for itself; therefore, no responsive pleading is required. 2 7. The Complaint is a written document which speaks for itself, therefore, no responsive pleading is required. 8. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent this paragraph is deemed to contain factual allegations, such allegations are denied. 9. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent this paragraph is deemed to contain factual allegations, such allegations are denied. 10. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent this paragraph is deemed to contain factual allegations, such allegations are denied. I - DEMURRER 11. In response to Paragraph 11, Plaintiffs repeat their responses to all of the prior allegations as if set forth herein. 12. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent this paragraph is deemed to contain factual allegations, such allegations are denied. 13. The Complaint is a written document which speaks for itself, therefore, no responsive pleading is required. 3 14. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent this paragraph is deemed to contain factual allegations, such allegations are denied. 15. The Complaint is a written document which speaks for itself; therefore, no responsive pleading is required. By way of further response, this paragraph contains a conclusion of law to which no responsive pleading is required. To the extent this paragraph is deemed to contain factual allegations, such allegations are denied. 16. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent this paragraph is deemed to contain factual allegations, such allegations are denied. 17. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent this paragraph is deemed to contain factual allegations, such allegations are denied. WHEREFORE, Plaintiffs respectfully request this Honorable Court dismiss Defendant's Preliminary Objections and enter judgment against Defendant. II - MOTION TO STRIKE 18. In response to Paragraph 18, Plaintiffs repeat their responses to all of the prior allegations as if set forth herein. 19. The Complaint is a written document which speaks for itself; therefore, no responsive pleading is required. 4 20. The Complaint is a written document which speaks for itself, therefore, no responsive pleading is required. By way of further response, this paragraph contains a conclusion of law to which no responsive pleading is required. To the extent this paragraph is deemed to contain factual allegations, such allegations are denied. 21. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent this paragraph is deemed to contain factual allegations, such allegations are denied. 22. The Complaint is a written document which speaks for itself; therefore, no responsive pleading is required. 23. The Complaint is a written document which speaks for itself; therefore, no responsive pleading is required. 24. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent this paragraph is deemed to contain factual allegations, such allegations are denied. 25. The Complaint is a written document which speaks for itself; therefore, no responsive pleading is required. 26. The Complaint is a written document which speaks for itself; therefore, no responsive pleading is required. 5 27. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent this paragraph is deemed to contain factual allegations, such allegations are denied. 28. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent this paragraph is deemed to contain factual allegations, such allegations are denied. 29. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent this paragraph is deemed to contain factual allegations, such allegations are denied. 30. The Complaint is a written document which speaks for itself; therefore, no responsive pleading is required. By way of further response, this paragraph contains a conclusion of law to which no responsive pleading is required. To the extent this paragraph is deemed to contain factual allegations, such allegations are denied. 31. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent this paragraph is deemed to contain factual allegations, such allegations are denied. 6 WHEREFORE, Plaintiffs respectfully request this Honorable Court dismiss Defendant's Preliminary Objections and enter judgment against Defendant LaMarco Contracting, Inc. in the amount of $34,558.00 plus interest, punitive damages, attorneys fees, and all other costs advanced by Plaintiffs. Respectfully submitted, RHOADS & SINON LLP DATED: March , 2007 BY: ,. Thakfias J. Ne ' Attorney ID No. 67326 Jennifer Zimmerman Attorney ID No. 89459 P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs 7 CERTIFICATE OF SERVICE I hereby certify that on this day of MIq M , 2007, a true and correct copy of the foregoing Plaintiffs' Response To Defendant LaMarco Contracting, Inc.'s Preliminary Objections To Plaintiffs' Amended Complaint was served by means of United States mail, first class, postage prepaid, upon the following: W. Darren Powell, Esquire Thomas, Thomas & Hafer LLP P.O. Box 999 305 North Front Street Harrisburg, PA 17101 C7 -ts ? t "7 6 .,, f cA) PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE: (entire caption must be stated in full) CUSTER DESIGN GROUP, INC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. and HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiffs vs. LAMARCO CONTRACTING, INC. Defendant No. 06-4482 Civil 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant LaMarco Contracting, Inc.'s Preliminary Objections to Amended Complaint 2. Identify counsel who will argue case: (a) for plaintiffs: Thomas J. Nehilla, Esquire address: Jennifer Zimmerman, Esquire Rhoads & Sinon, LLP P.O. Box 1146 Harrisburg, PA 17108-1146 (b) for defendants: W. Darren Powell, Esquire address: Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 3. 1 will notify all parties in writing within two days that this case has argument. 4. Argument Court Date: May 16, Dated: March 23, 2007 listed for Inc. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served upon enclosing a true and correct copy in an envelope addressed as follows, postage Thomas J. Nehilla, Esquire Jennifer Zimmerman, Esquire RHOADS & SINON, LLP One South Market Square, 12th Floor P.O. Box 1146 Attorneys for Plaintiffs THOMAS, THOMAS & y- Tammie L. Ber heiw. r (FER, LLP i owing, by id: Dated: March 23, 2007 486015.1 C?? `-'? p -Tj y= - rn . j ---4 a 11 W. Darren Powell, Esquire Corey J. Adamson, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7639 Attorneys for Defendant CUSTER DESIGN GROUP, INC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. and HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiffs V. LAMARCO CONTRACTING, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-4482 Civil JURY TRIAL DEMANDED Defendant PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter my appearance as attorney for Defendant LaMarco Contracting, Inc. in the above matter. Respectfully submitted, THOMAS, THO S & HAFER, By: Core y Ad on, Esquire Attne 115. o. 204508 305 Nort F nt Street P.O. Bo 9 Harrisburg, PA 17108-0999 (717) 255-7639 Date: CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: Thomas J. Nehilla, Esquire Jennifer Zimmerman, Esquire RHOADS & SINON, LLP One South Market Square, 12th Floor P.O. Box 1146 Attorneys for Plaintiffs THOMAS, THOMAS & HAFER, LLP di" A Sherry H nstein Dated: April 30, 2007 486028.2 2 C7 r-3? O n„e. CUSTER DESIGN : IN THE COURT OF COMMON PLEAS OF GROUP, INC., for the : CUMBERLAND COUNTY, PENNSYLVANIA benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC., and HEIRLOOM CABINETRY OF PENNSYLVANIA, INC., Plaintiffs v LaMARCO CONTRACTING, INC., Defendant CIVIL ACTION--LAW NO. 06-4482 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' AMENDED COMPLAINT BEFORE OLER, GUIDO and EBERT, JJ. ORDER OF COURT AND NOW, this 21s' day of June, 2007, upon consideration of Defendant's preliminary objections to Plaintiffs' amended complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows with respect to Plaintiffs' Amended Complaint: 1. Count I (contract claim of Plaintiff Custom Design Group, Inc., and contract claim "for the benefit of Plaintiff Heirloom Cabinetry of Pennsylvania, Inc.) is dismissed; 2. The demand for punitive damages is stricken; 3. The demand for attorney's fees is stricken; 4. References to Defendant's insurance coverage are stricken; 5. The words "was not limited to" are stricken; 6. Averments that Defendant failed to comply with "industry standards and practices and ... applicable building VINVAIASNN3d AINnc,j^ '- -' - isvino CC :Z Wd I Z Nnr LOOZ A8b'.lCrN3viiC,Idd 3H1 d4 30H?91d codes" will be deemed stricken without further order of court unless, within 20 days of the date of this order, a second amended complaint is filed which specifically identifies the same; 7. No other relief is granted with respect to Defendant's preliminary objections. BY THE COURT, homas J. Nehilla, Esq. Jennifer Zimmerman, Esq. One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorneys for Plaintiffs X. Darren Powell, Esq. Corey J. Adamson, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17101 Attorneys for Defendants J J Wesley Ol Jr., J. V t ?v OL CUSTER DESIGN GROUP, INC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC., and HEIRLOOM CABINETRY OF PENNSYLVANIA, INC., Plaintiffs V. LaMARCO CONTRACTING, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION--LAW NO. 06-4482 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' AMENDED COMPLAINT BEFORE OLER, GUIDO and EBERT, JJ. OPINION and ORDER OF COURT OLER, J., June 21, 2007. For disposition in this civil case are preliminary objections to an amended complaint. The complaint, involving the construction of a house, arises out of an allegedly deficient installation of an HVAC system by the defendant, a subcontractor. The preliminary objections were argued before an en bane court on May 16, 2007. For the reasons stated in this opinion, the preliminary objections will be sustained in part and denied in part. STATEMENT OF FACTS The present action was commenced on August 4, 2006, by the filing of a complaint bearing the caption "Custer Design Group, Inc., for the benefit of Heirloom Cabinetry of Pennsylvania, Inc., Plaintiff v. LaMarco Contracting, Inc., Defendant."' Pursuant to leave of court ,2 an amended complaint was filed on February 6, 2007, bearing the caption "Custer Design Group, Inc., for the benefit of Heirloom Cabinetry of Pennsylvania, Inc., and Heirloom Cabinetry of Pennsylvania, Inc., Plaintiffs v. LaMarco Contracting, Inc., Defendant."3 The allegations of Plaintiffs' amended complaint may be summarized as follows: Plaintiff Custer Design Group, Inc., is a Pennsylvania business corporation having offices in Harrisburg, Dauphin County, Pennsylvania, with its principal business being that of a general contractor in the construction of residential homes.4 Plaintiff Heirloom Cabinetry of Pennsylvania, Inc., is a Pennsylvania business corporation having offices in Mifflintown, Juniata County, Pennsylvania, with its principal business being that of a fabricator and installer of wood cabinetry and fabricator of wood furniture.5 Defendant, LaMarco Contracting, Inc., is a Pennsylvania business corporation having offices in Harrisburg, Dauphin County, Pennsylvania, with its business being that of an HVAC contractor.6 At some point in time, a certain third party contracted with Plaintiff Custer Design Group, Inc., to construct a house on realty owned by the third party in Mechanicsburg, Cumberland County, Pennsylvania.7 Thereafter, in October of 2003, Plaintiff Custer Design Group, Inc., engaged Plaintiff Heirloom Cabinetry of Pennsylvania, Inc., as a subcontractor on the project to fabricate and install cabinetry, paneling, and other wood products.8 ' Plaintiff's Complaint, filed August 4, 2006. 2 Order of Court, February 1, 2007 (Guido, J.). 3 Plaintiffs' Amended Complaint, filed February 6, 2007. 4 Plaintiffs' Amended Complaint, para. 1. 5 Plaintiffs' Amended Complaint, para. 2. 6 Plaintiffs' Amended Complaint, para. 3. Plaintiffs' Amended Complaint, para. 4. 8 Plaintiffs' Amended Complaint, para. 5 and Ex. A. 2 At some point in time, a corporation known as Custer Homes, Inc. (which Plaintiffs now concede is an entity different from named Plaintiff Custer Design Group, Inc.9) engaged Defendant LaMarco Contracting, Inc., as a subcontractor on the project to install an HVAC system.10 This installation, completed in October of 2003,11 was improperly performed. 12 In particular, Defendant "fail[ed] to install an appropriate overflow condensation pan or drain for the humidifier which was suspended above the dining room ceiling."13 Ceiling, wall and floor damage, as well as damage to cabinetry and furniture, resulted from water and/or high humidity attributable to Defendant's improper installation. 14 As a consequence of the foregoing, Plaintiffs have incurred various expenses in repairing and replacing items in the house. 15 Plaintiffs' Amended Complaint consists of a breach of contract claim by Plaintiff Custer Design Group, Inc., brought on its own behalf and "for the benefit of Heirloom Cabinetry of Pennsylvania, Inc.," 16 and a negligence claim by Plaintiff Heirloom Cabinetry of Pennsylvania, Inc., 17 against Defendant LaMarco Contracting, Inc. Each count alleges that Defendant's actions "were wanton, outrageous and reckless, thereby justifying an award of punitive damages and attorneys' fees."18 9 Plaintiffs' [sic] Brief in Opposition to Defendant LaMarco Contracting, Inc.'s Preliminary Objections to Plaintiffs' Amended Complaint, at 4-5; Plaintiffs' counsel also conceded this point at oral argument. 10 Plaintiffs' Amended Complaint, para. 6 and Ex. B. 11 Plaintiffs' Amended Complaint, para. 7. 12 Plaintiffs' Amended Complaint, para. 10. 13 Plaintiffs' Amended Complaint, para. 10. 14 Plaintiffs' Amended Complaint, paras. 11-22. " Plaintiffs' Amended Complaint, paras. 20-26. 16 Plaintiffs' Amended Complaint, paras. 30-34. 17 Plaintiffs' Amended Complaint, paras. 35-38. 18 Plaintiffs' Amended Complaint, paras. 34, 38. 3 Paragraph 9 of Plaintiffs' Amended Complaint alleges that Defendant "owed a general duty to install the HVAC system ... in a workmanlike manner." Paragraph 10 of Plaintiffs' Amended Complaint alleges, without further specification, that the impropriety of Defendant in the installation "was not limited to" the failure to install the appropriate overflow condensation pan or drain for the humidifier. Paragraphs 9, 32-33 and 36-37 allege, without further specification, that Defendant failed to comply with "industry standards and practices and ... applicable building codes." Paragraph 23 alleges that Defendant's insurance company reimbursed Plaintiff Custer Design Group, Inc., for certain costs relating to Defendant's performance. Paragraph 28 alleges that the same insurance company refused to reimburse Plaintiff Heirloom Cabinetry of Pennsylvania, Inc., for its costs in replacing cabinetry and furniture. Defendant's preliminary objections to the amended complaint consist of the following: (1) a demurrer to the contract claim of Plaintiff Custer Design Group, Inc., to the extent that the claim is asserted on its own behalf, due to a lack of privity with Defendant;19 (2) a demurrer to the contract claim of Plaintiff Custer Design Group, Inc., to the extent that the claim is asserted on its own behalf, due to its admission that (some of) its loss had been paid by Defendant's insurer; (3) a demurrer to the contract claim of Plaintiff Custer Design Group, Inc., to the extent that the claim is asserted on behalf of Heirloom Cabinetry of Pennsylvania, Inc., due to a lack of standing;20 (4) a demurrer to the negligence claim of Heirloom Cabinetry of Pennsylvania, Inc., due to the expiration of the statute of limitations; (5) a motion to strike Plaintiffs' claims for punitive damages, due to the inappropriateness of such relief on a contract claim and an absence of a factual 19 Defendant LaMarco Contracting, Inc.'s Preliminary Objections to Plaintiffs' Amended Complaint, para. 15. 20 Defendant LaMarco Contracting, Inc.'s Preliminary Objections to Plaintiffs' Amended Complaint, para. 12. 4 basis for such damages as to either claim;21 (6) a motion to strike Plaintiffs' claims for attorney's fees, due to the lack of a legal basis for such relief;22 (7) a motion to strike references to insurance, due to their scandalous and impertinent nature; 23 (8) a motion to strike the "was not limited to" language of the complaint, due its unlimited scope; (9) a motion to strike the allegation of unworkmanlike performance, due to its generality; and (10) a motion to strike allegations of unspecified violations of industry standards, industry practices and building codes, due to their generality. These objections will be discussed seriatim in the balance of this opinion. DISCUSSION Demurrer to contract claim of Plaintiff Custer Design Group, Inc., brought on its own behalf, due to lack of privity. As a general rule, a breach of contract claim can not be sustained in the absence of privity between the plaintiff and defendant. See Farabaugh v. Pennsylvania Turnpike Commission, 590 Pa. 46, 911 A.2d 1264 (2006). The facts alleged in the present case do not implicate an exception to this general rule, and accordingly Defendant's demurrer to the contract claim of Plaintiff Custer Design Group, Inc., brought on its own behalf will be granted. Demurrer to contract claim of Plaintiff Custer Design Group, Inc., due to its admission that some of its loss had been paid. "There is no such thing as a `partial' demurrer-a demurrer to a part only of plaintiffs claim." Snyder v. Munroe, 1 Adams L.J. 129, 137, 27 Pa. D. & C.2d 32, 42 (1960) (citations omitted). In the present case, although Plaintiff Custer Design Group, Inc., indicates that some of its losses have been paid, it does not concede that full 21 Defendant LaMarco Contracting, Inc.'s Preliminary Objections to Plaintiffs' Amended Complaint, para. 20. 22 Defendant LaMarco Contracting, Inc.'s Preliminary Objections to Plaintiffs' Amended Complaint, para. 20. 23 Defendant LaMarco Contracting, Inc.'s Preliminary Objections to Plaintiffs' Amended Complaint, paras. 28-29, 31. 5 compensation has been received. Accordingly, it would be inappropriate to grant a demurrer to the contract claim on the theory that Plaintiff has been partially compensated for Defendant's alleged breach. Demurrer to contract claim of Plaintiff Custom Design Group, Inc., brought 'for the benefit of' Heirloom Cabinetry of Pennsylvania, Inc., due to lack of standing. As a general rule, to have standing to bring a suit a party must show "a direct and substantial interest [and] a sufficiently close causal connection between the challenged action and the asserted injury to qualify the interest as `immediate' rather than `remote'." Allegheny County v. Monzo, 509 Pa. 26, 33-34, 500 A.2d 1096, 1100 (1985) (citations omitted); see Pa. R.C.P. 2002 (prosecution of actions by real parties in interest; exceptions). An arrangement whereby one person or entity, not the real party in interest, pursues the claim of the real party in interest, is frequently considered champertous and legally uncognizable. Clark v. Cambria County Board of Assessment Appeals, 747 A.2d 1242, 1246 (Pa. Commw. Ct. 2000). No exception being evident in the present case to the general rule that a claim may not be prosecuted by a person or entity other than the real party in interest, Defendant's demurrer to the contract claim of Plaintiff Custom Design Group, Inc., filed "for the benefit of' Heirloom Cabinetry of Pennsylvania, Inc., will be granted. Demurrer to negligence claim of Plaintiff Heirloom Cabinetry of Pennsylvania, Inc., due to expiration of statute of limitations. The statute of limitations for negligence actions of the present type would appear to be two years. Act of July 9, 1976, P.L. 586, §2, 42 Pa. C.S. §5524. In general, a statute- of-limitations defense is to be raised in new matter at the time an answer is filed, rather than by preliminary objection. Pa. R.C.P. 1030; Cohen v. Mirin, 1999 Pa. Super. 103, ¶8, 729 A.2d 1236, 1238 (1999). An exception to this rule applies, at least in the absence of a preliminary objection to the preliminary objection, where the expiration of the limitations period prior to the commencement of suit is 6 evident from the complaint itself. See Davis v. Commonwealth, 660 A.2d 157, 159 n.2 (Pa. Commw. Ct. 1995). In certain types of cases, under the "discovery" rule a statutory limitations period will not be deemed to have begun to run prior to the time that the plaintiff knew, or should reasonably have known, (1) that he or she has been damaged and (2) that the damage was caused by another's conduct. Redenz v. Duquesne Light Co., 341 Pa. Super. 329, 331-32, 491 A.2d 841, 842 (1985). In the present case, it is not clear from the face of Plaintiffs' complaint that the statute of limitations as to the negligence claim had run prior to the commencement of suit. For this reason, Defendant's demurrer to the negligence claim based upon the statute of limitations will not be granted. Motion to strike punitive damage claims. Punitive damages are rarely recoverable on a claim for breach of contract. The Flynn Co. v. Peerless Door & Glass, Inc., 2002 WL 1018937 (Philadelphia Co. 2002). In addition, a court may award punitive damages in an action only where the described conduct was "committed willfully, maliciously, or so carelessly as to indicate wanton disregard of the rights of the party injured." G.J.D. v. Johnson, 552 Pa. 169, 172, 713 A.2d 1127, 1129 (1998). When a party demands punitive damages, courts have found "no fault in utilizing words such as wanton, reckless, willful and intentional; however, to support an award of punitive damages the pleadings must state in what manner defendant[']s conduct was egregious and[/or] intentional." Davis v. Clear Lake Lumber, Inc., 6 Pa. D. & C.4th 67, 73 (Warren Co. 1989); see Van Ingen v. Wentz, 70 Pa. D. & C.2d 555 (Monroe Co. 1975). In the present case, the law would not support a recovery for punitive damages with respect to any contractual claim made, nor do the allegations of the complaint provide any factual basis for a conclusion that Defendant's conduct was malicious, wanton, reckless, willful or oppressive. Plaintiffs' claims for punitive damages therefore can not survive a motion to strike. 7 Motion to strike attorney's fees claims. As a general rule, attorney's fees will not be awarded unless there is an applicable statute, contractual agreement or other established exception that allows such recovery from the adverse party. Commonwealth, Department of Transportation v. Smith, 145 Pa. Commw. 164, 168, 602 A.2d 499, 501 (1992). No facts implicating an exception to the general rule have been pled in this case, and Plaintiffs' claims for attorney's fees can not be sustained. Motion to strike references to insurance. In order for an allegation to be deemed scandalous and impertinent, the allegation must be immaterial and inappropriate to the proof of the cause of action. Department of Environmental Resources v. Peggs Run Coal Co., 55 Pa. Commw. 312, 320, 423 A.2d 765, 769 (1980). "Reference to insurance coverage when the issue is negligence would be prejudicial" and impertinent, "and must be stricken." Berkebile v. Nationwide Ins. Co., 6 Pa. D. & C.3d 243, 249 (Somerset Co. 1977). Plaintiffs references to Defendant's insurance coverage are similarly immaterial and inappropriate and will be stricken. Motion to strike "was not limited to" language. In Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), the Pennsylvania Supreme Court held that the use of the language "otherwise failing to use due care and caution under the circumstances" enabled the plaintiff to amend the complaint to specify "the other ways in which [the defendant] was negligent in [that] case." Id. at 310, 461 A.2d at 602. The Court elaborated on this holding by noting that "[i]f [defendant] did not know how it `otherwise fail[ed] to use due care and caution under the circumstances,' it could have filed a preliminary objection in the nature of a request for a more specific pleading or it could have moved to strike that portion of [the plaintiff's] complaint." Id. at 311 n.3, 461 A.2d at 602 n.3. This precept in Connor has been applied to language of the "including but not limited to" type. Habig v. Spencer, No. 3089 Civil 1992 (Cumberland Co. January 26, 1993); Wiest v. L & B Poultry, 112 Dauphin Co. 144 (1992). In 8 accordance with the foregoing, the "was not limited to" language of Plaintiff's complaint will be stricken. Motion to strike reference to "unworkmanlike manner" of performance. The contention that construction work on a house was not performed in a reasonably workmanlike manner is common to litigation on the subject,24 and does not appear to the court to be susceptible to a challenge on grounds of an absence of specificity. The lack of generality of the term is suggested by the following language of the Superior Court: This action to recover the balance due on a contract for the installation of storm windows on defendant's premises is defended on the ground that plaintiff failed to perform the work in accordance with the contract. In more specifrc terms, the defense is that the work was not done in a good and workmanlike manner. Mort Co. v. Paul, 167 Pa. Super. 532, 533, 76 A.2d 445, 446 (1950) (emphasis added). Accordingly, Defendant's motion to strike in this regard will not be granted. Motion to strike references to unspecified violations of industry standards, industry practices and building codes. "The Commonwealth of Pennsylvania is a fact pleading state whereby the complaint must provide the defendant notice of the basis of the claim as well as a summary of the facts essential support that claim." Latniak v. Von Koch, 70 Pa. D. & C.4th 489, 494 (Lackawanna Co. 2004). To determine if a pleading meets Pennsylvania's specificity requirements, a court must ascertain whether the facts alleged are "sufficiently specific so as to enable [a] defendant to prepare [its] defense." Smith v. Wagner, 403 Pa. Super. 316, 319, 588 A.2d 1308, 1310 (1991) (citation omitted); see also In re The Barnes Foundation, 443 Pa. Super. 369, 381, 661 A.2d 889, 895 (1995). In a worker's compensation case, it has been held that an allegation that a defendant "operat[ed its] plant in violation of the Statutes of the Commonwealth of Pennsylvania and regulations of the Department of Labor and Industry 24 See, e.g., Edlerkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972). 9 i i pertaining to safety of employees thereon" was insufficiently specific to enable the defendant to prepare its defense. Cherneskie v. Bethlehem Steel Corp., 70 Pa. D. & C.2d 605, 612 (Philadelphia Co. 1974). In the present case, Plaintiffs' allegations that Defendant failed to comply with unspecified "industry standards and practices and ... applicable building codes" are similarly deficient. Based upon the foregoing, the following order will be entered: ORDER OF COURT AND NOW, this 21St day of June, 2007, upon consideration of Defendant's preliminary objections to Plaintiffs' amended complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows with respect to Plaintiffs' Amended Complaint: 1. Count 1 (contract claim of Plaintiff Custom Design Group, Inc., and contract claim "for the benefit of Plaintiff Heirloom Cabinetry of Pennsylvania, Inc.) is dismissed; 2. The demand for punitive damages is stricken; 3. The demand for attorney's fees is stricken; 4. References to Defendant's insurance coverage are stricken; 5. The words "was not limited to" are stricken; 6. Averments that Defendant failed to comply with "industry standards and practices and ... applicable building codes" will be deemed stricken without further order of court unless, within 20 days of the date of this order, a second amended complaint is filed which specifically identifies the same; 7. No other relief is granted with respect to Defendant's preliminary objections. 10 BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Thomas J. Nehilla, Esq. Jennifer Zimmerman, Esq. One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorneys for Plaintiffs W. Darren Powell, Esq. Corey J. Adamson, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17101 Attorneys for Defendants 11 M I Thomas J. Nehilla, Esquire Attorney I.D. No. 67326 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiff V. LAMARCO CONTRACTING, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-4482 Civil JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim 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 YOU 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 Bar Association 32 South Bedford Street Carlisle, PA 17013 ` • (717) 249-3166 646498.4 O AVISO USTED HA SIDE DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dial despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 1 1 Thomas J. Nehilla, Esquire Attorney I.D. No. 67326 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff HEIRLOOM CABINETRY OF IN THE COURT OF COMMON PLEAS PENNSYLVANIA, INC. CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. CIVIL ACTION - LAW NO. 06-4482 Civil LAMARCO CONTRACTING, INC. Defendant JURY TRIAL DEMANDED SECOND AMENDED COMPLAINT NOW COMES, Heirloom Cabinetry of Pennsylvania, Inc. by its attorneys, Rhoads & Sinon LLP, and hereby submits the within Second Amended Complaint against LaMarco Contracting, Inc., and avers as follows: 1. Heirloom Cabinetry of Pennsylvania, Inc. ("Heirloom") is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania having an address of RR 4 Box 390, Nelson Road, Mifflintown, Pennsylvania 17059. Heirloom's principal business is constructing and installing wood cabinetry as well as constructing wood furniture. 2. LaMarco Contracting, Inc. ("LaMarco" or "Defendant"), upon information and belief, is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania and has a registered address of 130 Hillymede Circle, Harrisburg, PA 17111. LaMarco is an HVAC contractor. 3. Custer Homes, Inc. ("Custer Homes") and Custer Design Group, Inc. ("Custer Design") (collectively referred to as "Custer") are Pennsylvania business corporations incorporated under the laws of the Commonwealth of Pennsylvania having an address of 2805 Old Post Road, Harrisburg, Pennsylvania 17110. Custer's principal business is serving as a general contractor constructing residential homes. 4. Steven Neiman, owner of property located at 3 Springdale Way, Mechanicsburg, Cumberland County, Pennsylvania ("Neiman"), contracted with Custer, as General Contractor, for the construction of a residence on his property located at 3 Springdale Way ("Neiman Residence"). 5. Custer Design entered into a Supplemental Trade Contractor Agreement on or about October 2003 with Heirloom ("Heirloom Subcontract") for the construction and installation of cherry and pear wood cabinetry and paneling in dining room, family room, office, master bedroom and master bathroom in the Neiman Residence ("Heirloom Cabinetry"). Heirloom also constructed several pieces of wood furniture for the Neiman Residence, including, but not limited to, an entertainment center, a bed, a desk, and a dining room suite ("Heirloom Furniture"). A true and correct copy of the Heirloom Subcontract is attached hereto as Exhibit "A" and incorporated herein by reference. 6. Custer Homes, through purchase orders, subcontracted with LaMarco for the installation of the HVAC system in the Neiman Residence and the purchase orders were subject to Supplemental Trade Contractor Agreements (collectively referred to as "LaMarco Subcontract"). A true and correct copy of the LaMarco Subcontract is attached hereto as Exhibit "B" and incorporated herein by reference. 7. LaMarco installed an HVAC system in the Neiman Residence on or around October 2003, by suspending part of the system above the ceiling in the dining room. 8. LaMarco owed a general duty to install the HVAC system in the Neiman Residence in a workmanlike manner and in accordance with Sections M1411.3, M1411.3.1 and M1141.3.2 of the International Residential Code® for One-And Two- Family Dwellings, 2003 Edition and Section 307.2 and 307.2.1-307.2.4 of the 2003 International Mechanical Code which require the installation of an auxiliary drain system where condensation may occur and where damage may occur from overflow from the drain pan. 9. During the initial installation of the HVAC system, LaMarco failed to properly install the HVAC system in the Neiman Residence. The improper installation included the failure to install an appropriate overflow condensation pan or drain for the humidifier which was suspended above the dining room ceiling. 10. On or around October 2003, and as a direct result of LaMarco's failure to install the appropriate condensation pan, water dripped and accumulated directly on the ceiling frame above the dining room which caused water marks on the ceiling and water to leak through the ceiling and stream down the sides of the walls onto the dining room floor. 11. Additionally, water dripped down the inside of the dining room walls and accumulated under the hardwood floors throughout the house which caused the hardwood floor to buckle and cup and the cabinetry in the family room, the master bedroom and bathroom as well as the dining room table and office desktop to crack. 12. Within a short period of time after the above-mentioned cupping and cracking were first noticed, water started dripping from the dining room ceiling. 13. At that time, the wood flooring subcontractor, Restorations Unlimited, tested the humidity levels throughout the entire house, and specifically where the Heirloom Cabinetry and hardwood flooring were located in the dining room, family room, office, master bedroom and master bathroom. 14. After the water leakage occurred, the humidity levels in the Neiman Residence were, at times, extremely high, and at times, below normal. The humidity levels were at such an abnormal level throughout the house that it damaged the hardwood floors and permanently damaged the Heirloom wood used to construct the Heirloom Cabinetry and the Heirloom Furniture. 15. The humidity levels were abnormal for at least three to four weeks because it took a significant amount of time to remove the excess humidity from the air and the wood flooring after the dining room leaks. 16. At no time did Custer, nor any of its officers, directors, agents or employees, direct LaMarco to alter or maintain the level of moisture in any manner in the Neiman Residence. 10 17. Due to the abnormal humidity levels, the damage to the maple hardwood floor and the Heirloom wood occurred throughout the entire house, not just in the dining room where the water problems occurred. 18. The cabinetry and furniture installed and constructed by Heirloom permanently cracked and suffered water damage as a result of the abnormal humidity levels and the water leakage that occurred due to LaMarco's improper installation of the HVAC system. 19. Due to the damage to the Heirloom Cabinetry and Heirloom Furniture, Heirloom had to completely replace the bathroom, bedroom and office cabinetry at a total cost to Heirloom of $34,558.00. 20. In addition to the wood damage, as a direct result of the water leakage and the abnormal humidity levels, the drywall, which was installed by Custer, cracked in the areas of the house where the Heirloom Cabinetry was located. 21. Custer replaced much of the damaged drywall in the rooms where the Heirloom Cabinetry was located due to significant cracking. Custer also repainted the affected areas, replaced a large portion of the laundry room floor, and replaced the dining room ceiling which were all damaged as a result of the water leaks. 22. The entire heating and air conditioning system, installed by LaMarco, including the humidifier system, is being reengineered and rebuilt by a new HVAC subcontractor because the system never worked properly due to LaMarco's improper installation. 23. In addition, the new HVAC subcontractor installed a pipe to drain the system, which LaMarco failed to install. 24. Heirloom completed the replacement of the family room cabinetry in June 2005. 25. There have not been any problems with cracking in the furniture and cabinetry since it was replaced by Heirloom, after the humidity and water problems were resolved. 26. Based upon the fact that there have not been any problems with cracking in the furniture and cabinetry since it was replaced by Heirloom, it now has become evident that the damages Heirloom sustained are a result of LaMarco's failure to exercise reasonable care in installing the HVAC system. COUNT I - NEGLIGENCE 27. The foregoing paragraphs are incorporated herein by reference as if set forth here at length. 28. LaMarco owed a duty to construct the Neiman Residence in accordance with Sections M1411.3, M1411.3.1 and M1141.3.2 of the International Residential Code® for One-And Two-Family Dwellings, 2003 Edition and Section 307.2 of the 2003 International Mechanical Code which require the installation of an auxiliary drain system where condensation may occur and where damage may occur from overflow from the drain pan. 29. LaMarco's failure to properly install the HVAC system in accordance with the Sections M1411.3, M1411.3.1 and M1141.3.2 of the International Residential Code& for One-And Two-Family Dwellings, 2003 Edition and Section 307.2 of the 2003 International Mechanical Code and in a manner that the system did not leak was a breach of these duties and directly resulted in damages to Heirloom as alleged herein. WHEREFORE, Plaintiff, Heirloom Cabinetry of Pennsylvania, Inc. respectfully requests this Court to enter judgment in favor of Plaintiff and against Defendant LaMarco Contracting, Inc., in the amount of $34,558.00. Respectfully submitted, RHOADS & SINON LLP DATED: July 11 '2007 By: omas J. N lla PA I.D. No. 67326 Jennifer Zimmerman PA I.D. No. 89459 P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 07,'10'07 11:57 •FAI 71%376790 RHOADS SiNON W190Z nRLELCA ILQ*N t"zradore Wagner, Jr,, Presidcnt of lI;ir9(x)xn Cabinetry of pm=ylLanza, Iac., deposcs and says, st&jcct to tht mmitics of IS Pa_ C.S. § 4904 relating to unsworn Wsificati= to autfwritics? the:l he is the Pmaident of Heirloom Cabiuetry of Pe-.Y,sylvznia, Inc., TO= he makes This ve nfieatio:n. by Sts authority, and chat the facts set famh is the Complaint am true acid cormot to the best of his/her knowledge, information aind belief. D j- tIM&..v E. 'Wagner, fr., Pre Sgent Hcirlt3m?. CEI) umy of Pcansylva;tia, Id WdZO:Z0 ZOOZ OT 'tof E60Z9E1VztZ : 'ON 9NOHd AN13NIGUO WOOINI3H : WObd Exhibit A 581717.1 i? Uillat to tw L-UN Custer Design Group, Inc., SLF7's.E'v?*rre'.1.' i.+pL CONTI ACrnR AGIT-3-F-VEWT Tr a& Contruxor w rt pry; do a cnx' Certzfi= of Tnrra awe, norr.'s&, Custer D IcSj t Cko;xp, Lacs ar tho Cenifm* Hofer, 7 -Ur Ccrt*ato nrust he on.! -,,tor to re are offers; P*ment. .411 irrrmitet ,r z t be irnood ro Custer Design_a2lip Ina., 60 Old Po: r Ran+d ,faire 200. Harrsrbu% PA 17110. nc parti.= to tbia Caostcuctiou Ag==mt: axe S'cr, Draiz = Inc., " Buildcz," :gad -'dace r-On actor." This Agrr-rrn .t nllall govazo. 4 labor perfozmed and materiyl furnished b7 Trade Contractor, for Butldex until either pang revQkc$ it by delivers; wriC nt'rcice of such revocation to the otter party. If either pasty revokes rlus at;recrn=-t, zt i;hali be null and roid for all contracts ==td into rheraf ez. Trade Contramt; ,Fees: Tn petfotrz all wank jC a woslttnarjjjx ZW=4 r, aald To de ivez materials which R= now aid in accocdaace with the planes and spadfications deli4e=d to Trade Contractor. Upon rcccivlr:g notiec from, F.uilder that ":'ride Contractor has perfor%ned iaiLlior, impxopei; or irssouttd labor, or d:1.celed materials at vuiance w!di,whicb is spmcified, :;ride Contractor wall, within twerxrl-&rix (24) lZouzs, proceed to ramove sueix'Worts or a=mdals and ts:rice good all othcr,work ox materials damaged thereby. 7Y.-Ad.e Contractor slurp aoc subcout = say parr of the I,r-ark V ithout the pziot written conseac of Bladder, and such consent sham not release Trade Contractor from any resporieibiuty ax liability is connactio-a -ritb. the subcontract It is mutua117 understood and agreed between Budder Lad Trade Contractor that TLadc Contxmctat is ar. independent contractor, that at no tun, arc nar of Txa.dc Coa;ractor'a cmpA4ecs in the oY of ]3uildrx, 4or is Builder xcaponaible to sop of Trace Contractor's easploycGs fox the paynaca.t of rheit images; rhat Track C(mtractor alone is se.?sponsIlc foxtc?a? tapJ rare with till tip:-licsbic statutes, ordinances, std =gulationa CQnCC=ing uw cmployces Social SC:culitj, W0Tknsar'a Compenaaticn, and aU ,afets coaditiors =d record keaping =iuircmarxt, under the Occupadortzl, Saferv grad THea,ith Act of 1970 and ;unendments thereto, Stace and Federal tlzation_ and liccwing. Trade Contractor shalt maintain, at Tai awn expense, such insurance a,- will protect l.im from workmen', compensation acts and frcm nrhez dai= and aamzacs for personal injury, including death, in tha rcar:irium armouztt of $500,000.00, crhi.cis may arise fr.ow operations ttaricr th::$ C-,)ntmc,- wherhex svch nperataons be by 6c Trade Contr{ctcr or by any other made cont_ac:ors or his m?loycz by ;tttvanr direcdy or indirectly eratpk-,7rd bz cirher of dbe=- Trade n ra.ccor a=by agrcea w ind=gz ij- and :told ham^less Balder flour aay C'-rLL=.-, ?sca a;az T,d W8TT :0T 500Z b0 'daS 26OZ907ZTZ : 'ON dNOHd rMmc Q4 . Ni3N I HbO W00-R1I 9H : WOdJ wi•cb. respect to the ma.tte=s oudined in the parai rzph. A cr 1py of Trade Contractor's Cesti;5c2te of Ins-r-cc mW% be approved in. -QV, ;dng bl' Ctuoas Dcaign Group, Inc. at 1ca.5t tkree (3) days pzioz to commencement of wotit by Trade Contractor. Tradc Contractor agrees to pay for all watcdals and Z .Libor supplied by Trade Contractor fox the job Whca eum &nd to hold Builder and the owner hlrmlesi from any liens axising out of labor, materials, or subcontracts fuxnia ied by Trade Contract= Budder sh4 have the sight to require: Trade Contractor ro provide rcl=icz by all person9 supplpiag labor, rs t?sia]-s, or icervkes to Trade Contractor for the job herein described and to withhold final.1myzsnent until such releases are supplied. Trade Contractor acknowledges that it is an iudepexldesnt cobtractor and agrees to paF all coutzibutiot s zcquised by law qs coznttacc which if unpaid could be an encumbnace upon the real p=5pe=7 where the work is performed. 4. Trade C:ontractot agrees to permit other Trade Conttactozs teasonable opportunity for Ezozage of materials and exccurion of their Tyotk;, Ln;f sl2all pxopezly coordinate its work with theirs, If nary part of roe work to be performed by Trade Contractor depends, for proper wmcatioon, on the work of other tre.cle contracrors oz Bvildet or the owaq Trade Contractox shall immediately report conflicts, de ectl+ or uroja3ions that resndcr such other work untimely or unsuitable :or eceantiou of its work I'rtoceedkng with its work without such report of defecui is =d acceptance by Tradc Contractor of the work of otl cxs that prccrdcm:. or, is perfox=d simvltnaeously with its work, Should Tradc Contractor darner wo-ek of other trade contractors or Builder, Trade Contractor shall pay the cost of rep%iring such dz mage and hold Builder and owner harrnlescs, Trade Contractor sgrees that he will not hold Builder tespomiblc for lose or, ckLmage or injury caused by another tradc con#%ctoz and further agrcco to took to said trade contractor for the =c=r=y from it of an7 such damage or injury. Trade Contractor shstll. ptoeuze and ply etl tlece.•aaary permits recquired for paiorrnaace by Tsadc Contractor uttdct this g=emeat: which arc obtairablc by 't'rade Contractor and will protect uafir fished wont and ail materials For Trade Contzact0ea use, or iacidcntal tlx =cw, against *- mt,Y bind of damage, hicluding dwrnagc by zhc clezacrzts, e=rpt damage by five„ until completion of the building. 6. Tradc Contractor agr-cm to place debtis in Builder's durapstcz, unless instructed otherwise, rubbish and waste materials =rated 'by it.5 opeTatioa as the works progresses, in order to maintain a clean, safe condition and, upon completion of im ,Rork, to remove all tools, egtugrnctit, materials azd was te- U laddcr? axe to be lowered and/ox safely stored at the and of each day. Any rubbish or waste Materials not cleaned up and pxopcrty disposed of by Trade Contnctnz will result in a backcharge. i. *rra.de Contractor hereby unconditionally guarantees au his work, Iabot attd materials to Buildex and the owner nz pu_-chaser for nccpm:iod o(Builder's waranrr to the a,z,ner of p-atchascr. revised -= Zd WdZT:.OT S00Z b0 -daS £60Z9?i?LTL : 'ON BNOHd Ac2I3NI3d0 W007c1I3H : WOZ?J 9. Builder agrees to aupcrrise the work azi3 coorc3isi W the arork of other aupplicrs and =dc e=nactors to r =bLc'Traac Contractor to pcxfcmn its work timely and efficiently, and 13u4det agrees that it will make the pmmacnta required hereunder p romptty wheal, d+sr. 9. Builder agrees to pay promptly Trade Coatractor in his perfosasaacc of his work and ma later than 30 dmp within submissioa oFany, invoice, coaditicmed upon vet+.£icazion by ZzBdar that the woi< bas been .atisfactc,rily performed. If pcpament is not rcccivod %irhin dais period and Trade Contractox 63ea zot receive notification justif ing the dclsiy is payment; Trade Contractot may ter=zmatc bait Agteement upon seven M tiara smitten notice of hi intmt to do sea. ?f Trade f oxttxa.etor does ao tctmiuatc kolkm-iog said notice, he sha11 be =tit3ad to receive the reasonable Faluc of e,Il msterialo and labor incorporated in tlsc job co the time of zam 1nation and die profit Trade Contractor wood norriially expect to have been made had the contract been fully and properly pcrforxumdr 10. If the Trade Contractoz sh-Z became bamitrupt; make assignment for the benefit of creditors, or od=rwi9a become unable to carry out the work or if the Tradc Contractor, without proper cause, rcrao e:% 1"mm the w ark i°or a period in excess of forty-cighc (48) hou-s, then the Builder =y, by notice in Writing or verbal to rbe Trade Contractor, terrain= this Agmement if ;ac: = is -tot taken to cure said default witlziai twenty-fout (24) hours after Builde es ccia=unication of such nonce. If Trade Contractors shall in any sztaaaer uadt4y drJ iy or othcxwisc acglect to fiajsb kris responsibilities, without bona fide cause, vrithln the tiazo hcscinbcforc provided, or otherwise breach any provision of this Agrersri,=% Bolder may, 'o wristrri or verbal notice as hexciubefore provided, require the Mmclm Contractor ro pmceed with the work- within rwcaty-four (2-?) hourx after corveyaace oil such notice of correct any such breach of this Agree r. witbim twecry-four (24) hour period and upon failure to do so, the Builder SkSSL rhea hAve tht 4g ht w teraiitiate this Agreement and co employ at7 other Tiede Contractor to continue and complete the said work according to said plo= and specifica,dons, or any altararions or additions as hcreinbefate provickd, 2nd shall also 1ssve the right to murhoase Ruch, zeplacemetit trade contractor to use any materials c= psrpatty of the Trade Contractor upon the ground. If the expense to complete the contasu:t, in adckon to any payments made of the Trade Contractor horeuAder, shall oacavi die origins subcontrnct price plug costs for uiy additional work, Trade Contmcrox shall be liable to the Bui]dcr for, such eeccss stuns. 11. In the event Trade Conma=% discoTwe any iaconsistcncies or c=m in bis work with the Builder or otbet trade coattctoro in the pleas and apecific- rigq;, lee IhAz, before performing said work, prosnprly bring Stich tzsatt= to the attention of the Builder,who shall them Sme Trade Contractor w itten lostrsctions or directions restive so raid iaoomsistsaer o: error. No era ms, for ac.ditiomitl compensation will be considexed and 'T'rade Contractor shall be entitled to no such additional sums, unless lie shall have, if at 211 poasiblc, brought the inec,nsistency or c.LS'or to the 1?vZda's attention prior to peribmiug app work rhercon. 12. T-his Agreemenr and cveq cornvenant and prov:sion herein -,hall bid, apply .o, and run in favor aE the parrim. their suc=som in inteze3z arid their legal rcpresCr tati;vC5. rtwged. aln3 _LA J?dZ Z :OT s00z b0 ' daS £60292t72-1: L : ' ON SNCHd A61 SN 13ti0 W007iL 13H : W062 r 4. 13, In consw4ug tbis Agz =cart the Builder aad Tzade C'omtr, =z tap be Mote th! r. one persaa; that if the coatest so raquiccs, the singular prazzovt Shull be ts~k4'C to mein 2nd inci„de the pluL-4 the maxculinc, &C f'cwjnit c, and the n=lcr, and that gazaezallp all gtam=tieal chatages sh%n be ttadr, ass=-ad, Grad implied to make the provisions hczeof apply equaay to corpormi= and to individuals. Trick C:cn=croes Aci&mss: j? 1),r- A.4 x7va ?R?/ BD.r 3pD NU40N' Rf46 MZP, -L11Y7a wAv, AA /7D,5? Business Phone:?7/-1) 4%- B09/ tmcrgoacp Phranc: ?l ?J L? ?? ? ?Q?g ??,,,1,??I?, Fa?? ?l 7??0 -all ?? T:mLde Contractor's Federal LU #' Iacntpc?ratc3? ?ycs ?uo M5M/,00/7? CAB/N?_ 00C 64) DYC, Printed Trade Contttacmr Company Name 7HED40,066 Aff • l(IA6-At(ffK P%inted Namc of 7cado Cont=wx Aeccpted and Approve Et: /0 /Vzt. Sigcow:ee of'T=de Co actor Iaa CUT= Dcsiga Group, Inc. Signatntc of Builder $uildcz's Address: 2805 Old Powt IL3md, Suite 200 i-lazrsburg, PA 17110 Business Phone ( i 17) 212-6027 xvtsed W03 t7d WdRT:OT S00Z 60 'daS £6OZ9£17LT) : 'ON SNOHd AN 13N I RIO W001d I SH : Xa -? Exhibit B !h Homes, Inc. _ s old Post Road, Suite 200 Harrisburg, PA 17110 ORDER DATE: 02121/2003 VENDOR: JOB ADDRESS: JOB NUMBER: Lamarco Contracting Inc. Sterling Glen SGO05 130 Hillymede Circle at Rt 114 & Woods Road Harrisburg PA 17111 Mechanicsburg PA 17050 Project Manager Project Manager Phone: Ted Shaffer 648-5634 Page 1 PLEASE SUPPLY THE FOLLOWING : ITEM ITEM DESCRIPTION LENGTHS QUANTITY UNIT UNIT PRICE TOTAL PRICE 340 HEAVING `*** 0020 HVAC as per quote dated Aug 7, 2002 1.00 Lsum 9,495.00 9,495.00 Roughin - $5,697 Equipment Set - $2,849 Finish - $949 - Provide the Following: 95,OMTU Furnace w.90+ efficiency 5 tons AC w/10 SEER rating, gas piping to W/H, KAchen Range, Lenai Cr& ?(?sS F. P Scuttle humidifier, Electrostaic Air Cleaner, programmable T-Stats. Furnace to be installed in the attic area. A seperate WO has been issued to vent the downdraft range Net Order Tax TOTAL ORDER IMPORTANT NOTICE - PLEASE READ pay 'Diuvu 3116 slulo3 *This P.O. is subject to the terms of the Custer Homes "Trade Partner Agreement" tALA -1,1LE *Payment shall be made on P.O. amount or vendor Invoice, whichever is less. *Return Quality Inspection Report with Invoice. V d ()ra w *Do not begin work unless these terms and conditions are acceptable jg" inv. (a V-0& *******CHI will not honor additional charges NOT pre-authorized in writing by the Project Manager******* 9v1a• hcG Authorized Signature: 9,495.00 0.00 9,495.00 (pr DOO.Jo 3?'f ?Sr vv l,boo-oo Custer Homes, Inc. Date DIRECTIONS: ! J O ! i n , 1-7 IMPORTANT: PURCHASE ORDER NUMBER MUST APPEAR ON ALL INVOICES • VU! 4tie L 7M-t 1G. Uf 02/ 022 / 2000 1111,: 21; f1 foo f174tf LAMAKUJ F.AI1N(a & AC CJSTER HOMES It-tc CUsVit HOMES, INC. sl yTnEmENTAL Svecwrucr Ao1tmwc The parties to this Couseuction Agreamat are Custer Homes, Lac., "Baildw," and ???T,rar . ! arc . , ..Subcontractor." This Agreamert shall govern all labor performed and matcrial furnished by Subcontractor for bullsi=' uatil either party reaolreo it by delivering written notice Of Such revocation to the other party If either party revokes this agreement, it shall be null and void for all contracts entered into thereafter. Subcontractor sgttea' To perform all work in a workmanlike charmer; and To deliver materials which are new sad in accordance with the plans and specifications delivered to Subcontractor. Upon receiving notice from Builder that Subcontractor has performed inferior, improper, or unsound labor or delivered materials at variance with which is specified, Subcontractor will, within twenty. four (24) hours, proceed to remove such work or onlerials and make good all other park or materials damaged thereby. Subcontractor shall not subcontract any part of the work without the prior written consent of Budder, and such consent shag not release Subcontractor from any responsibility. or liability in connection with the subcontract 2. It is un UaDy understood and agreed between Builder and Subcontractor drat Subcontractor is an independent contractor, that at mo time are any of Subcontractor's employees in the employ of Builder, nor i9 Builder responsible to any of Subcontractor's employees for the payment of their wages; that Subcontractor alone is responsible for compliance with all applicable Rat nes, ordinances, and regulations eoaca Tdng bit employee's Social Seauity, Workman's Compensation, sad all safety conditions and record keeping requirements under the Occupational, SafMy and Health Act of 1970 and ameadnoem therato, State and Federal taxation, and licensing. Subcontractor shall makUiu, at his own expease, such insurance as will protect biro from worirmea's compensation acts and from other claims and damages for personal injury, including destht in the. minimum Amount of $300,000.00, which may arim from Operations under this contract, whether such operadorfs be by the Subc motor or by any other subcontractors cc his employer by wore directly or indirectly employed by either of them Subcontractor hereby agrees to inderrutify and hold harmless Builder from any claims with respect to the matters outline,d in the paragraph. A copy of Subcontractor's Certificate of Insurance must be approved iA writing by Custer Homes, Inc at least tUma (3) days prior to commencement of work by Subcontractor PAGE 04 PAGE eT J? 41 1z5/ GUI i 7 J`1 1 L.o f sy rl eta rr.+zr 71„_.4-029 L.AMAP,CC 1-EATING & AC CUSTER HOMES INC: Subcontractor egrets to pay for all materials and all labor supplied by Subcontractor fbr the job when due and to bald Binder and the owner harud en from any Sens arising out of labor, meArfalk or subcontracts firm sbed by Subcontractor. Builder shall have the right to require Subcontractor to provide releases by ail persons supplying labor, materials, or servicss to Subcontractor for the job herein described mad to withhold final payment until such releases are supplied. Subcontractor acknowledges that h is ae independent oontractor and agrees to pay all c ontrilmdotts required by law or contract which if unpaid could be as amurnbrance upon the real property where the work is perr'bcmed. • 4. Subcartractor agrees to permit other Subeontrectors reasonable opporamity for storage of materials and execution of their work and shall properly coordinate its work with theirs. If any part ofthe work to be performed by Subcontractor depends, for proper execution, on the work of other subcontractors or Builder or the owner, Subcontractor shall immedsately report conflicts, defects or omissions dent render such other work untimely or.unsui*WAe for execution of its work. Proceeding with its work without such report of defects is and acceptcm by Subcontractor of the work of others that precedes, or is perfbrmed si uultancously wttk its work. Should Su=nuvtor damage work olother subcontractors or Builder, Subcontractor shall pay the cost of repairing suet damage and hold Builder and owner hartaless. Subcontractor agrees that he will not hold Budder responsible for lose: or damage or injury eat, ad by another subcontractor acrid further agrees to look to said subcontractor for the recovery from it of any such damage or injury. Subcontractor shall procure and pay all necessary permits required for performance by Subcontractor under this agreement which are obbdnkla by Subcontractor and wit( protect unfinished work and all matarials fur Subcoutractor's use, or iacidental thereto, sgaim?j overy idnd of damage, inlaluding damage by the elements, except damage by fire, urn completion of the building. 6. Subcontractor agrees to remove ]Tons the site, unless instructed otherwise, rubbish and waste materials created by its operation u the work progresses, in order to maintain a clean, safe condition and, upon completion of its work, to remove all tools, equipanetst, materials and waste. All ladders are to be lowered and/or safely stored at the cud of each day. Any rubbish or waste materials not cleaned up and properly disposed of by Subcontractor wM result in a backcharge. PA(z 03 PAGE 0?, Subccau ctor hereby uncoaditiomlly guxrarntees all his worker labor and materials to Builder and the owner or purchaser for the period of Buildar's warranty to the owner or purchaser. 71 T ',029 CUSTER Ha.E.S INi . 8. Builder agrees to supervise the work and coordi=e the worse of other suppliers and subcontractors to enable Subcontractor to perform its work timely and efficiently, and Builder agrees that it will make the payments recl*ed hereunder promptly whin due. Builder agrees to pay promptly Subcontractor in his perfarmance of his work and no laic then 30 days within submission of any invoice, conditioned upon verification by Builder that the work has been satisfactorily performed. If payment is not received within this period and Subcontractor does not receive notification justifying the delay in payment, Subcontractor may terminate this Agreement upon sever (7) days written notice ofbis Wa a to do so. If Subcontractor doss so terminate following said notice, he shall be entitled to receive tho reasonable value of all materials and labor incorporated in the job to the time oftecmiaation and the profit Subcontractor would normally expect to have been. made had the contract been fully =4 properly perfotmed. 10. If the Subcontractor deli become baakwM- make assignment for the benefit of creditors, or otherwise become unable to cant' out the work or if the Subcantrsccor, without proper cause, reaneves from tho work for a period in excess of forty-eight (48) hours, then the Builder may, by notice in writing or verbal to the Subcontractor, terminate this Agreement if action is not taken to cure said default wither twenty-bar (24) Flours after Builder's co==s*iccd,= of such notice. If Subcoturactors shall in say marmar unduly delay or otherwise neglect to finish his responmbitities, without booms Ede cause, within the time bereinbefore provided, or otherwise breach any provision of this Agreement, Builder may, by written or verbal notice as bereinbefore provid4 require the Subcontractor to proceed with the work wctldo twenty-four (24) hours after coavvyaace of such notice oT correct any such breach of this Agreement within twenty-four (Z4) bour period and upon failure to do so, the Builder shall then have the right to terminate this Amt and to employ any other Subcontractor to continue and complete the said work arcoording to said plans and speaf eatioas, or any alterations.or additions as hac'einbafore provided, and shalt also have the right to authorize such replacement subcontractor to use any materials or property of the Subcontractor upon the ground If the expel se to complete the contrut, im addition to any payments made of the Subcontractor bereunder, shall exceed the odoitnd subcontract price phis costs for any additional work, Subcontractor shall be Bable to the Builder.for 3uob excess anns. 11. In the event Subcontractor discovers " inconsistencies or errors in his work with the Budder or other subcos wactors in the plans and spec6cssions, he shall, before performing said work, promptly bring such matters to the attention of the Builder wbo shall then give Subcontractor written instructiow or directions relative to said mcousiAcacy or aror. No daimt for additional compcnaation will be eoasidered and Subcontractor shall be entitled to no such additional sums, unless be than PAGE 0n. • _ _ _ . _ . tee-' • ra ?w i ?...r? ? Li ? d e-v f-titX !7. -a 9?r'33:';l?(1?J 13: 19 717, 9?9 04TER, RMS IW- FAGE have, if at all pomble, brought the inconsistency or error to the Builder's attention prior to performing any work thereon. 121. This Agreement and every conve mt and provision herein simll bind, apply to, and run in -favor of the parties, their success= in interest and their legal represemtatives. 13. In construing this Agreement, the Builder and Subcontractor may be more than one person; that if the context so requires, the singular pronoun shall be taken to mean and inolude the plural, the masculine, the feminine, and the neuter, and that generally all grammadcal change shall be made, assumed, and implied to make the provisions hereof apply equally to corporations sod to individuals, 1'4MA240 Subcontractor Subcontractor's Federal ID Subcontractor's Address: Incorpowed*7 yes ?no C Business Phone: 6-66-y`-l / ? F.tzzergency P>?otic: Sim :ZS"6 ? ?J/` 7oD/ Accepted and approved Z---Z;-}goo Custer /Homes, Inc. -j----milder Builder's Address: 1309 Laurel Point Circle Harrisburg, FA 17110 Business Phone: (?17j 232-6027 0 Custer Homes, Inc. SUPPLEMENTAL. TRADE CONTRACTOR AGREEMENT Trade Contractor must provide a current Certficate of Insurance, naming Custer Homes, Inc., as the Certificate Holder. This Certificate must be on file prior to release of fzrstpayment. All Invoices must he issued to Custer Homes, Inc., 2805 Old Post Road Suite 200, Harrirbur& PA 17110. The parties to this Construction Agreement are Custer Homes, Inc., "Builder," and LaMarco Heating and Cooling , "Trade Contractor." This Agreement shall govern all labor performed and material furnished by Trade Contractor for Builder until either party revokes it by delivering written notice of such revocation to the other party. If either party revokes this agreement, it shall be null and void for all contracts entered into thereafter. Trade Contractor agrees: To perform all work in a workmanlike manner, and To deliver materials which are new and in accordance with the plans and . specifications delivered to Trade Contractor. Upon receiving notice from Builder that Trade Contractor has performed inferior, improper, or unsound labor or delivered materials at variance with which is specified, Trade Contractor will, within twenty-four (24) hours, proceed to remove such work or materials and make good all other work or materials damaged thereby. Trade Contractor shall not subcontract any part of the work without the prior written consent of Builder, and such consent shall not release Trade Contractor from any responsibility or liability in connection with the subcontract 2. It is mutually understood and agreed between Builder and Trade Contractor that Trade Contractor is an independent contractor; that at no time are any of Trade Contractor's employees in the employ of Builder, nor is Builder responsible to any of Trade Contractor's employees for the payment of their wages; that Trade Contractor alone is responsible for compliance with all applicable statutes, ordinances, and regulations concerning his employee's Social Security, Workman's Compensation, and all safety conditions and record keeping requirements under the Occupational, Safety and Health Act of 1970 and amendments thereto, State and Federal taxation, and licensing. Trade Contractor shall maintain, at his own expense, such insurance as will protect him from workmen's compensation acts and from other claims and damages for personal injury, including death, in the minimum amount of $500,000.00, which may arise from operations under this contract, whether such operations be by the Trade Contractor or by any, other trade contractors or his employer by anyone directly or indirectly employed by either of them Trade Contractor hereby agrees to indemnify and hold harmless Builder from any claims with respect to the matters outlined in the paragraph. A copy of Trade Contractor's revised 4103 w Certificate of Insurance must be approved in writing by Custer Homes, Inc. at least three (3) days prior to commencement of work by Trade Contractor. 3. Trade Contractor agrees to pay for all materials and all labor supplied by Trade . Contractor for the job when due and to hold Builder and the owner harmless from any liens arising out of labor, materials, or subcontracts furnished by Trade Contractor. Builder shall have the right to require Trade Contractor to provide releases by all persons supplying labor, materials, or services to Trade Contractor for the job herein described and to withhold final payment until such releases are supplied. Trade Contractor acknowledges that it is an independent contractor and agrees to pay all contributions required by law or contract which if unpaid could be an encumbrance upon the real property where the work is performed. 4. Trade Contractor agrees to permit other Trade Contractors reasonable opportunity for storage of materials and execution of their work and shall properly coordinate its work with theirs. If any part of the work to be performed by Trade Contractor depends, for proper execution, on the work of other trade contractors or Builder or the owner, Trade Contractor shall immediately report conflicts, defects or omissions that render such other work untimely or unsuitable for execution of its work. Proceeding with its work without such report of defects is and acceptance by Trade Contractor of the work of others that precedes, or is performed simultaneously with, its work. Should Trade Contractor damage work of other trade contractors or Builder, Trade Contractor shall pay the cost of repairing such damage and hold Builder and owner harmless. Trade Contractor agrees that he will not hold Builder responsible for loss or damage or injury caused by another trade contractor and further agrees to look to said trade contractor for the recovery from it of any such damage or injury. 5. Trade Contractor shall procure and pay all necessary permits required for performance by Trade Contractor under this agreement which are obtainable by Trade Contractor and will protect unfinished work and all materials for Trade Contractor's use, or incidental thereto, against every kind of damage, including damage by the elements, except damage by fire, until completion of the building. 6. Trade Contractor agrees to place debris in Builder's dumpster, unless instructed otherwise, rubbish and waste materials created by its operation as the work progresses, in order to maintain a clean, safe condition and, upon completion of its work, to remove all tools, equipment, materials and waste. All ladders are to be lowered and/or safely stored at the end of each day. Any rubbish or waste materials not cleaned up and properly disposed of by Trade Contractor will result in a backcharge. 7. Trade Contractor hereby unconditionally guarantees all his work, labor and materials to Builder and the owner or purchaser for the period of Builder's warranty to the owner or purchaser. Builder agrees to supervise the work and coordinate the work of other suppliers and trade contractors to enable Trade Contractor to perform its work timely and revised 4/03 efficiently, and Builder agrees that it will make the payments required hereunder promptly when due. S 9. Builder agrees to pay promptly Trade Contractor in his performance of his work and no later than 30 daps within submission of any invoice, conditioned upon verification by Builder that the work has been satisfactorily performed. If payment is not received within this period and Trade Contractor does not receive notification justifying the delay in payment, Trade Contractor may terminate this Agreement upon seven (7) days written notice of his intent to do so. If Trade Contractor does so terminate following said notice, he shall be entitled to receive the reasonable value of all materials and labor incorporated in the job to the time of termination and the profit Trade Contractor would normally expect to have been made had the contract been fully and properly performed. 10. If the Trade Contractor shall become bankrupt, make assignment for the benefit of creditors, or otherwise become unable to carry out the work or if the Trade Contractor, without proper cause, removes from the work for a period in excess of forty-eight (48) hours, then the Builder may, by notice in writing or verbal to the Trade Contractor, terminate this Agreement if action is not taken to cure said default within twenty-four (24) hours after Builder's communication of such notice. If Trade Contractors shall in any manner unduly delay or otherwise neglect to finish his responsibilities, without bona fide cause, within the time hereinbefore provided, or otherwise breach any provision of this Agreement, Builder may, by written or verbal notice as hereinbefore provided, require the Trade Contractor to proceed with the work within twenty-four (24) hours after conveyance of such notice or correct any • such breach of this Agreement within twenty-four (24) hour period and upon failure to do so, the Builder shall then have the right to terminate this Agreement and to employ any other Trade Contractor to continue and complete the said work according to said plans and specifications, or any alterations or additions as hereinbefore provided, and shall also have the right to authorize such replacement trade contractor to use any materials or property of the Trade Contractor upon the ground. If the expense to complete the contract, in addition to any payments made of the Trade Contractor hereunder, shall exceed the original subcontract price plus costs for any additional work, Trade Contractor shall be liable to the Builder for such excess sums. 11. In the event Trade Contractor discovers any inconsistencies or errors in his work with the Builder or other trade contractors in the plans and specifications, he shall, before performing said work, promptly bring such matters-to the attention of the Builder who shall then give Trade Contractor written instructions or directions relative to said inconsistency or error. No claims for additional compensation will be considered and Trade Contractor shall be entitled to no such additional sums, unless he shall have, if at all possible, brought the inconsistency or error to the Builder's attention prior to performing any work thereon. 12. This Agreement and every convenant and provision herein shall bind, apply to, and run in favor of the parties, their successors in interest and their legal representatives. • 13. In construing this Agreement, the Builder and Trade Contractor may be more than one person; that if the context so requires, the singular pronoun shall be taken to mean and include the plural, the masculine, the feminine, and the neuter, and that revised 4/03 j1p generally all grammatical changes shall be made, assumed, and implied to make the provisions hereof apply equally to corporations and to individuals- Trade Contractor's Address: /3d J)•l/s?M&-Vt dW R . / 7111 Business Phone: 717 yyf Emergency Phone: 7/7 SS`s Z Z 3 ? Fag: -17 SLIo Y/ ?- Trade Contractor's Federal ID #: Incorporated.? Oyes []no LaMarco Heating and Cooling Printed Trade Contractor Company Name I Z4&,e-? 1--AM!344Ca 0 Printed a of Trade Contractor Accepted and Approved Signature o Trade Contractor Dat Custer Homes, Inc. Signature of Builder Builder's Address: 2805 Old Post Road, Suite 200 Harrisburg, PA 17110 Business Phone: (717) 232-6027 n revised 4103 r 4V 11-t Terms and Conditions 11 • • Construction Requirements: The work of all Trade Contractors, their employees, and/or trades a expected to be performed in a good and workmanlike mammer. Workmanlike quality is defined as wori®aoship which meets or betters those criteria indicated in the construction plans, The Company's Scope of Work and defined by industry standards for each trade. Inspection Reports: The Trade Contractor and a Company representative shall walk the job together and complete each section of the inspection report(s). The Trade Contractor must correct any deficiency found during the inspection and the job must be 100-percent complete before payment will be made. The Trade Coatractor and a Company representative must sign-off on all sections of the inspection reports(s) attesting that the job is correct and complete. Punch-List: The site superintendent shall inspect the work of each Trade Contractor and will issue a punch-list of all items requiring correction as soon as the Trade Contractor has completed his or her work The Trade Contractor is expected to immediately complete their punch-list so that he or she does not slow down the overall construction of the home and/or the scheduling of the next trade contractor. Should the Trade Contractor not return to complete his or her punch-list within a reasonable time then the site superintendent may hire someone to complete the punch-fist and the Trade Contractor will be back charged for this work The job will not be considered to be complete and no payment shall be made until all punch-list items are completed and approved by the site superintendent Homeowner's Walk-Through List Any items found on the homeowner's walk-through that require correction must be completed immediately upon notification by the site superintendent Time is of the essence for completing corrections on homeowner's walk-throughs. If any Trade Contractor does not rerun to correct his or her items listed on the walk-through list then someone else will be hired to make the corrections and the Trade Connector will be back charged Safe . The Trade Contractor acknowledges that he or she has/will complete the Safety Training programs as required by The Company and that he or she has his or her own Safety and Haz-Com program for their employees and/or nude contractors. Trade Contractor agrees to comply with OSHA and/or any other governmental agency's safety rules and regulations. Should any citations, fines, and/or penalties, etc., be incurred by The Company due to the negligence of the Trade Contractor, the Trade Contractor agrees to indemnify The Company for any and all penalties, fines, etc., incurred. Insurance: [Trade Contractor acknowledges that a requirement of working for The Company is for the Trade Contractor to have current Worker's Compensation and General Liability Insurance at all times. The Trade Coatractor agrees to indemnify The Company and to be responsible for any claims, expenses, or litigation arising from any claim made against The Company due to any injury of the Trade Contractor's employee or trade contractor for any worker's compensation claim. The Trade Contractor also agrees to indemnify The Company and to be responsible for any claims, expenses, or litigation arising from any claim made against The Company due to the workmanship, equipment, or materials supplied by the Trade Contractor.] It is your responsibility to notify us immediately if your insurance is canceled for any reason. No Trade Contractor is allowed to work without current insurance. Should you fail to notify us and we are notified of your uninsured status by someone other than you, you will be removed from our list of approved Trade Contractors and all money due you for any work will be withheld, in full, until you have current insurance and we have received a new original Certificate of Insurance. Security: The Trade Contractor is responsible for closing and locking all windows and doors before leaving the job site at the end of each day. If there is a problem on the job site due to Trade Contractor not closing and locking all windows and doors the Trade Connector shall be responsible for said negligence. Cleanliness: The Trade Contractor is responsible for leaving the work area clean and fire of debris. If it is necessary for The Company to remove debris left by the Trade Contractor, the Trade Contractor will be assessed a minimum clean-up fee of S 100.00. The site superintendent or other The Company representative will designate an area for all building debris and trash to be placed. Such area may be a dumpster or a designated trash pile on the lot Trash, such as lunch or snack trash, is not to be thrown on the floor of the house or on the jobsite. All such trash must be placed in the trash basket/can/dumpster and properly secured so as to not blow away. Port-&- johns are provided on all job sites. Any person found using sinks, tubs, commodes that are not hooked up, ductwork, closets, etc., as a toilet will be fined S 100.00 and will not be allowed back on any of The Company's jobsites. It is the responsibility of the Trade Contractor to impress on his or her employees and trade contractors that this offensive habit of using any area as a toilet facility will not be tolerated. Warran : All work is to be guaranteed for one (1) year from date of closing of the house. Certain items must be guaranteed for (2) years. These items are details in The Company's printed Limited Warranty booklet The Trade Contractor acknowledges that he or she received a copy of The Company's printed Limited Warranty booklet and drat he or she agrees to abide by the warranty coverage requirements and time period printed in this document as they pertain to his or her trade. Drug-Free Workplace The Company is a drug-free workplace. The use of any controlled substances (drugs) or alcohol on any of The Company's jobsite(s) is not permitted. Should the Trade Contractor, his or her employees and/or trade contractors be found to be in possession of either drugs or alcohol on the jobsite(s) the Trade Contractor will be requested to leave the jobsite and will not be allowed to return to work until the problem is corrected Pricing/Change Orden: All work is quoted and priced per home. Payment will be made per the price listed on the purchase order. Any change order will be priced per change order. No additional work will be considered, allowed, or paid other that that priced on the purchase order. Should the Trade Contractor be requested to perform any additional work the Trade Contractor must request a hand purchase order from the site superintendent before additional work is performed. Purchase Order Number. No invoice shall be paid that does not include the purchase order number for the job. The preprinted Request for Payment issued by The Company will be used as the invoice. Trade Contractor shall not begin work before The Company has issued a Purchase Coder. Damage and/or Wastefulness of Materials: Damage to materials and installed items such as flooring, windows, cabinetry, fxtim, etc., caused by negligence on the part of the Trade Contractor, his or her employees and/or trade contractors will result in backcharges for the amount necessary to replace or repair the item Wastefulness of materials by the Trade Contractor will result in the cost of the material being deducted from payment due the Trade Contractor. Proof of Name and IRS ID Number. The IRS requires that we have on file in our office proof that the name and Federal M number (or Social Security number) that you are working under is the same as is on file with the IRS. We require a copy of a document from the IRS showing your name and ID number (Federal M for businesses or Social Security number for individuals). You also will be asked to complete a Form W-9. Without this documentation the IRS requires that we withhold 20 percent of all money due you, which must then be forwarded to the IRS. The "insured name" on your insurance certificate must match the name on the docurents above and the W-9. All checks will be made payable to the name on the above. No insurance certificate will be accepted as valid that reflects a different name froZone a above-described documents. /- LT-a V Signature of Trade Contractor Date r? CERTIFICATE OF SERVICE I hereby certify that on this ?? fh day of , 2007, a true and correct copy of the foregoing Second Amended Complaint was served by means of United States mail, first class, postage prepaid, upon the following: W. Darren Powell, Esq. Corey J. Adamson, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 99 Harrisburg, PA 17108-0999 ?_ `y', ? ? c?. tv._ F ???' ?_;.? r _. _,, :? --' y {? -?"r _ '? ??'Y k fj r?"' -{ C.+ W. Darren Powell, Esquire Corey J. Adamson, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7639 Attorneys for Defendant HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiff V. LAMARCO CONTRACTING, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-4482 Civil JURY TRIAL DEMANDED NOTICE TO PLEAD TO PLAINTIFF: You are hereby notified to plead to the enclosed Answer with New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. DEFENDANT LAMARCO CONTRACTING, INC.'S ANSWER WITH NEW MATTER TO PLAINTIFFS' SECOND AMENDED COMPLAINT AND NOW comes Defendant LaMarco Contracting, Inc., by and through its attorneys, Thomas, Thomas and Hafer, LLP, and files the following Answer with New Matter to Plaintiff's Second Amended Complaint, and aver as follows: 1. Admitted based upon information and belief. 2. Admitted. 3. Admitted based upon information and belief. 4. Admitted based upon information and belief. 5. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph, and the same is denied pursuant to Pa.R.C.P. 1029(c). By way of further response, Exhibit A to Plaintiffs Second Amended Complaint is a document which speaks for itself. 6. Admitted in part with clarification. It is admitted that Custer Homes and LaMarco entered into an agreement for the installation of an HVAC system at the subject home. Exhibit B is a document which speaks for itself. The remaining averments of this paragraph are specifically denied and strict proof of the same is demanded at time of trial. 7. Admitted. 8. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied pursuant to Pa.R.C.P. 1029(d). 9. Denied. It is specifically denied that LaMarco's installation of the HVAC system was improper. To the contrary, LaMarco's work was performed with due diligence and reasonable care, in a workmanlike manner. 10. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied pursuant to Pa.R.C.P. 1029(d). 11. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph, and the same is denied pursuant to Pa.R.C.P. 1029(c). 2 12. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph, and the same is denied pursuant to Pa.R.C.P. 1029(c). 13. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph, and the same is denied pursuant to Pa.R.C.P. 1029(c). 14. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph, and the same is denied pursuant to Pa.R.C.P. 1029(c). 15. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph, and the same is denied pursuant to Pa.R.C.P. 1029(c). 16. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph, and the same is denied pursuant to Pa.R.C.P. 1029(c). 17. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph, and the same is denied pursuant to Pa.R.C.P. 1029(c). 18. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph, and the same is denied pursuant to Pa.R.C.P. 1029(c). It is further denied that LaMarco's work was done improperly. To the contrary, LaMarco's work was performed with due diligence and reasonable care, in a workmanlike manner. 3 19. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph, and the same is denied pursuant to Pa.R.C.P. 1029(c). 20. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph, and the same is denied pursuant to Pa.R.C.P. 1029(c). 21. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph, and the same is denied pursuant to Pa.R.C.P. 1029(c). 22. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph, and the same is denied pursuant to Pa.R.C.P. 1029(c). It is further denied that LaMarco's work was done improperly. To the contrary, LaMarco's work was performed with due diligence and reasonable care, in a workmanlike manner. 23. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph, and the same is denied pursuant to Pa.R.C.P. 1029(c). It is further denied that LaMarco's work was done improperly. To the contrary, LaMarco's work was performed with due diligence and reasonable care, in a workmanlike manner. 24. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph, and the same is denied pursuant to Pa.R.C.P. 1029(c). 4 25. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph, and the same is denied pursuant to Pa.R.C.P. 1029(c). 26. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied pursuant to Pa.R.C.P. 1029(d). COUNT I - NEGLIGENCE 27. Defendant hereby incorporates paragraphs 1 through 26 by reference as if the same were set forth fully at length herein. 28. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied pursuant to Pa.R.C.P. 1029(d). 29. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied pursuant to Pa.R.C.P. 1029(d). WHEREFORE Defendant respectfully requests this Honorable Court enter judgment in its favor and against Plaintiff. NEW MATTER 30. Some or all of Plaintiffs' claims may be barred by the expiration of the applicable statute of limitations. 31. Some or all of Plaintiffs' damages, if any, may have been caused by parties other than Answering Defendant. 5 32. Some or all of Plaintiff's damages, if any, may have been caused by Plaintiff's own actions or omissions or by Plaintiffs contributory and/or comparative negligence. 33. Plaintiff's claims and/or damages, if any, may be barred or reduced by Plaintiffs failure to mitigate said claims and/or damages. 34. Plaintiff's claims may be barred by the doctrine of laches or by Plaintiffs' unclean hands. 35. Plaintiffs claims may be barred by the defenses of release, accord and satisfaction, waiver, estoppel, the terms of a contract or agreement, or award and arbitration as may be shown by discovery in this case. 36. Plaintiff has failed to state a claim for which relief may be granted. 37. Defendant was not negligent in any manner whatsoever. 38. Any acts or omissions on the part of Defendant was not substantial causes or factors of the subject incident and/or did not result in the losses alleged by Plaintiff. 39. Plaintiffs alleged damages may be the result of pre-existing conditions or unrelated events and may not be a result of the incident alleged in Plaintiffs Second Amended Complaint. WHEREFORE, Defendant respectfully requests this Honorable Court enter judgment in its favor and against Plaintiff. 6 Respectfully submitted, Dated : 7" 5 e 7 By: W. Darreh Po II, Esquire Corson, Esquire I.D. MorthFront 8953 I.D. Tho as and Hafer, LLP 305 Street, P.O. Box 999 Harrisburg, PA 17101 (717) 255-7639 Attorneys for Defendant 519451.1 7 ATTORNEY VERIFICATION I, Corey J. Adamson, Esquire, of the law offices of Thomas, Thomas & Hafer, LLP, hereby verify that I am the attorney of record in this matter for Defendant, and that as such I am authorized to make this Verification in order to comply with the pertinent rules of civil procedure and that the information set forth in the attached documents are true and correct to the best of my knowledge, information and belief. I understand that any false statements contained herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. By: Date: July 30, 2007 520604.1 THOMAS, THOMAS & HAFER, LLP CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: Thomas J. Nehilla, Esquire Jennifer Zimmerman, Esquire RHOADS & SINON, LLP One South Market Square, 12th Floor P.O. Box 1146 Attorneys for Plaintiff THOMAS, THOMAS & HAFER, LLP 'Q " WaLu? &'?? Sherry Hau ein Dated: 7 ` 3 ` 7 9 4 V 4 N .. ?. ZI f..?. W CJ -.? W. Darren Powell, Esquire Corey J. Adamson, Esquire Thomas, Thomas & Hafer, LLP P. 0. Box 999 Harrisburg, PA 17108-0999 (717) 255-7639 Attorneys for Defendant HEIRLOOM CABINETRY OF IN THE COURT OF COMMON PLEAS PENNSYLVANIA, INC. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW V. NO. 06-4482 Civil LAMARCO CONTRACTING, INC. JURY TRIAL DEMANDED Defendant PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Please substitute the attached Verification for the Attorney Verification attached to Defendant's Answer with New Matter. Respectfully submitted, Dated: August 2, 2007 By: W. DWr_ well, Esquire I.D. 68953 Corey J. Adamson, Esquire I.D. No. 204508 Thomas, Thomas & Hafer, LLP 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7639 Attorneys for Defendant 521458.1 VERIFICA DON 1 have read the foregoing Answer with New Matter, and hereby affirm that it is true :end correct to the bast of my personal knowledge, information and belief, This Verification and staternent, is rnade SuIpjec:t to the penalties of 18 Pa,C S. § 490 relating to unswarn falcifioation to authorities; t verify that all the statements made in the foregoing are true and correct and' that-false statements ma,y.subject me to the penalties of 18 PaiC.S. § 4904. omec)IaM reo, for.LaMaroo Contracting, ]no, 8 CERTIFICATE OF SERVICE I, Nora A. Starnes, a legal secretary with the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: Thomas J. Nehilla, Esquire Jennifer Zimmerman, Esquire RHOADS & SINON, LLP One South Market Square, 12th Floor P.O. Box 1146 Attomeys for Plaintiff THOMAS, THOMAS & HAFER, LLP Nora A. Starnes, Legal Secretary Dated: August 2, 2007 2 C) C o p -r7 Film i' Thomas J. Nehilla, Esquire Attorney I.D. No. 67326 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff' HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. LAMARCO CONTRACTING, INC. Defendant CIVIL ACTION - LAW NO. 06-4482 Civil JURY TRIAL DEMANDED ANSWER TO NEW MATTER NOW COMES Heirloom Cabinetry of Pennsylvania, Inc. by its attorneys, Rhoads & Sinon LLP, and hereby submits the within Answer to New Matter of Defendant LaMarco Contracting, Inc., and avers as follows: NEW MATTER 30. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied pursuant to Pa. R. C. P. 1029(d). 31. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied pursuant to Pa. R. C. P. 1029(d). By way of further answer, it is specifically denied that M of Plaintiff's damages were caused by any other party. 660421.1 32. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied pursuant to Pa. R. C. P. 1029(d). By way of further answer, it is specifically denied that Plaintiff's damages were caused by its own actions, omissions, or by Plaintiff's contributory and/or comparative negligence. 33. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied pursuant to Pa. R. C. P. 1029(d). 34. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied pursuant to Pa. R. C. P. 1029(d). 35. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied pursuant to Pa. R. C. P. 1029(d). 36. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied pursuant to Pa. R. C. P. 1029(d). 37. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied pursuant to Pa. R. C. P. 1029(d). 38. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied pursuant to Pa. R. C. P. 1029(d). By way of further response, the acts and omissions by Defendant were the only causes or factors that resulted in Plaintiff's losses. 39. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied pursuant to Pa. R. C. P. 1029(d). By way of further response, it is specifically denied that the Plaintiff's damages are the result of any pre-existing condition or unrelated event. WHEREFORE, Plaintiff, Heirloom Cabinetry of Pennsylvania, Inc. respectfully requests this Court to enter judgment in favor of Plaintiff and against Defendant LaMarco Contracting, Inc., in the amount of $34,558.00. Respectfully submitted, RHOADS & SINON LLP DATED: August 17, 2007 By: Th as ehil PA I.D. No. 6732 Jennifer Zimmerman PA I.D. No. 89459 P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on this 17th day of August, 2007, a true and correct copy of the foregoing Answer to New Matter of Plaintiff Heirloom Cabinetry was served by means of United States mail, first class, postage prepaid, upon the following: W. Darren Powell, Esq. Corey J. Adamson, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 99 Harrisburg, PA 17108-0999 ' [ ? r" 7 11 f Anthony T. Lucido, Esquire Attorney I.D. No: 76583 Thomas, Thomas & Hafer,.LLP 305 North Front Street/P. 0. Box 999 Harrisburg, PA 17108-0999 717-441-7057 Attorneys for Defendant Lamarco Contracting, Inc. HEIRLOOM CABINETRY OF IN THE COURT OF COMMON PLEAS PENNSYLVANIA, INC. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW V. NO. 06-4482 Civil AMARCO CONTRACTING, INC. JURY TRIAL DEMANDED Defendant j FOR TO THE PROTHONOTARY: Please substitute the appearance of Anthony T. Lucido, Esquire as counsel on behalf of Defendant Lamarco Contracting, Inc. in the above-captioned matter. All papers may be served upon the undersigned at P.O. Box 999, Harrisburg, PA 17108- 0999. THOMAS, THOMAS & HAFER, LLP BY: C__Ze'? Date: /0 / ?' L(_ Anthony T. Lucido, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7057 I.D. No. 06776 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: Jennifer Zimmerman, Esquire RHOADS & SINON, LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Dated: THOMAS, THOMAS 86 HAFER, LLP Ll.ke T' mie L. Be 9 ._.s ?? ' .-.-t c? - ? ' +?5 _„ -?i _ ? :i> ? ?_ David W. Francis, Esquire Attorney I.D. No. 53718 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff CUSTOM DESIGN GROUP, INC., for the benefit of HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. and HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-4482 Cicil V. : JURY TRIAL DEMANDED LAMARCO CONTRACTING, INC. Defendant PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Kindly discontinue, without prejudice, the above-captioned matter and mark it closed for the record. SINON LLP By: Dated: March 17, 2008 DavicTW. Francis, Esquire Attorney I.D. No. 53718 One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 Phone: (717) 233-5731 Attorneys for Plaintiffs 682982.1 v CERTIFICATE OF SERVICE I hereby certify that on this 17th day of March, 2008, a true and correct copy of the foregoing Praecipe to Discontinue was served by United States mail, first-class, postage prepaid, upon the following: Corey J. Adamson, Esquire Anthony T. Lucido, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 2 0 F co ICJ Yt