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HomeMy WebLinkAbout06-6888IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CYNTHIA I. ALLEMAN, NO.: Plaintiff V. CIVIL ACTION - LAW YINGST HOMES, INC., Defendant JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CYNTHIA I. ALLEMAN, NO.: Plaintiff V. CIVIL ACTION - LAW YINGST HOMES, INC., Defendant JURY TRIAL DEMANDED NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso o notificacion y por cualquier quja o puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CYNTHIA I. ALLEMAN, NO.: O(. - ? (?I V Plaintiff l v. CIVIL ACTION - LAW YINGST HOMES, INC., Defendant JURY TRIAL DEMANDED PLAINTIFF'S COMPLAINT 1. Plaintiff, Cynthia I. Alleman is an adult individual residing at 1019 Jenkins Grove, Pennsylvania. 2. Defendant, Yingst Homes, Inc. is a Pennsylvania Corporation with offices at 4712 Smith Street, Harrisburg, Pennsylvania. 3. At all times relevant hereto, Defendant is in the business of the development, construction and sale of residential real estate in Cumberland County, Pennsylvania and regularly conducts business therein. 4. On or about March 19, 2002, plaintiff entered into an agreement with defendant for the purchase of a building lot and a home to be built at Lot 21, Whelan Crossing, East Pennsboro Township, Cumberland County, Pennsylvania for the total purchase price of $213,300.00. 5. All of the material decision as to the engineering and placement of the house on the lot were made by the defendant, by and through its agents, servants, workmen and employees. 6. Defendant completed construction of the home on or about October 16, 2002. 7. At all times relevant hereto, the house that plaintiff was purchasing from the defendant was intended to be used as her personal residence. On or about December 2005, plaintiff began to notice cracks in the basement drywall and gaps between the carpet and the bottom of the baseboard in the basement - defects caused by the settlement of the structure of her house. 9. Plaintiff believes and therefore avers that the reason her house settled so soon and so drastically is that the defendant built the home on fill that was not properly compacted and the foundation of the house was not placed on undisturbed natural soil. COUNTI-FRAUD 10. Paragraphs 1 through 9 above are incorporated herein by reference as if set forth at length. 11. At all times relevant hereto, agents, servants, workmen and employees of the defendant corporation had actual knowledge that the house was built on fill, that the fill was not properly compacted and that the foundation of the house was not placed on undisturbed natural soil. 12. At no time prior to the plaintiff's entering the agreement to purchase the lot, did the defendant disclose to the plaintiff that the house would be built on fill, that the fill was not properly compacted and that the defendant intended for the foundation of the house to be on other than undisturbed natural soil. 13. Due to the defendant's non-disclosure, plaintiff reasonably believed that the house was not to be built on fill, that in the event the house would be built on fill, the fill would be properly compacted and that the foundation would be placed on undisturbed natural soil. 14. Plaintiff purchased the house and lot based on her reasonable reliance on the defendant's non-disclosures. 15. As a direct and proximate of the defendant's deliberate non-disclosure of material facts, the plaintiff purchased a house that she would not have, had she been aware of the undisclosed facts, to her financial and emotional detriment. 16. As a direct and proximate result of the defendant's deliberate non-disclosure, as more specifically set forth above, plaintiff now owns a house that is unsafe to live in and is virtually worthless for resale purposes. 17. Plaintiff incurred various incidental costs including, but not limited to, the cost of moving, closing costs, payments on the house and costs of improvements to the house. WHEREFORE, Plaintiff, Cynthia I. Alleman respectfully requests this Court to enter judgment in her favor and against Yingst Homes, Inc. in an amount in excess of the compulsory arbitration limit, together with compensatory damages, incidental damages, punitive damages, rescission of the contract for the purchase of the lot and the house, costs, interest and such other relief as is deemed appropriate. COUNT II BREACH OF IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE 18. Paragraphs 1 through 17 above are incorporated herein by reference as if set forth at length. 19. At all times relevant hereto, the house built and sold by the defendant to the plaintiff was intended to serve as a residence for the plaintiff. 20. The defendant breached its implied warranty of fitness for a particular purpose by building a house on top of fill that was not properly compacted, by failing to place the foundation on undisturbed natural soil, by building the house too close to a slope and failing to incorporate appropriate erosion control measures in the design and construction of the house and lot. 21. Due to the defendant's actions, as more specifically set forth in paragraph 20 above, the house is not safe for use as a residence and is virtually worthless for resale purposes. WHEREFORE, Plaintiff, Cynthia I. Alleman respectfully requests this Court to enter judgment in her favor and against Yingst Homes, Inc. in an amount in excess of the compulsory arbitration limit, together with compensatory damages, incidental damages, rescission of the contract for the purchase of the lot and the house, costs, interest and such other relief as is deemed appropriate. COUNT III UNFAIR TRADE PRACTICES 22. Paragraphs 1 through 21 above are incorporated herein by reference as if set forth at length. 23. At all times relevant hereto, the purchase of the lot and house referred to above was intended for use as the plaintiff's personal residence. 24. The defendant's conduct, as more specifically set forth above constitutes an unfair trade practice under the Unfair Trade Practices and Consumer Protection Law (UTPCPL). 25. The defendant's violation of the UTPCPL entitles plaintiff to treble damages and counsel fees and a demand is made therefor. WHEREFORE, Plaintiff, Cynthia I. Alleman respectfully requests this Court to enter judgment in her favor and against Yingst Homes, Inc. in an amount in excess of the compulsory arbitration limit, together with compensatory damages, incidental damages, treble damages, counsel fees, rescission of the contract for the purchase of the lot and the house, costs, interest and such other relief as is deemed appropriate. COUNT IV NEGLIGENCE 26. Paragraphs 1 through 25 above are incorporated herein by reference as if set forth at length. 27. The defendant, by and through its agents, servants, workmen and employees was negligent in the design and construction of the house in that they: a. built the house on fill that was not properly compacted; b. built the foundation on other than undisturbed natural soil; c. built the house too close to a slope; and d. built the house without incorporating erosion control measures. 28. As a direct and proximate result of the defendant's negligence, as more specifically set forth above, plaintiff has suffered economic and emotional damages. WHEREFORE, Plaintiff, Cynthia I. Alleman respectfully requests this Court to enter judgment in her favor and against Yingst Homes, Inc. in an amount in excess of the compulsory arbitration limit, together with compensatory damages, incidental damages, costs, interest and such other relief as is deemed appropriate. COUNT V BREACH OF CONTRACT 29. Paragraphs 1 through 28 above are incorporated herein by reference as if set forth at length. 30. A true and correct copy of the building specifications, which specifications were drafted by the defendant, for the house are attached hereto as Exhibit A and incorporated herein by reference. 31. Under the terms of the specifications, the defendant was supposed to construct the footers "As Per Code". 32. The defendant failed to construct the footers "As Per Code", in that the footers were: a. not supported on undisturbed natural soils or engineered fill; b. on compressible or shifting soil; and c. designed and built with improper drainage. 33. As a direct and proximate result of the defendant's breach of contract, plaintiff has suffered financial and emotional harm and a claim is made therefor. WHEREFORE, Plaintiff, Cynthia I. Alleman respectfully requests this Court to enter judgment in her favor and against Yingst Homes, Inc. in an amount in excess of the compulsory arbitration limit, together with compensatory damages, incidental damages, rescission of the contract for the purchase of the lot and the house, costs, interest and such other relief as is deemed appropriate. Date: Girard . Rickards, Esquire Attorney ID No.: 58867 P.O. Box 11570 Harrisburg, PA 17108-1570 (717) 230-8309 VERIFICATION I verify that the statements made in this Plaintiff's Complaint are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of this lawsuit. The language is that of counsel and not my own. To the extent that the contents are based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents are that of counsel, I have relied on my counsel in making this verification. I understand that false statements are made subject to penalties of 18 Pa.C.S.A. section 4904, relating to unworn falsification to authorities. r1 ate Cynthia I. Alleman ?khib?t Rev 3/01 SPECIFICATIONS NEW CONSTRUCTION - RESIDENTIAL Owner/Mortgagor 0 ryU'?? Address of Property 42, Gf/ Contractor: Yingst Homes, Inc. 4712 Smith Street Harrisburg, PA 17109-1718 OWNER POSSESSION AND SETTLEMENT: It shall be understood that before the Owner takes possession of the house, all outstanding invoices, charge orders, and extra's shall be paid in full and settlement made with Contractor. Contractor reserves right to substitute material as to like quality, where reasonably necessary. EXCAVATION: Footers: As Per Code /Q Basement Walls: Size: 10"A 8" Material: Poured Wall Height--7-?j_ Waterproofing: Tar Area Wells: Size: 18" Drain Tile shall be installed along basement wall footings and excited to sump hole in basement or surfaced. (Note: Pump is not included.) While proper steps are to be taken to avoid water problems, the Contractor does guarantee a dry basement from standing water; provided there is no unusual condition. If encountered contractor will work with owner at owners expense to remedy problem. Contractor will not assume liability from water damages. Basement Floors: Mix: 3500 Thickness: 4" No. of Floor Drains: 1 or Sump Hole Note: It is not uncommon to see hairline cracks in concrete flooring after curing. Framing Carpentry: Sill: Size: 2 x 6 Girder or Beam: Size: 8" First Floor Joists: Size: 2 x 10 Sub Floor: Size: 3/." Bridging: Exterior Wall Studding: Size: Exterior Wall Plates: Size: No. of Exterior Wall Plates: Exterior Wall Sheathing: Size: 2x4 2x4 Material: Material: Material: Material: Material: Material: Material: Bottom 1, Top 2 1/Z" Material Wood Pressure Treated Steel Wood T&G Advantec or Equivalent, laid lap, nailed, and glued Metal, Spacing Two Rows, Mid Span Wood, 16" on Center Wood Thermax/ OSB 2 Siding: Material: Vinyl Interior Wall Studding: Size: 2 x 4 Material: Wood, 16" on Center Interior Wall Plates: Size: 2 x 4 Material: Wood No. of Interior Wall Plates: Bottom 1, Top 2 Headers: All Frame Bearing Walls - Each Header to be Secure, being on at least one Jack Stud Opening up to 3' - Header Size: 2 - 2 x 10, Wood Opening 3' to 9' - Header Size: 2-2x 10, Wood Opening 9' - Header Size: Engineered Basement Stairway: Horses: No. of Horses: Rise: Tread: Tread: Second Floor Joists As per,code and manufacturer As per code and manufacturer As per code and manufacturer As per code and manufacturer As per code and manufacturer Size: 2x 10 or Material: engineered per plan Wood, Placed 16" on Center Metal - Spaced Two Rows Advantec or Equiv., laid, lap, nailed, and glued Bridging: Material: 2nd Floor Sub-Flooring: Size: 3/4" Material: Ceiling Joists: Size: 2 x 6 or 2 x 4 if Trusses Placed 16" (2 x 6) or 24" (Trusses) on Center Note: Access to Attic provided by Panel Roof Rafters: Size: 2 x 6 or 2 x 4 Material: Wood if Trusses Placed 16" (2 x 6) or 24" (Trusses) on Center If Ridge: Size: 2 x 8 Material: Wood If Hip Roof: Rafter: Size: 2 x 6 Roof Sheathing Material: Size: '/2" Material: OSB Board Roofing: Underlay: Material: Felt, Weight #15 Shingle Exposure: Size: 5" Material: 25 Year O/C Oakridge II Cornice: Face Board: Size: 6" Material: Wood Covered by Aluminum Soffit: Material: Vinyl Rakeboard: Size: 2 x 6 Material: Wood Covered by Aluminum Windows: Type: Nappco Vinyl or United or Anderson Glass Thickness: D-P Weatherstrip: Material: Vinyl, Bal. Note: Provided with Screens Exterior Doors: Material: Metal Prehung or Fiberglass 3 Attic Ventilation: Masonry Above Foundation: Wall Tie on Frame., Fireplace: Interior Carpentry: Finish Floor: Stair Work: Horses: No. of Horses: Rise: Tread: Rise: Tread: Banister or Railing: Interior Door : Ridge Vent Size: 2 x 8 Material: Brick or as per plan Material: Masonry or manufactured Size: '/a" Underlayment for congolium/ vinyl As per-code and manufacturer As per code and manufacturer As per code and manufacturer As per code and manufacturer As per code and manufacturer As per code and manufacturer Per code Style: 6 panel, 13/8" thick Material: Masonite, Three Hinges Hardware Make: Schlege or Equiv., Gold Finish, Lever Style Jamb: Size: 4'/z" Material: Wood Door Stop: Size: 1" Material: Wood Baseboard: Size: 3 -'/z" Window Sill: Size: 3" Material: Wood Closet Rods: Material: Vinyl and Metal Closet Shelf: Material: Vinyl and Metal Note: Door Bumps on Wall Interior Wall Surface: Size: '/2" Material: Drywall Kitchen Equipment: Cabinet: Make: Seifert or Equiv. Material: Wood Counter Top: Material: Formica Sink Bowl: Size: As per Allow. Material: As per Allowance Equipment and Accessories: Dishwasher: Microwave: Smooth Top Electric Range: Note: Built-ins by Owner: Contractor shall provide labor and material for the installation of built-in equipment hereby specified. Contractor shall connect with water, gas or electric, supply the equipment he installs and shall put it into working operation. Any appliances not included in the original contract will not be installed by the Contractor. Plumbing: Bath Tubs: Make: Asper Allow. Material: Passive Radon Pipe (under slab) No. of Bath Tubs: See Print Commodes: Make: Asper Allow. 4 No. of Commodes: Lavatories: No. of Lavatories: Water Heater: Fuel: Water Supply Pipes: Drainage Pipes: Vent Stacks: See Plan Size: One Piece See Plan Size: allon Make: El s Size: a' Material: Size: 3 Material: Material: Bradford White or Equiv. Copper ABS ABS No. of Vent Stacks: As Per Code Water Supply: Private: Public: Sewer: -Private: Public:_ Heat: Heat System shall be designed to heat all of the living area to a minimum temperature of 70°F when exterior temperature is 0°F. Trane or Equivalent: Size: Per Plan Duct or Pipe: Size: Calculated Material: Ins. Forced Air Heat with Central Air Fuel: Gas/Elec./Oil r Fuel Storage: Size: Electric: Electric Cable: Size: 200 AMP Breaker Box: Make: Sq. D. or Equivalent No. of Circuits: 40 Size Wire to Normal Circuits: 12/2 and 14/2 Size Wire to Range and Oven: 08 Size Wire to Other Special Equipment: No. of Convenience Outlets: As Per Code No. of Overhead Fixtures: As per Allow. No. of Basement Lights: 4 No. of Outside Lights/Outlets: 4 Outlets to be Grounded: All Telephone Wiring to Be Concealed: 5 Locations Allowed Cable TV Wiring to Be Concealed: 5 Locations Allowed Insulation: Exterior Walls Ceiling: Gutter and Down Spouts: Gutter: Drop: Chimney Flashing: Walks and Drives: Walk: Thickness: 4" Width: 36" From Drive to Front Porch Thickness: As per code Thickness: R-38 Where applicable Type: Fiberglass Type: Fiberglass Material: Aluminum Material: Aluminum Material: Aluminum Size: 5" Size: 3" Material: Concrete-walk Asphalt-driveway Front Porch: Railing: Garage Floor: Garage Door: Size: Per Drawing Material Material Thickness: 4" Material Thickness: 5/4" Material List Any Special Work or Material Not Covered Above: Concrete t4 7 Concrete Aluminum-Insulated, Paneled Allowances: = n ?, Kitchen Cabinets, Vanities, and Installation: Counter Tops:1 ()(5 ("D Whirlpool: ?61 JACI J J Tile Allowance: / ©0 0 Driveway: Grade-Stone-Curb & Top 0 U food &U64 k1? ?l Total Flooring: $20.00/yd2 Carpet and Vinyl. Flooring Allowance shall include all carpeting, congoleum, tile, padding, underlayment, and installation charges. Any cost overruns shall be paid by the Owner directly to the flooring subcontractor. Lighting: I (at) D & r--( .???6 0 djati d avq 'ry'f-0 1 Throughout these specifications, the Owner will be confronted by the occasional utilization of allowances. Allowances are utilized where practical, to allow the Owner as much latitude as possible to design and furnish their home to suit their individual tastes. The dollar figure represents an approximate price for which the Contractor believes quality items may be purchased and installed, including sales tax. It is understood that the owner alone is responsible for staying within his allocation for each item and that if he exceeds the allowance, the additional cost will be paid to the Contractor at the onstruction payment scheduled immediately following completion of the mentioned work. Owner Contractor: Yhigst Homes, Inc. `:7 r i' ? ? By: -{-? ° c ` i rn ?" N c 1 , R cv F r 0 0 Johnson, Duffie, Stewart & Weidner By: John A. Statler, Esq. I.D. No. 43812 Wade D. Manley I.D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@jdsw.com CYNTHIA ALLEMAN, Plaintiffs V. YINGST HOMES, INC., Defendants NOTICE TO PLEAD TO: CYNTHIA ALLEMAN, Plaintiff c/o Girard E. Rickards, Esq. P.O. Box 11570 Harrisburg, PA 17108 NO. 06-6888 CIVIL ACTION - LAW JURY TRIAL DEMANDED AND NOW, this 28th day of December, 2006, you are hereby notified to file a written response to the enclosed Preliminary Objections within 20 days of the date of service hereof or judgment may be entered against you. By- • A. Statl r, John I.D. No. 43812 Wade D. ManleKy Attorney I.D. No. 87244 Johnson, Duffie, Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17043 Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esq. I.D. No. 43812 Attorneys for Defendants Wade D. Manley I.D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@jdsw.com CYNTHIA ALLEMAN, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 06-6888 V. YINGST HOMES, INC., CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendants DEFENDANT'S PRELIMINARY OBJECTIONS TO THE PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Yingst Homes, Inc., by and through their counsel, Johnson, Duffie, Stewart & Weidner, P.C. and file these Preliminary Objections to the Plaintiff's Complaint by respectfully stating the following: 1. This matter was commenced in this Court via the filing of a Complaint on November 30, 2006. A copy of the Plaintiffs' Complaint is attached hereto as Exhibit "A". 2. The Plaintiff alleges that the Defendant built her hoe on fill that had not been compacted and therefore caused her house to settle too soon, leading to defects within her house.. See, Exhibit "A", ¶¶ 8-9. 3. The Plaintiff has asserted five (5) counts setting forth her theories of liability including: Count I - Fraud; Count II - Breach of Implied Warranty of Fitness for a Particular Purpose; Count II I - Unfair Trade Practices; Count IV -Negligence; and Count V - Breach of Contract. See, Exhibit "A". I. PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(a)(4) - LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) 4. Paragraphs 1-3 of the Defendants' Preliminary Objections are incorporated herein by reference. 5. Pennsylvania Rule of Civil Procedure 1028(a)(4) states, "Preliminary Objections may be filed by any party to any pleading and are limited to the following grounds:... (4) legal insufficiency of a pleading (demurrer)." Pa.R.C.P. 1028(a)(2). 6. The Plaintiff alleges that the Defendant is liable for fraud in failing to disclose that her house was built on fill that was not properly compacted. 7. Regardless of the fact whether or not the house was actually built on un- compacted fill or not, the Plaintiff is required to plead the material elements of fraudulent concealment in order to survive a preliminary objection. 8. Mere silence in the absence of a duty to speak cannot suffice to prove fraudulent concealment. GMH Associates. Inc. v. Prudential Realty Group, 752 A.2d 889 (Pa.Super. 2000). 9. The Plaintiff is required to plead that the Defendant had a duty to disclose the material fact that the Plaintiff is claiming the Defendant failed to conceal. 10. Without actually knowing whether the house was built on un-compacted fill, the Plaintiffs Complaint failed to plead that the Defendant had a duty to disclose that her house was built on fill as plead. WHEREFORE, the Defendant respectfully request that this Honorable Court strike Count I of Plaintiffs' Complaint with prejudice, or in the alternative, require the Plaintiffs to file a more specific pleading. It. PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1019(b) - FAILURE TO PLEAD WITH PARTICULARITY 11. Paragraphs 1-10 of the Defendant's Preliminary Objections are incorporated herein by reference. 12. Pennsylvania Rule of Civil Procedure 1019(b) states, "Averments of fraud or mistake shall be averred with particularity." Pa.R.C.P. 1019(b). 13. Count I of the Plaintiffs Complaint fails to aver what duty the Defendant had to disclose the information, why the duty was applicable to the Defendant or even how the Plaintiff believes that the house was built on an improper foundation. 14. Without pleading the material elements of a claim for fraudulent non-disclose, the Plaintiff failed to plead the matter with particularity as required. WHEREFORE, the Defendant respectfully request that this Honorable Court strike Count I of Plaintiffs' Complaint with prejudice, or in the alternative, require the Plaintiffs to file a more specific pleading in order to comply with Pa.R.C.P. 1019(b). Ill. PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(a)(4) - LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) 15. Paragraphs 1-10 of the Defendant's Preliminary Objections are incorporated herein by reference. 16. Pa.R.C.P. 1019(a) states, "The material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Pa.R.C.P. 1019(a). 17. The Plaintiffs have failed to aver with specificity the factual basis upon which the Plaintiffs rely in support of her claims under the Unfair Trade Practices and Consumer Protection Law (UTPCPL) in Count III. 18. The UTPCPL provides a list of practices that violate the UTPCPL and the Plaintiff has failed to specify what sections of the UTPCPL she alleges that the Defendant violated. 19. The Plaintiff alleges the Defendant's conduct violated the UTPCPL, however, the allegation is too broad to survive an objection as it fails to put the Defendant on notice of what section of the UTPCPL the Plaintiff alleges the Defendant violated. WHEREFORE, the Defendants' respectfully request that this Honorable Court strike Count III of Plaintiffs' Complaint with prejudice, or in the alternative, require the Plaintiffs to file a more specific pleading in order to comply with Pa.R.C.P. 1019(a). IV. PRELIMINARY OBJECTION PURSUANT TO PA.R.C.P. 1028(a)(4) - LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) 20. Paragraphs 1-19 of the Defendant's Preliminary Objections are incorporated herein by reference. 21. Pennsylvania Rule of Civil Procedure 1028(a)(4) states, "Preliminary Objections may be filed by any party to any pleading and are limited to the following grounds:... (4) legal insufficiency of a pleading (demurrer)." Pa.R.C.P. 1028(a)(2). 22. The economic loss doctrine states that a tort claim arising out of a contractual relationship cannot be asserted when seeking economic damages. Spivack v. Berks Ridge Corporation. Inc., 402 Pa. 73, 586 A.2d 402 (1991). 23. The Plaintiff has not sufficiently plead any damages other than economic damages. 24. It is understood the Plaintiff claims "emotional" damages, but does not describe in any way what those damages were. 25. It is clear the Plaintiff threw that claim in her Complaint merely in an attempt to avoid this specific objection and failed to provide any factual support for the claim and therefore Count IV should be stricken. WHEREFORE, the Defendant respectfully request that this Honorable Court strike Count IV of Plaintiffs' Complaint with prejudice. V. PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(a)(4) - LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) 26. Paragraphs 1-25 of the Defendant's Preliminary Objections are incorporated herein by reference. 27. The Plaintiff alleges a breach of contract claim against the Defendant for failing to construct the footers of the house to Code. 28. The Plaintiff fails to state what Code she is alleging the footers were not built in compliance with therefore there is no standard plead to sufficiently allege that the Defendant breached a contractual obligation. 29. Therefore, as plead, the Plaintiffs breach of contract claim must fail. WHEREFORE, the Defendants' respectfully request that this Honorable Court strike Count V of Plaintiffs' Complaint with prejudice, or in the alternative, require the Plaintiffs to file a more specific pleading. VI. PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(a)(2) - FAILURE OF A PLEADING TO CONFORM TO LAW OR RULE OF COURT 30. Paragraphs 1-29 of the Defendant's Preliminary Objections are incorporated herein by reference. 31. Pennsylvania Rule of Civil Procedure 1019(i) states, "When any claim is based upon a writing, the pleader shall attach a copy of the writing." Pa.R.C.P. 1019(1) 32. Attached to the Complaint is the specifications of the building, but the specifications is not a binding contract between the parties. 33. The Plaintiff has based her breach of contract claim on a document that contains nothing more than measurements and materials. 34. There are no promises exchanged in the document the Plaintiff has attached to the Complaint and is therefore insufficient to support a breach of contract claim. WHEREFORE, the Defendants' respectfully request that this Honorable Court strike Count V of Plaintiffs' Complaint with prejudice, or in the alternative, require the Plaintiffs to file a more specific pleading. VII. PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(a)(4) - LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) 35. Paragraphs 1-34 of the Defendant's Preliminary Objections are incorporated herein by reference. 35. Punitive damages can not be awarded where a defendant's alleged conduct merely constitutes ordinary or even gross negligence. Houston v. Texaco. Inc., 371 Pa.Super. 399, 538 A.2d (1988). Therefore, a Plaintiff is required to plead that a defendant's conduct was malicious, willful, wanton, reckless or oppressive. Id. 36. Even though punitive damages are not a separate cause of action, the Plaintiffs are still required to plead the facts they claim support their claim for punitive damages. Schock v. T.J. Care, Inc., 65 Pa. D. & C. 4th 517, 2004 WL 1570109 (Fay. Cty. C.P. 2004). 37. It is essential for the Plaintiffs to allege each and every element that constitutes the nature of their claim, including their claim of punitive damages. Nido v. Chambers, 70 Pa.D.& C. 2d 129, 1975 WL 16621 (Law. Cty. C.P. 1975). 38. Plaintiff's Complaint fails to allege the required elements to support a claim for punitive damages, requiring the Plaintiffs' demand for punitive damages to be stricken. 39. The Plaintiffs have failed to allege a single fact that the Defendant possessed the knowledge required to elevate the Defendant's actions to being malicious, willful, wanton, reckless or oppressive. 40. In determining whether punitive damages are appropriate, the court must determine the nature of the tortfeasor's act, together with his motive, the relationship between the parties, and other attendant circumstances. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). 41. Punitive damages are awarded to punish a Defendant and are only appropriate when the conduct is especially grievous and must not be allowed when mere negligence in the form of inadvertence, mistake or errors in judgment is alleged. Id. 42. Plaintiffs' Complaint alleges nothing more than the Plaintiffs' belief that the Defendant improperly built the house foundation. The Plaintiffs set forth no facts regarding the maliciousness, willfulness, wantonness or oppressive nature of the Defendant's conduct. WHEREFORE, the Defendants respectfully request that this Honorable Court strike the Plaintiffs demand for punitive damages with prejudice. :289230 Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: / N(" i John A. Statl r, - q. I.D. No. 43812 Wade D. Manley Attorney I.D. No. 47-2 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 CERTIFICATE OF SERVICE AND NOW, this r O'?'day of Yw`+•?r., , 2006, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Girard E. Rickards, Esq. P.O. Box 11570 Harrisburg, PA 17108 JOHNSON, DUFFIE, STEWART & WEIDNER 'nl By: Wade D. M le , squire r-Y? ?"'1 ``=? ^ Tl (`" ,_ r-E G=' )'_ r? + ." ?. '? t,S'? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CYNTHIA I. ALLEMAN, NO.: 06-6888 Civil Term Plaintiff V. YINGST HOMES, INC., Defendant JURY TRIAL DEMANDED PRAECIPE FOR CHANGE OF ADDRESS UPON THE RECORD TO THE PROTHONOTARY: Kindly update the docket to reflect the address of Girard E. Rickards, Esquire to 44 East Philadelphia Street, York, Pennsylvania 17401. Date: L x/97 Girard . Rickards, Esquire Attorney Id No. 58867 44 East Philadelphia Street York, PA 17401 717 845-4038 f I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CYNTHIA I. ALLEMAN, NO.: 06-6888 Civil Term Plaintiff V. : YINGST HOMES, INC., Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Girard E. Rickards, attorney for the plaintiff do hereby certify that on this day I have served the defendant with a true and correct copy of the foregoing Praecipe for Change of Address Upon the Record, via firstclass mail, postage prepaid as follows: John A. Statler, Esquire Johnson Duffle Law Offices P.O. Box 109 Lemoyne, PA 17043 Date: (?l l? Girard E. Rickards, squire Attorney Id No. 58867 44 East Philadelphia Street York, PA 17401 717 845-4038 rM .?, .. ?--t ? T? F -_ y? P'-+j ?? '_ ?- ; ?; _, _. ;;-., ? fi`1 - k M --? ? ; y ?T _., SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2006-06888 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ALLEMAN CYNTHIA I VS YINGST HOMES INC R. Thomas Kline , Sheriff or Deputy Sheriff duly sworn according to law, says, that he made a diligent and inquiry for the within named DEFENDANT to wit: ho being earch and but was unable to locate Them in his bailiwick. He thetill fore i deputized the sheriff of DAUPHIN County, Penns ania, to serve the within COMPLAINT & NOTICE On December 19th , 2006 this ottice was in receipt attached return from DAUPHIN Sheriff's Costs: So answers: -- Docketing 18.00 Out of County 9.00 Surcharge 10.00 K ine Dep Dauphin County 37.25 Sheriff of Cumberland C Postage 1.50 75.75 12/19/2006 GIRARD RICKARDS Sworn and subscribe to before me this day of A. D. t the ty (office of t4e Sh-criff 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 Commonwealth of Pennsylvania County of Dauphin ALLEMAN CYNTHIA vs YINGST HOMES INC Sheriff's Return E. Sheaffer ;f Deputy W. Rinehart Chief Deputy No. 1929-T - - -2006 OTHER COUNTY NO. 06-6888 CV AND NOW:December 8, 2006 at 11:48AM served the within NOTICE & COMPLAINT upon YINGST HOMES INC by personally handi to ANN BERNECKER, RECEPTIONIST 1 true attested opy(ies) of the original NOTICE & COMPLAINT an making known to him/her the contents thereof at 4712 SMITH ST HBG, PA 17112-0000 So Answers, Sworn and subscribed to before me this 11TH day of DECEMBER, 2006 ? ? e;;*,I? Sheriff of Dauftin Coun , Pa. 1 A/ NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept. 1, 2010 By Deputy Sheri Sheriff's Costs:$37.25 12/06/2006 RCPT NO 24201 GMILLER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CYNTHIA I. ALLEMAN, Plaintiff V. NO.: 06-6888 Civil Term CIVIL ACTION - LAW YINGST HOMES, INC., Defendant PRAECIPE FOR CHANGE OF ADDRESS UPON THE RECORD TO THE PROTHONOTARY: Kindly update the docket to reflect the address of Girard E. Rickards, Esquire 135 South Duke Street, York, Pennsylvania 17401. Date: (o Gir . Rickards, Esquire Attorney Id No. 58867 135 South Duke Street York, PA 17401 717 845-4038 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CYNTHIA I. ALLEMAN, Plaintiff V. NO.: 06-6888 Civil Term CIVIL ACTION - LAW YINGST HOMES, INC., Defendant CERTIFICATE OF SERVICE I, Amy Menache, do hereby certify that on this day I have served the Defendant with a true and correct copy of the foregoing Praecipe For Change of Address Upon The Record, via first class mail, postage prepaid as follows: John A. Statler, Esquire Johnson Duffie Law Offices P.O. Box 109 Lemoyne, PA 17043 Amy nache, Legal Assistant DATE: ( a-' r-3 ca p .ny f 330388 CYNTHIA I. ALLEMAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. YINGST HOMES, INC., Defendant NO. 06-6888 CIVIL ACTION - LAW JURY TRIAL DEMANDED WITHDRAW OF APPEARANCE TO THE PROTHONOTARY: Please withdraw the appearance of the undersigned as counsel for .Ddeadaft- Cynthia Alleman, in the above-captioned matter. rl? Date: Respect By. Girard Ri ards, Esquire Attorney I.D.458867 Law Offices of Girard E. Rickards 135 South Duke Street York, PA 17401 `-1' 0 r ril - ^?? co ys ii jt 330381 DICKIE, MCCAMEY & CHILCOTE, P.C. BY Charles E. Haddick, Jr., Esquire ATTORNEY FOR: PLAINTIFF ATTORNEY I.D. NO. 55666 CYNTHIA ALLEMAN BY Grant W. Schonour, Esquire ATTORNEY I.D. NO. 93282 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 (717)7314800 (Tele) (717)7314803 ax CYNTHIA I. ALLEMAN, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. YINGST HOMES, INC., Defendant NO. 06-6888 CIVIL ACTION - LAW JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the undersigned as counsel for Befmd , Cynthia Alleman, Plaaff,-ff in the above-captioned matter. Date: July 25, 2008 By: Respectfully submitted, DICKIE, MCCAMEY & CHILCOTE, P.C. C les E. Haddick, Jr., Esquire ORNEY I.D. NO. 55666 F t W. Schonour, Esquire ORNEY I.D. NO. 93282 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 (717) 731-4800 Attorney for Defendants, Cynthia Alleman CERTIFICATE OF SERVICE AND NOW, July 25, 2008, I, Grant W. Schonour, Esquire, hereby certify that I did serve a true and correct copy of the foregoing ENTRY OF APPEARANCE upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: By First-Class Mail: Girard Rickards, Esquire 135 S. Duke Street York, PA 17401 John A. Statler, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (Defense Counsel) W _ f 1 ?5 co t ? +- , 735343.doc DICKIE, MCCAMEY & CHII.COTE, P.C. BY: Charles E. Haddick, Jr., Esquire ATTORNEY FOR: PLAINTIFF ATTORNEY I.D. N0.55666 CYNTHIA ALLEMAN BY: Grant W. Schonour, Esquire ATTORNEY I.D. N0.93282 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 (717)731-4800 (Tele) 717 731-4803 ax) CYNTHIA I. ALLEMAN, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiff, PENNSYLVANIA o w. N0.06-6888 ~ ~.~~ YINGST HOMES, INC., CIVIL ACTION -LAW cz~ C~; ~ ._~ Defendant. ~~ -~~ w JURY TRIAL DEMANDED PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Please mark this case settled, discontinued and ended, with prejudice. Respectfully submitted, Date: September 7, 2010 DICHIE, MCCAMEY & CHILCOTE, P.C. e,~ Charles E. Haddick, Jr., Esquire ATTORNEY I.D. NO. 55666 Grant W. Schonour, Esquire ATTORNEY I.D. NO. 93282 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011-3700 (717) 731-4800 Attorney for Defendants, Cynthia Alleman • . CERTIFICATE OF SERVICE AND NOW, September 7, 2010, I, Charles E. Haddick, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing PRAECIPE TO SETTLE,. DISCONTINUE AND END upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: By First-Class Mail: John A. Statler, Esquire JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (Defense Counsel ) Ch .Haddick, Jr., Esquire